without protest, and with the acquiescence of all the owners of the adjacent property, and of the proprietors of the preinises in question, ornamented and beautified it as a park or open space, and made it, at large expense, just what it is; and that there never was any claim set up to it as private grounds, subject to private possession by the plaintiff or any one else, until the entire expense of its improvement as a park (amounting to the sum of $5,700) had been incurred, and not then by any person ignorant of the situation or of the claim and occupation by the public of the premises as public grounds."

The finding of the trial judge that the land in question was dedicated by the owners, in 1858, to a public use is supported by competent evidence. By the same evidence it appears, also, that the dedication was accepted. Any formal act of the common council, implying acceptance, is evidence of it. Ang. Highw. (3d Ed.) §157. Here the formal acceptance was in the resolution stating the terms on which the deed would be accepted, and the proposed change in the streets provided for. It was further shown in the vacating of a part of Bronson street, and the opening and grading of the south arm of the crescent which took place shortly after. After the land After the land was thus formally dedicated and accepted, it was beyond a recall by Mrs. Johnson or any subsequent owner. Nor was the conveyance of this with other lands by Mrs. Johnson to Camp, in 1864, any evidence of a purpose or desire on her part to recall the dedication. The legal title was still in her, notwithstanding the dedication. The public use was an easement, which might belost by non-use for the purpose for which the dedication was made. In such case, the plaintiff, as the owner of the legal title, would become entitled to the possession, unincumbered, of the public easement. Wayne Co. v. Miller, 31 Mich. 447; White v. Smith, 37 Mich. 291; Supervisors v. Banks, 44 Mich. 467, 7 N. W. Rep. 49; Cincinnati V. White, 6 Pet. 431.

It is strongly urged upon us that, even if the city once had rights in this land by virtue of the dedication in 1858, its conduct in causing the property to be assessed for taxes to Mr. Camp several years, and one year as "unknown, "and in allowing it to be sold and bid in to the city, was inconsistent with its present claim of title, and that the city is estopped to assert such inconsistent claims. The doctrine of estoppel in pais is one difficult of application to municipal corporations. It must rest upon the fact that the party estopped has knowingly done, or omitted to do, some act which another party in interest had a right to rely upon, as indicating a particular purpose or intention, and, having such right, did rely upon it to his prejudice. The difficulty of applying this doctrine to municipal corporations grows out of the fact that, as a rule, they can only speak or act by their governing bodies or specially authorized officers, whose powers and duties are expressly defined and limited by law. If they act within the limits of their powers, their action is legal and binding upon the corporation, and the doctrine of estoppel need not be invoked.

If they act beyond the limits of their authority, no one has a right to rely upon such action as binding upon the corporation, or to be misled thereby, because all are bound to take notice of the public law which defines their powers. Applying these principles to the question here to be decided, we find that the acts which are claimed to operate as an estoppel against the city were those of the taxing officers, who were required to perform certain statutory duties relating to the assessment and collection of taxes. While acting within their jurisdiction, their action was binding upon every one. If they acted without jurisdiction, their action bound

no one.

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During the years 1871, 1875, 1876, 1880; and 1882, when this property was assessed for taxes, if it was city property, it was exempt from taxation under the following provision of the statute: "All public or corporate property of the several counties, cities, villages, townships, and schooldistricts in this state, used or intended for corporate purposes. How. St. §1005, par. 7. All assessments and sales of the property for taxes, if the title was in the city, were absolutely void. There was no officer or body in the city that could lawfully subject such property to taxation, and of this all persons were bound to take notice. No one had a right to suppose that the city was intending to waive its rights, because its officers, acting without authority, were assessing this land for taxation. No one had a right to be misled by such acts, and there can be no estoppel, unless a party is misled to his injury. Palmer v. Williams, 24 Mich. 328; Crane v. Reeder, 25 Mich. 304; De Mill v. Moffat, 49 Mich. 125, 13 N. W. Rep. 387. In so far as the cases cited by plaintiff's counsel in 36th, 39th, 44th, and 49th Iowa Reports conflict with the views here expressed, we do not follow them.1 Baker v. Johnston, 21 Mich. 351; Ellsworth v. Grand Rapids, 27 Mich. 257; People v. Railroad Co., 41 Mich. 413, 2 N. W. Rep. 188; Railway Co. v. People, 46 Mich. 193, 9 N. W. Rep. 249; Boardman Tp. v. Flagg, 70 Mich. 372, 38 N. W. Rep. 284; Association v. Topeka, 20 Wall. 655.

