Power to Impose and Collect Taxes - Power to License.

lected on every license granted" such sum as the city council by resolution might from time to time declare. Ibid.

111. Auctioneers and retail merchants. An

incorporated city of the second class has no power under the general incorporation act, nor under chapter 97 of the Laws of 1862, to pass an ordinance requiring a resident merchant engaged in the ordinary business of selling goods at retail to pay a certain per cent on the amount arising from the sale of a portion of his merchandise which he employs an auctioneer to sell. Said chapter applies only to auctioneers and transient merchants. The City of Oskaloosa v. Tullis and Faxon, 25 Iowa, 440.

112.

quere. Whether even the auctioneer could be made liable to this burden under the authority contained in the act to regulate and license, quere. Ibid.

- Local Improvements.

V. LOCAL IMPROVEMENTS.

a. In general.

117. Improvement of streets. Where a city charter provided that the council should have power to cause to be opened, paved, and improved any street or alley on the petition of not less than two-thirds of the abutting owners, it was held, that a person who joined in such petition was thereby estopped from afterward claiming that the assessment of a tax for the improvement petitioned for was unauthorized and illegal on the ground that two-thirds of the abutting owners did not join in the petition While those who did not join in the petition might not be bound, those who did are. The City of Burlington v. Gilbert, 31 Iowa, 356.

118.

mistake in survey and grade lines: effect on petitioners. Where property owners petitioned for the grading of a street, stating in their petition the initial point, ascent, grade

113. Intoxicating liquors. A municipal corporation, invested with the necessary power by its charter, may regulate the sale of intoxicat-line, and point where it would strike the surface, ing liquors within its limits to the extent of prohibiting such sales by persons who are not licensed therefor, though the sale of such liquors be not prohibited by the laws of the State. The City of Burlington v. Kellar, 18 Iowa, 59.

and these were incorporated into the ordinances authorizing the improvement, it was held, that the surface point mentioned in the petition and ordinance being merely matter of description, was controlled by the other calls of the ordinance respecting the initial point, ascent, and grade

114. The ordinance of the City of Burling-line, and that a mistake on the part of the peti

ton, passed November 3d, 1862, prohibiting within said city the keeping of any house or place where persons resort for the purpose of drinking wine, beer, ale or other spirituous drinks" without a license from the authorities of said city, is invalid, and no prosecution can be sustained thereunder. Ibid.

115. The power conferred on the city council of Burlington to license the sale of spirituous liquors, by section 15, chapter 54 of Laws of 1845, was taken away by section 936 of the Code, and not restored by chapter 143 of the Laws of 1857-1858, or by any other legislation, in connection with the unrepealed authority in the charter to license houses of public enter

tainment. Ibid.

116. The act of 1844, granting to the town of Bellevue authority to grant licenses in that town, was not repealed or interfered with by the general license law of 1849, and the unlawful sale of liquors within its limitation could not be punished under the general law. The State v. Neeper, 3 G. Gr. 337.

tioners as to the point on the surface where the grade line would terminate, and the consequent cutting of the street to a greater depth than was desired or beneficial to them as property owners, would not affect the legality of the improvement, nor give such owners any right of action for damages against the city, though such mistake as to the point where the grade line would terminate on the surface was made by the peti tioners in consequence of an erroneous survey and plat on file in the office of the city engineer.

Ibid.

119. Change of grade. The putting of mac

adamizing material upon a street of a city, although it may elevate the surface, is not a change of the grade. Warren v. Henley et al., 31 Iowa, 31.

120. Paving and macadamizing: gutters. Authority in a city charter to "pave" the streets of the city confers power to macadamize them and to provide for their proper drainage by the construction of gutters. The word "pave" includes the usual means to cover the

Local Improvements - Extending and Vacating Limits.

streets with stone or brick so as to make a con- regularly numbered and platted. Buell v. Ball, venient surface for travel. Ibid.

121. The macadamization of city streets includes their "trimming" and "guttering;" and a city charter, which gave to the council power to levy and collect a special tax on lots, for the purpose of" macadamizing” the streets running in front thereof, was held, in connection with other provisions of the charter, to authorize a tax for "trimming and guttering" such streets. McNamara v. Estes et al., 22 Iowa, 246.

