#### Cedar Rapids *&*Marion City Railway Company, Appellant, v. John M. Redmond, Mayor of the City of Cedar Rapids, Iowa, *et al.*

'Taxation: increase op assessments: notice: waiter. The provision of an ordinance of a special charter city that before the board of equalization can increase an assessment a notice containing an alphabetical list of the owners of the property and its assessed valuation shall be posted at the door of the collector’s office, must be strictly complied with before an assessment can he legally increased; and the fact that a taxpayer may know of the proposed increase and appears before the hoard of equalization for the purpose of explaining his assessment, and to protest against the action of a committee recommending an increase, will not constitute a waiver of the posted notice required by the ordinance.

*.Appeal from Linn District Court.*— Hon. W. N. Tbeichleb, Judge. •

Saturday, May 23, 1903.

In the lower court plaintiff asked a writ of *certiorari*•to inquire into the legality of the action of the mayor and ■city council of the city of Cedar Rapids, acting as a board of review for the equalization of assessments for taxation in said city, in raising plaintiff’s assessment, without proper notice thereof. After a hearing on the merits, the lower court held the’action of defendants to be valid, and dismissed plaintiff’s petition. Plaintiff appeals.

*—Reversed.*

*Chas. A. Ciarle <& Son*and *William O. Ciarle*for appellant.

*John N. Hughes*for appellees.

McClain, J.

In the year 1900 the assessor of the city of Cedar Rapids, which is a city under special charter,. *602returned an assessment of plaintiff’s realty at $48,000 and. personalty at $24,740. In Code, section 1010, cities under" special charter are given power to provide by ordinance foir the equalization of assessments, and under this power the-city of Cedar Rapids had provided by ordinance that after" the return of the assessment and the making of the- levy based thereon the collector of taxes shall publish a notice of' assessment and levy in general terms, and shall give’notice that the city council will hear any complaints in regard to' the assessment at any meeting within thirty days from the-date of the first publication; and, further, “the city council, sitting as a board of equalization, shall at each meeting within the thirty days therein provided make- such further changes and corrections in the assessments as are’ necessary to.make them just and equitable;provided,,that’ before the assessed valuation of any property is increased," an alphabetical list of the names of the owners (when known) of property, the assessed valuation of which it is the purpose to increase, shall be posted at the door of the collector’s office, and said notice shall give the date of a regular or special meeting of the council for the final-action thereon, which meeting shall be held not less- than seven days from the date of posting notice of such meeting. At the first regular or special meeting of the city, council after the expiration of thirty days from the date-of the first publication of notice by the collector of the-assessmeiit and levy, the city council shall approve'the-assessment as changed and the levy as theretofore made..”'

It is evident that by' these provisions of the ordinance-a procedure similar to that provided for by statute in the-case of cities not acting under special charter is contemplated. See Code, sections 1370-1372. The general notice-of the assessment and levy is sufficient to give property owners an opportunity to appear before the board of' equalization and make complaint as to the correctness of the returns made by the assessor. But, if the board of *603equalization proposes to raise the assessment returned by the assessor, then the. property owners must have special notice of such purpose which is given to him by posting at the door of the collector’s office of an alphabetical list of the names of the owners of property, the assessed valuation of which the board proposes to increase. The record in this case shows that the general notice by the collector was given, but that no alphabetical list containing the name of plantiff, or advising it of any purpose to increase the assessed valuation of its property, was posted. Notwithstanding such failure to post notice, the board of equalization, on the 13th day of November, proceeded by resolution to raise the valuation of plaintiff’s real estate, including its street car line, track, and overhead line, to $65,000, and the valuation of its personal property to $30,000, and this increased valuation was made the basis not only for city taxation, but for taxation by the county and state. One of the contentions for appellant is that' this increase of assessed valuation, being made without the notice required by the ordinance, is void, and the conclusion which we reach on this question will dispose of the case.

Counsel for appellant contend that plaintiff had actual notice of the purpose to increase the assessed valuation of its property such as to render the posting of notice unnecessary, and in support of this contention they rely upon certain proceedings before a so-called “advisory committee” provided for by the ordinances of the city, which is to be appointed during the month of April of each year by the council, and to consist of three persons, not members of such council. This committee is required to meet after the publication of notice of assessment.and “examine the assessment of all real and personal property, and report to the Council such changes, additions, ^ad corrections as will, in their judgment, make the assessment fair, just and equitable to all property owners, and such report shall be'merely advisory to the city coun *604cil.” It is further provided that “any person shall have the right to be heard before the committee at any time during its session, and any property owner aggrieved by any recommendation of the committee or by the assessment of any property as made by the assessor, shall have the right to make complaint to the'city council in writing, and such right shall not be affected by the failure to appear before the advisory committee.” It appears that this advisory committee in July adopted a report in which it is recommended that the total assessment of plaintiff’s prop erty be increased from $72,740, as reported by the assessor, to $150,000, and by way of explanation of this increase the following statement is made in the report: “We find .the assessment of the street railway as given above, and there is a note in lead pencil on the assessor’s book ‘less railway,’ which we take to mean he has not assessed track, tools, or wires in the city, under, an apprehension that the same is assessed by the executive board of the state, which we are informed is wrong, and which leaves the assessment evidently so unfair that we recommend the above assessment.”

On September 14, 1900; the plaintiff, by its president, presented a communication to the city council, sitting as a board of equalization, in which it is set forth that the assessment entered against plaintiff on the assessment roll on “lots four (4) and five (5) in fractional block one (1), and lots three (3), four (4), and five (5) in block nineteen *(19) (less*railway),” at the actual value of forty-eight thousand dollars ($48,000), is erroneous, • and does not correspond with the assessment as actually made by the assessor, which specifically includes as a part of the real estate “nine .and thirty-one hundredths miles street car line track and overhead line, less railway,” and that the words “less railway,” inserted by the assessor in pencil, did not indicate an exception from the assessment of the s treet car line, "track,, and overhead line, but an exception *605of the value of the right of way of the Chicago & Northwestern Railway Company where it crosses the street car line. The statements as made in this communication are supported by a communication from the assessor to the city council containing the same explanation.

On this showing the plaintiff asked in this application that its assessment be corrected on the assessment roll so as to show that the assessment of real property, as returned by the assessor, included plaintiff’s street car line, track, and overhead line, and excluded the Chicago & Northwestern Railway Company’s right of way. The city council changed the assessment roll so as to show the inclusion of the street car line, track, and overhead line, but raised the assessment of plaintiff’s property,, as already stated. The claim of counsel that this action of plaintiff obviated the necessity for posting of notice of a purpose to increase its assessment is not well founded. The action of the committee was advisory only, and the council could determine as it saw fit whether to act thereon or not. Plaintiff’s communication indicated reasons to the council why the recommendation was erroneous, and the result of a misunderstanding of the assessment, and the plaintiff had a right to assume that if the council, in view of the recommendation of the committee and the explanatory communications of its president and the city assessor, proposed to raise the plaintiff’s assessment, the posted notice of such purpose would be given, as required by the ordinance. The action of the advisory committee in recommending the raising of the assessment was not equivalent to nor a substitute for a determination by the city council to increase such assessment, of which determination the plaintiff had a right to have notice. The council acted without authority in increasing the assessment without such notice, and the trial court should have held the increased assessment to be valid. — Reversed.