Mr. Camp, the then owner, not only had no right to be misled, but it affirmatively ap appears that he was not; that he called the attention of the city to the fact that this property which belonged to the city had been erroneously assessed to him, and asked to be relieved from personal liabili ty to pay the tax. He was relieved, whether by express action of the city does not appear, but the collector who had been calling on Camp to pay the tax desisted, the property was returned and sold, and bid in by the city, which amounted to a payment of the tax. The city is not estopped to claim this property under the original dedication of 1858.

I have examined the errors assigned upon the admission and rejection of testimony, and I discover nothing which could have affected the result of the case. They

1 The cases referred to are Land Co. v. Story Co., 36 Iowa, 48; Adams Co. v. Railroad Co., 39 Iowa, 507; Austin v. Bremer Co., 44 Iowa, 155; Simplot v. Dubuque, 49 Iowa, 630.

STEELE V. MURRY et al. (Supreme Court of Iowa. May 28, 1890.) TAXATION-SALE FOR NON-PATMENT-REDEMPTION. The notice of expiration of the time limited for redemption of land sold for taxes, required to be given to the person in possession, and to the person in whose name the same is taxed, by Code lowa, 5 894, which provides that the notice must be signed by the holder of the tax certificate or his agent, and must be served in the manner provided by law for the service of original notices, and that service may be by publication on non-residents, must be adaressed to the person to be served there

with.

Appeal from district court, Cass county; N. W. MACY, Judge.

Action in chancery to enjoin the treasurer of the county from issuing a tax-deed, and the purchaser from receiving it, on account of irregularities in the tax proceeding and insufficiency of the notice of the expiration of the time for redemption. There was a decree granting the relief prayed for by plaintiff. Defendant appeals.

L. L. Delano, J. W. Scott, and D. F. Harding, for appellants. Phelps & Temple, for appellee.

BECK, J. 1. The main objections made by plaintiff to the tax-title involved in this action are (1) that the taxes for the years wherein preceding taxes became delinquent were not entered upon the tax-book, as required by Code, § 845; (2) that the notice of the expiration of the time for redemption required by Id. § 894, was not given. We will waive the consideration of the first objection, as the second, in our opinion, is decisive of the case, and it is probable we would not unite in the same

views upon the facts of the case involved in this question. The second objection, therefore, alone demands consideration. Section 894 contains this provision: "After the expiration of two years and nine months after the date of sale of the land for taxes, the lawful holder of the certificate of purchase may cause to be served upon the person in possession of such land or town lot, and also upon the person in whose name the same is taxed, if such person resides in the county where such land is situated, in the manner provided by law for the service of original notices, a notice signed by him, his agent or attor ney, stating the date of sale, and the description of the land or town lot sold, the name of the purchaser, that the right of redemption will expire, and a deed for said land be made, unless redemption for such sale be made within ninety days from the completed service thereof. Service may be made upon non-residents of the county by publishing the same three times in some newspaper printed in said county, and, if no newspaper is printed in said county, then in the nearest newspaper published in this state.

The notice contemplated in this section is to be served upon the person in possession of the land. What is the notice which is to be served upon him? The word "notice," used in the language of the statute above quoted, means a written paper containing the statements or recitations necessary to inform the person notified of the facts required to be communicated or declared to him. The word is often used in the law, and designates a paper of this description. It is intended to inform the person notified of the things required, and is therefore a notice to him. When a written notice is required to be served upon a person, the law contemplates that it shall be addressed to him This we think is the uniform practice, and is demanded by the necessity of such address in order to guide the person making the service, and to identify the person served.