122.

construction of power. While the danger of giving elasticity to words conferring upon a municipal corporation power to levy special taxes, is admitted, they must neverthe

less receive such a reasonable construction as will truly reflect the legislative mind. Ibid.

123. The charter authorized a municipal corporation to require the owner of lots "to pave and repair one-half the width of the streets contiguous to the respective lots." Held, that the word "pave," as used in this connection, included all things necessary to make a level and convenient surface for horses, carriages and foot passengers. Buell v. Ball, Marshal & Co., 20 Iowa, 282.

Marshal & Co., 20 Iowa, 282.

127. Sidewalks. Authority given to a city to require abutting lot owners to pave the streets, includes authority to require them to build sidewalks. Warren v. Henley et al., 31 Iowa, 31; Burlington & Missouri R. R. Co. v. Spearman, 12 Ibid. 112.

b. Extending and vacating limits. 128. Extension of territory. Where the owner of land adjoining a city or town lays the same off into lots, and invites purchasers and settlers to occupy it with dwellings or otherwise, he cannot object to a law extending the authority of the local government over him and his land, so laid out and occupied. Morford v. Unger, 8 Iowa, 82.

129. When courts will interfere. The courts will not interfere with the exercise of the power to extend the corporate limits, but they will restrain municipal taxation when practicable, in cases in which it is shown that the proprietor of the property taxed cannot be benefited in a municipal point of view. (Morford v. Unger, 8 Iowa, 82.) Langworthy v. The City of Dubuque et al., 16 Iowa, 271.

130. Detachment of territory from city. Territory within the limits of a city should not be severed therefrom, in a proceeding under sections 1048 et seq. of the Revision (§ 440 et seq., Code of 1873), on the ground that it re

124. Cost of paving: city warrants. Where a city is required to pay more in city warrants on account of their depreciation than it would have to in cash, for the paving of streets of the city, the ultimate cost of which is chargeable against the abutting lots, such fact will not affect the right of the city to enforce the col-ceives no benefits from the municipal improvelection of an assessment against the lots for the full amount paid. Warren v. Henley et al., 31 Iowa, 31.

125. Paving at cost of abutting lots. It is competent for the legislature under our State constitution to authorize municipalities to require the streets to be paved, and the cost thereof assessed upon the abutting lots. (The People v. The Mayor, etc., 4 N. Y. 419; Livings ton v. New York, 8 Wend. 85; McMasters V. Commonwealth, 3 Watts, 292; Extension of Hancock street, 6 Harris, 26; Hill v. Higdon, 5 Ohio 243; Goddard petition, 16 Pick. 504; Garrett v. City of St Louis, 25 Mo. 505; Anderson v. Kern, 14 Ind. 199; Creighton v. Munson, 27 Cal 613.) Ibid.

126. The term "lot " applies to any portion, piece or division of land, and is not limited to parcels of land laid out into blocks and lots

ments, and is not needed for present municipal purposes, if it is manifest, from the facts in the case, that it will soon be required for such purposes in the extension and growth of the city in that direction. Mosier et al. v. The City of Des Moines, 31 Iowa, 174.

131. Vacation of town plats: taxes. Under section 6, chapter 78, Laws of 1862, the vacation of any part of a town or city plat, or addition thereto, does not impair the liability of such plat, or part thereof, for its portion of any existing debts which may have been incurred by the corporation. Deeds v. Sanborn, 26 Iowa,

419.

c. Opening of streets. 132. Report of commissioners. Section 9, chapter 77, Laws of 1852-3, does not confer upon the city council the power to set aside and disaffirm the report of the commissioners, appointed

Opening of Streets-Interest in and Control over streets, alleys, wharves, bridges, etc.

under section 6 of the same act, to assess and apportion the damages sustained by opening a street through private property. The State of Iowa ex rel. Hitt and Harbin v. The City of Keokuk, 9 Iowa, 438.

133. The findings of such commissioners, are in the nature of awards, or verdicts, and the authority of one of the parties in interest to set the same aside will not be sustained on doubtful implications. Ibid.

