We have here, not a case where the city council, in proceeding along proper lines, commits some minor error or irregularity. We have a bold attempt at assessing property without the establishment of any grade whatsoever, and after the property owners refuse to pay the assessment as made, the city council undertakes to fit a paper grade to the gravel grade already built. By this method, the city graveled the street and attempted to make the property owners *Page 1387 pay for it without the establishment of a paper grade. If the property owner did not go to the trouble and expense of testing the question and had paid the assessment, then later the city council could establish any paper grade it desired, change the grade in front of the property assessed, and make the property owner pay for the new grading also. Moreover, the property owner would be prevented from recovering damages because of a "change of grade," because, manifestly, in that case, there would be nochange of grade.
In other words, had the plaintiffs in this case paid this assessment, the city of Des Moines might not have established any paper grade to fit the gravel already constructed. Later, the city council might establish a paper grade very much different from the gravel grade already laid, and thereafter bring the street to the paper grade. For this second improvement the property owner might also be asked to pay, and, moreover, the property owner would be foreclosed from recovering any damages for change of grade, because, manifestly, the last grade established would not be a change of grade. It would be the first and only grade actually established.
This is not a case where the paper grade was established at such a time as that the gravel grade was actually laid to the paper grade. We have here an attempt to establish a paper grade after the improvement has been made and the assessments have been made and attempts to collect them have been made.
True enough, the city has the right to grade and improve the street and pay for it out of the general fund, any time and without an established paper grade; but if the property is to be assessed for the cost of the improvement, this can only be done when and if a paper grade has been established and the improvement has been made substantially in accordance therewith.
When the property owner received the notice here shown, he had the right to assume that the improvement being made was one to be paid for out of the general fund, and not to be assessed against the property owner; or he had the right to assume, at all events, that no grading would be done without the establishment of a paper grade as provided by law.
It cannot be incumbent upon a property owner to search the records of the city to ascertain whether a grade has been *Page 1388 established before an improvement is made and to determine whether the proposed improvement is merely an exercise of the general powers of the city to improve the street, which improvement is to be paid for out of the general fund, or whether the improvement is to be assessed against the property owner because made in accordance with an established paper grade.
Certainly it is not asking too much of a city to follow the statute and first establish a paper grade in order that it may have jurisdiction to improve the street according to said grade before it can assess the property owners with the cost thereof.
I do not think the city council can, under any circumstances, make an improvement such as the one under consideration without having first established a paper grade to which and in accordance with which the improvement is substantially made, if the property owner is expected to pay the price.
The action of the city council in this case was absolutely void, and the aggrieved property owners have a perfect right to enjoin the assessment.