There are other reasons that sustain our conclusions. The statute quoted provides that the notice shall be served "in the manner provided by law for the service of original notices." Original notices may be served by leaving them at the residence of the defendant, when he is not found in the county. Code, § 2603. There seems, in such a case as this, no absolute necessity that the notice should be addressed to the person intended to be served. If it should not be so addressed, how would the person served and the person with whom the copy is left know for whom the notice was intended? The statute above quoted provides that service by publication may be made upon non-residents of the county, and in other cases contemplates that the same kind of service of the notice may be made in cases wherein such service of an original notice is allowed. Undoubtedly a non-resident holding possession of land sold for taxes should be served with notice of the expiration of the time for redemption, and a resident holding possession may keep himself concealed to avoid service of notice. In these cases, under Code, § 2618, pars. 1, 7, and section 894, service

may be made by publication. How would it be possible to give notice in such cases by publication, unless the name of the party to be notified appear in the notice, or it be addressed to him? In our opinion, the proposition that the notice of the expiration of the time for redemption should be addressed to the person to be served therewith, or their names, in some proper manner, should appear therein, requires no further support than these considerations. It is our conclusion that the notice was not sufficient, and the right of redemption was not, therefore, cut off. Affirmed. (80 Iowa, 378)

HODGE V. DENT et al.

(Supreme Court of Iowa. May 31, 1890.)

REDEMPTION BY JUDGMENT CREDITOR. Where a judgment creditor's right to redeem land sold under a decree of foreclosure against his debtor, to which such creditor was not made a party, is sought to be defeated in an action to redeem by setting up a sale of land to defendant before the judgment was rendered, the burden is on defendant to show such prior sale.

Appeal from district court, Plymouth county; C. H. LEWIS, Judge.

This is an action in equity, by which the plaintiff, as assignee of a corporation known as the St. Paul Harvester Works, seeks to redeem certain land from a sher. iff's sale. An answer was filed, and an issue made up, and the cause was tried upon its merits, and a decree was entered for the plaintiff. Defendants appeal.

Argo & McDuffie and Barrett & Calvert, for appellants. W. S. Palmer, for appellee.

ROTHROCK, C. J. On the 1st day of January, 1876, Abram Delong was the owner of a quarter section of land in Sioux county. On that day be executed a mortgage on said land to A. B. Nash and S. W. Duncan. On the 5th day of January, 1877, the St. Paul Harvester Works obtained a judgment by confession against Delong in the circuit court of Sioux county. This judgment was assigned by the harvester works company to the plaintiff. On the 10th day of January, 1877, A. B. Nash, the owner of the mortgage above mentioned, commenced an action in the circuit court of Sioux county to foreclose the same; and on the 29th day of that month a judgment was rendered against Delong for the amount due, and a decree of foreclosure was entered. Special execution was issued, and the land was sold at sheriff's sale to Nash, the mortgagee. The sale was made on the 24th day of March, 1877, with the right of redemption. On the 19th day of March, 1878, Nash assigned the sheriff's certificate of sale to the defendant W. H. Dent, and on the 25th day of that month the sheriff executed a deed to Dent in pursuance of the sale. Afterwards, Dent conveyed the land by deed of general warranty to the defendant Hildebrand, and he afterwards conveyed to defendant Dixon. The evidence shows that there was a prior mortgage upon the land to one Calkins, which the defendant Dent afterwards paid.

