Omaha daily bee., 1884-06-17
COUNCIL BLUFFS.
ADDITIONAL LOCAL NEWS.
DETAILS OF THE DECISION.
The Supreme Court Says the City is
Liable for Filling the Strcots,

regard to street filling is one of the great
est moment to this city as under this de-
cision is involved a large amount of work
done during this fall and winter and as
sessed against abutting property. BY
this decision the city is liable for this
work, In March a uew law was was
passed, 80 that the work done since then
Is not affected directly by this decision.
The following is the decision of the SUI.
preme court in the case of Henry Bee.
croft, appellant VS.. the city of Council
Bluffs, on an appeal from the district
court:
The petition states that the defendant
passed an ordinance providing that all
call charges for the Improvement of
streets and alleys should be assessed
against the respective owners and lots
fronting on the or alley improved, and
collected as provided in sections AS and
479 of the code. and thereafter passed a
resolution providing for a change
of the former grade of about four
feet, by filling certain described streets
preparatory to paving. That the re-
spective owners of the lots failed to do
the required work, and the defendant
let the same to the plaintiff, who did
the grading to the satisfaction of the de.
PENDANT, and the same was accepted by it,
and the amount due under the contract
was ascertained by the city. That under
the contract the city agreed to issue GER
tiioaJes Of assessment against the owners
of abutting property for the amount due
the plaintiff, and did so. That
the plaintiff demanded payment
of said owners, but that they
wholly failed and refused to pay the same.
That the defendant had no power or
authority to assess the cost of grading
a~treets against the lots or owners thereof,
and therefore judgmentwas asked against
the city. To the petition there was a
demurrer on the grounds which are sufi-
GENTLY indicated in the opinion. The
demurrer was sustained and the plaintiff
appeals.
ScoTT & STEWART, for appellant, w. S.
MAyNE, for appellee. Sewers il.
The allegation that the city had no power
to make the assessment is a legal conclu-
sion which cannot be regarded as ad.
mitted unless the facts pleaded warrant
such conclusion, and this must be deter
mined by ascertaining whether the
requisite power has been conferred on
the city by statute, as it is not claimed
the charter does 80.
There is some ambiguity in the ordi-
nance, but for the purposes of this case
it will be conceded the ordinance pro-
vides that the charges were such as are
Contemplated by sections 466, 467 and
468 of the code, and chapter 81 of the
acts of the fifteenth general assembly, u
McClain's code page Ito. The ordi.
nance further provides that such charges
"shall be determined and assessed against
the respective owners of lots and lands
fronting on the street, highway or alley,
and collected as provided in sections 47s
and 479 of the CODE"
Chapter 81 of the acts of the Fifteenth
general assembly has reference alone tc
the improvement of alleys, are therefore
a consideration of its provisions is not re-
quired, and this is true as to sections 47e
and 479 of the code, because the assess
ment shall be made under the other sec
lions referred to therein, and the
same collected as provided
in the sections last named
| Goo4,on dfH rafaro o1opo IN fba rooo,. ~
permanent sidewalks, and 465 provides
that the expense of grading streets shall
be paid out of the general fund of thu
city. Therefore the requisite power mus
be conferred by section 466 of the code
1t provides that cities ''shall have the
power to construct sidewalks, to cnrb
pave, gravel macadamize and gutter
any highway or alley and to levy a spec
ial tax on the lots and parcels of lane
fronting on such highway or alley, to
pay the expense of such improvement
1t will be observed that this section does
not include or provide for grading
streets or alleys and therefor does no
conflict with section 400. But, stetior
466 does provide for paving and the res
~olution contemplates that the street,
were to be graded, preparatory tt
paving" Now the Question is whether
work preparatory thereto is the paving
contemplated by the statute. We thinl
not. 1t will be assumed the council il
good faith passed the resolution and a
that time intended to pave the streets
but when or how was lef
to the uncertain future. Beeaus
the preparatory work was done the coun
Gil wasnot conclusively bound to pave. an,
circumstances thereafter occurring nigh
cause.-the same council to make a chang
in this respect. Besides the changes i
the personel of city councils frequentl
occur, and thus changes in the policy !
be pursued are brought about. TIL
power conferred Is to pave and not mere
ly to make preparation therefor. TIL
work o. preparation must, of course, b
done first, and in the discretion of tn,
council, the street may be graded and tn
! latter, no doubt, done under one contrac
and the paving under another. But tn
only power conferred is to assess abuttin
ownersfor payingand this may include tn
PREPARATORY grading. The whole must b
assessed togethet or if this be not trne M
power is conferred to assess the cost o
the grading on the abutting owners an
then al some future and uncertain tim
make another assessment for paving
Powers of this character which some
times are onerous burdens on the citize
and are assessed against his consent an
bossibly against his interest are usual
strictly construed. Council for the az
pellee cite and rely on Buell. VS.. Ball. 2
Iowa, $50; Robinson va. City of Bui
llinntnn. hQih 2lQ and Knnna va. Luca!