Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1908-08-01
ices rendered in an attempted compli-

ices rendered in an attempted compli-
ancc with such contract.
If a county contracts debt for a
court house or city becomes in
debted for city hall OF for borrowed
money. the creditor may place his
claim in judgment. and by proper pro-
cedure compel the levy OF tax for
the discharge of his claim, and this
tax will be lien upon all the real
property within the jurisdiction. but
the doctrine of agency cannot be SO
far extended as to permit the creditor
to have an action against the lndlvld-
ual taxpayer for his supposed frac-
tional share of the debt thus con-
tracted Nor are we cited to any stat
ute which attempts to provide such
remedy. 1t is true, of course. that we
have statute by which a city may
order the paving of It's streets ana
provide for the assessment of the ex-
pense SO incurred upon the property
abutting on the Improvement. but the
contractor to whom the work is let
is given no recourse upon the lndlvld-
ual citizen or upon his property until
the work has been done, the statutory
conditions precedent compiled WIN,
and special assessment made and
proper certificates issued therefor. The
authority to make such assessment ana
to enforce its payment is referable
solely to the power OF taxation, ana
the liability to pay such tax or assess
ment does not arise in favor OF the
city and still less in favor OF the con-
tractor until the same has been levied
in substantial compliance with the
statute.
In other words. the contractors
right. if he has any, to have the prl-
vate property of the individual citizen
subjected to the payment of his claim.
must be worked out thru uhe action OF
the city and its power of taxation.
The soundness of this proposition IS
not in our Judgment open to ques-
ton. To hold with the appellants IN
this case would require us to ignore
the fundamental rule just suggested,
and to announce the strange doctrlhe
that, when contractor has SO Tar
failed to perform his contract that
the court permanently enJoins the spe-
cial assessment of the cost SO IN
Cured upon the adjacent property, ne
may then proceed by action againsl
the individual owners OF the same
property and be decreed the equivalent
of such special assessment to whfcn
II has been adjudicated he Is not en-
titled.
But counsel say the statute makes
the contractors claim lien upon lhe
propertv to be benefited thereby even
before the assessment or levy Is maze.
This claim is based on Code NO. olo'
which provides that when the contfaNt
has been let, and the clerk OF the CITY
has fled a proper certification OF the
proceedings with the county auditor,
all spe cial taxes for the cost OF the
Improvement which are to be assessed
and levied against real property shaii
become and remain a lien on such
property from the date of the fling OIL
said papers. The effect Of this stature
is simply to make the special tax Wnen
duly assessed according to law lien
from the Cate of filing the certlneate.
1t fixes a cate back to which the lien
of the tax will relate when 1t shaA De
property assessed and levied. 1t foi-
lows of necessity that, If for any sur
ficient reason it shall be duly adjuon-
Gated that q special tax cannot De
levied or enforced Tor the cost OF a
given improvement, and che assess
ment thereof Is forever en1oined, tneH
no lien exists or can exist In favor OF
any one. Stated otherwise, the Hen
provided for is the lien of a tax, and
If there be no tax levied or leviable
there is and can be no lien.
Nor can we say that the situation as
to property owners is any manner
changed or modified by the act Of APP
peliants in offering to reconstruct or
repair the pavement to comply with
the contract. The property owners
have no control over the streets or over
the action or discretion of the city
council. They cannot accept or reject
the contractors offer to remedy the
defects in the pavement Their proper
ty can be made liable for this cost only
thru the process of taxation. The pow
er of taxation is in the city alone
(su,biect of course to judicial revteW),
and the city has been permanently en-
joined from exercising that power. IN
deed, we have expressly held that the
city itself has no power to reassess
and charge adjacent property for the
reasonable value Of an irnprovem ent
for which 1t has been adjudged the
contractor is not entitled to compensa-
ton under his contract. The Quantun
lneruit rule has no application against
the property owner with whom the
contractor has no contract relation. ex-
press or implied. Crawford v. Mason
1913 Iowa, 80 N. w. 795. These propot
sitions appear too clear to us to re-
ouire further discussion.
The ruling of the district court is
right; and it is affirmed,