It will be observed by an examination of the dates of the above transactions that the judgment of the harvester works

| against Delong was rendered before the suit for foreclosure was commenced, and that, upon the face of the record, it was a lien on the land prior to the mortgage. The harvester works was not made a party to the foreclosure suit; and, so far as appears from the record, its assignee has the right to redeem. right to redeem. There is no dispute in regard to this proposition. But the defendant Dent claims that he purchased the land from Delong before the judgment was rendered, and that, therefore, the judgment did not attach to the land as a lien. This is the only material question in dispute between the parties. It is stated by counsel for appellants as follows: "Was the land in controversy sold by Delong to Dent prior to January 5, 1877, or was it sold after that date?" The record evidence established the fact that the judgment was a lien on the land, and that it so continued to the commencement of the suit. The burden was therefore on the defendants to prove by competent evidence that a sale of the land was made by Delong to Dent before the judgment was rendered. It was sought to establish this fact by parol evidence. The district court failed to find the proof necessary to defeat the right to redeem. A careful consideration of the evidence has led us to the same conclusion. We need not set out the testimony of the witnesses. It is enough to say that we are well satisfied that the decreo of the district court is in accord with the decided weight of the evidence. Affirmed.

(80 Iowa, 626) FORD V. INCORPORATED TOWN OF NORTH DES MOINES et al. WESTON et al. v. SAME. FRANZ et al. v. SAME. SMITH et al. v. FORD. SAME V. WESTON. SAME V. MARKSAME V. KENNEDY. SAME V. YEOSAME V. MOGELBERG et al. (Supreme Court of Iowa. May 29, 1890.) MUNICIPAL CORPORATIONS-ANNEXATION-PUBLIC IMPROVEMENTS-ASSESSMENTS-CONSTITUTIONAL

НАМ. MAN.

LAW.

1. Code Iowa, SS 421-429, provide that, where the inhabitants of any part of any county not embraced in any incorporated city or town shall desire to be organized into a city or town, they may apply to the district court by petition signed by not less than 25 of the qualified electors of such territory, and the court shall appoint commissioners to call an election in the territory; and, if the election be in favor of the incorporation, the clerk shall give notice of the result, and copies of all the papers and record entries shall be filed in the recorder's office of the county and in the office of the secretary of state; and when such papers are filed, and officers elected, the incorporation shall be complete. The sections further provide for the annexation of territory to an incorporated city or town on the filing of a like petition and having like proceedings. Held, that the act is not unconstitutional as authorizing the creation of a municipal corporation by judicial act instead of by the legislature, since the only power thereby conferred on the court is the appointment of commissioners of the election.

2. Nor are such sections unconstitutional because no provision is made for notice of the proceedings in the district court to persons owning property within the territory proposed to be incorporated or annexed, since such notice is necessary only in cases where the court acts judicially.

3. An objection to the validity of an annexation made under this act, because it does not appear that a majority of the inhabitants of the

4. Nor are the proceedings invalid because the record does not contain the notices of election, where the commissioners' report states that the election was held "after due and legal notice." The act does not require the notices to be filed.

5. The copies of the annexation proceedings filed in the recorder's office of the county and in the office of the secretary of state were not certified as required by the act, but the town assumed jurisdiction of the annexed territory without objection, and, after a suit involving the validity of the annexation was commenced, proper certificates of the correctness of the coples were filed. Held, that the failure to file certified copies of the proroodings was merely a technical error, and was cured by the subsequent filing of the certificates.

6. The inhabitants of territory so annexed cannot complain of the levy of municipal taxes and assessments on their property on the ground that it is situated in a river bottom, which is sometimes subject to overflow.

7. The common council of a city which was out of money and in debt was induced to let a contract for paving a street by the fact that some persons who were interested in having the work done entered into a bond to grade the street without experse to the city. The contract was let by resoluson, which was discussed in an open meeting of the council. Held, that there was no ground for a charge that the council was bribed to let the con

tract.

8. A town may by ordinance provide for notice to be given to abutting property owners of assessments against their property for street improvements, though the statute authorizing the town to make such assessments does not provide for such

notice.

9. It is not necessary that such notice shall state the amount of the assessment where the property owner himself can ascertain it by mere mathematical calculation.

10. A wagon bridge was built across a river at the foot of a public street, and the owner of farm land on the other side granted to owners of the bridge a right of way through the land. After wards the owners of the bridge conveyed the bridge to the county. Held, that the right of way there upon became a public highway.

Appeal from district court, Polk county; JOSIAH GIVEN, Judge.

On the 23d day of May, 1887, the incorporated town of North Des Moines by its council adopted a resolution by which it was determined that what was known as "Sixth Street" in said town, from the north end of Sixth-Street bridge, should be graded, curbed, and paved. In pursuance of this resolution, the paving of said street was awarded to J. B. Smith & Co., as contractors. The street was paved with cedar blocks, and it is claimed by said incorporated town and by said J. B. Smith & Co. that the abutting property, and the owners thereof, should be charged with the payment of said improvement. This is the ultimate question to be determined in all of the above cases. The appellants in all of the cases are owners of abutting property. In the first three cases the owners therein named seek to restrain and enjoin the assessments made upon their lands. In the other cases the said J. B. Smith & Co. seek to foreclose certain certificates issued to them by the town for the paving, and the defendants thereto are the owners of the abutting property. The district court held that the assessments

Cole, McVey & Clark and James M. & Geo. E. McCaughan, for appellants. Gatch, Connor & Weaver and Philips & Day, for the town of North Des Moines. Cummins & Wright, for J. B. Smith & Co.

Des Moines was organized as a municipal ROTHROCK, C. J. 1. The town of North incorporation in the year 1880. In the year 1886 certain proceedings were had for the purpose of extending the limits of the incorporation. The paving which is in controversy was laid upon that part of the territory which was annexed to the town by the extended limits. A great many questions are presented in appellants' arguments which involve the validity of the proceedings for extending the limits, as well as the action of the town council in the matter of ordering the street to be paved, and assessing the cost thereof against the owners of the abutting lands and lots. The annexation of the additional territory was made under chapter 10 of the Code, from section 421 to section 429, inclusive. It is unnecessary to set out these sections of the law in full. It is sufficient to say that it is therein provided. in substance, that, whenever the inhabitants of any part of any county not embraced in any incorporated city or town shall desire to be organized into a city or town, they may apply to the district court by petition in writing, signed by not less than 25 of the qualified electors of the territory to be embraced in the proposed incorporation, and that when such petition is presented the court shall forthwith appoint five commissioners, who shall call an election of the voters residing within the said territory, of which election notice shall be given by publication in a newspaper published within said territory, if any there be, and by posting notices of the election; and, if a majority of the ballots cast at said election be in favor of such incorporation, the clerk of said court shall give notice of the result, and a certified copy of all of the papers and record entries shall be filed in the recorder's office of the county and in the office of the secretary of state, and when such copies are filed, and officers are elected and qualified for such city or town, the incorporation shall be complete. These are the proceedings necessary to be taken to form an original incorporation. It is further provided that, when the inhabitants of part of any county adjoining any city or town shall desire to be annexed to such city or town, they may apply by petition in writing to the district court of the proper county, signed by not less than a majority of the electors residing within the territory proposed to be annexed; and that like proceedings shall be had on such petition as are prescribed for the organization of an incorporated town or city, so far as applicable.

It is claimed in behalf of appellants that the sections of the Code above referred to are unconstitutional and void. If this view be correct, then both the original incorporation of the town of North Des

Moines and the annexation proceedings are invalid and void. The ground of the argument is that the creation of a municipal corporation is an exercise of legislative power, and that such power cannot be delegated to the courts. Upon the general proposition that exclusive legislative power cannot be delegated to courts or to any other authority, there can be no dispute. It is for the general assembly alone to exercise purely legislative power. Santo v. State, 2 Iowa, 165; State v. Beneke, 9 Iowa, 203; Weir v. Cram, 37 Iowa, 649; People v. Carpenter, 24 N. Y. 86; People v. Nevada, 6 Cal. 143; Galesburg v. Hawkinson, 75 Ill. 156; Sanborn v. Commissioners, 9 Minn. 273, (Gil. 258.) But section 30 of article 3 of the constitution of the state provides that “the general assembly shall not pass local or special laws in the following cases: *For incorporation of cities and towns." And section 1 of article 8 provides that "no corporation shall be created by special laws, but the general assembly shall provide by general laws for the organization of all corporations hereafter to be created, except as hereinafter provided." In obedience to these provisions of the constitution, no municipal corporation has been organized under a special charter by any act of the legislature since the adoption of the constitution, and many of those which were organized before that have since abandoned their special charters, and incorporated under the general law; so that there are now but three or four cities in the state acting under special charters.

*

*

By an act of the seventh general assembly, passed in 1858, municipal corporations were required to be organized by proceedings in the county court in some respects similar to the proceedings now required to be had in the district court. That act and laws of a similar nature have been in force more than 30 years, and in numerous cases in this court their validity has been recognized; and we may say further, that, of the authorities cited by counsel on the question now under consideration, we think that the case of Shumway v. Bennett, 29 Mich. 451, is the only one which supports the claim made by counsel; and it is provided by section 1 of article 15 of the constitution of Michigan that "corporations may be formed under general laws, but shall not be created by special act except for municipal purmunicipal purposes.

99

If the legislature of this state may not by, general laws prescribe rules and regulations for the organization of municipal corporations, and provide means for carrying the laws into effect by conferring upon some court or commission or board, or some other agency, the authority to ascertain and determine when the general provisions of the law are complied with, so as to effect the organization of the corporation, then no municipal corporation can be created. And it may well be questioned whether, under the present law, any legislative or even judicial power is conferred upon the district court. When a petition has been presented, signed by not less than a majority of the electors residing within the territory proposed to

be annexed, the court has no discretion. judicial or otherwise. The statute requires that in such case "the court shall forthwith appoint five commissioners, who shall call an election, and, when the election has been held, the result determines the question. This is not a question for the court. The court has the authority to appoint the commissioners of election, and nothing more. The question of incorporation or annexation, as the case may be, is determined by the electors. In our opinion, the objection that the statute under consideration is unconstitutional cannot be sustained. The following authorities appear to us to sustain the views above expressed. 1 Dill. Mun. Corp. § 41; Kayser v. Trustees, 16 Mo. 88; Com. v. Judges, 8 Pa. St. 391; People v. Fleming, 16 Pac. Rep. 298; City of Burlington v. Leebrick, 43 Iowa, 252; City of Wahoo v. Dickinson, (Neb.) 36 N. W. Rep. 813.

2. It is next claimed that the sections of the Code above cited are unconstitutional, because no provision is made therein for notice of the proceedings in the district court to the persons owning property in the territory proposed to be organized into a corporation, or in the territory sought to be annexed to an existing municipal corporation. It is said by counsel in argument that the creation of a municipality, or an extension of the boundaries of one already created, constitutes one step towards subjecting the persons and property within the corporate limits, original or extended, to additional burdens, charges, liabilities, and duties, as well as the right to special privileges and immunities, and that "it inheres in, and is essentially a part of, every judicial proceeding, that it is to be had upon notice of some kind to the parties to be affected by it." The proposition last above stated is undoubtedly correct as an abstract principle of law, but we think it has no application to the proceeding under consideration. As we have said, the court has no discretion. It has no power to determine the question of the propriety of organizing the municipality, or annexing territory to one already organized. The question of organization or annexation is determined by the electors of the territory, at an election called by the commissioners appointed by the court. In Dishon v. Smith, 10 Iowa, 212, which was a proceeding to determine the legality of the steps taken for the removal of a county-seat, it was held that the failure to give notice of the presentation of a petition for an election was not jurisdictional. The court said: "It is an error to regard this as a jurisdictional matter. This idea pertains to cases where the court acts judicially, and in matters between party and party, and not to one * which is a vote

* *

of the people." of the people." If the failure to give a notice, which is required by statute, is not jurisdictional, surely a statute which does not provide for notice ought not to be held to be unconstitutional.

3. It is further urged that there are certain defects in the proceedings for annexation which are fatal to the validity thereof. One of these alleged defects is that it does not appear that a majority of the