134. The power to confirm or reject, conferred by section 9 of said act, has reference to taxes other than those levied to pay for property taken for streets. Ibid.

135. A return by commissioners in their report of a portion of the property upon which damages are assessed, as of owners unknown, is not defective. Ibid.

136. Semble, that the council may refer a report back to the commissioners, with instructions to perfect or correct it; but they cannot remove the commissioners. Ibid.

137. - estoppel. After the respondents, by their return, admit the appointment of the commissioners, they are estopped from taking any exceptions to the failure of the relators to allege and show that they were qualified and duly appointed. Ibid.

138. Work may be abandoned. Where the. assessment of damages amounts to more than the value of the improvement, the city has power to abandon the work before the property of individuals is taken. Ibid.

139. Appropriation of property for streets: condition precedent. Under section 3, chapter 54, Laws of 1853 (an act to amend an act to incorporate the city of Dubuque), and chapter 17, Laws of 1855, a tender of a deed conveying the property appropriated for a street was not a condition precedent to the right of the owner to recover damages. Neither is it essential to show that the city council has, by resolution, declared the street to be opened. It is sufficient to show the confirmation by the council of the action of the jury selected to estimate the damages, in any manner, such confirmation being. of record. Blake v. The City of Dubuque, 13 Iowa, 66.

d. Interest in and control over streets, alleys, wharves, bridges and other public property. 140. Fee of streets not in the city. In towns and cities laid out and platted since the Code of Vol. 2.- 99

1851, and Revision of 1860, the fee of the streets is in the city. The lot owners do not hold the fee of the soil to the middle of the street on which their lots front, or any other interest in such streets, except the right of way over them, which is common to the whole public. Milburn et al. v. The City of Cedar Rapids et al., 12 Iowa, 246; Hughes v. The M. & M. R. R. Co., 12 Ibid. 261; The City of Des Moines v. Hall, 24 Ibid234; The City of Clinton v. The C. R. & M. R. R. Co., Ibid. 455; McDunn v. The City of Des Moines, 34 Ibid. 467; The City of Davenport v. Stevenson, Ibid. 225.

141. Dubuque and Keokuk are exceptions in this respect. Haight v. The City of Keokuk, 4 Iowa, 199; The City of Dubuque v. Malony, 9 Ibid. 450.

142. The general government, by laying off the land on which the city of Dubuque is situated, into lots, streets, out-lots, avenues and public squares (acts of congress, approved July 2, 1836, and March 12, 1837), and by the sale of lots to the occupants thereof, and others, dedicated such streets, avenues and public squares to the public use in such a manner as to be forever concluded from setting up any title to the same. The legal title to the soil, subject to the public easement, is vested in the owners of the lots on each side of said streets. Ibid.

143. Removal of obstructions. The legis lature by the "Act to incorporate the city of Lyons," approved January 24, 1855, granted to the corporation of the city of Lyons the control of the public streets, alleys and landings in that city, and a court of equity has no power to restrain the removal by the authorities of said corporation, of a building standing in a street and landing, even when it is shown that it was erected on such public grounds in good faith, that the corporation acquiesced in the owner's claim of title to the same, and that they were willing to remove it within a time to be fixed by the court. Sayers et al. v. The City of Lyons, 10 Iowa, 249.

144. Rights of under dedication. Where a dedication of streets by a town plat declared that "the streets and alleys were dedicated for street purposes and those only," the corporation gets only the right or easement of passage in the streets, with rights incidental to public ways; while all other rights remain in the dedicator. The City of Dubuque v. Benson, 23 Iowa, 248; and see Grant, receiver, v. The City

Interest in and Control over streets, alleys, wharves, bridges, and other public property.

of Davenport, 18 Iowa, 179; § 175, et seq., post, | streets, on the grade of the city or such grade and title DEDICATION, vol. 1, p. 9. as may be agreed upon." Held, that the com145. A proprietor of a tract of land adjoining | pany were limited to the grade established a city, platted an addition to said city upon said land, and in dedicating the streets and alleys to the public, conveyed them to the county for the use of the public. Held, that the city was not thereby deprived of the control of such streets and alleys. City of Des Moines v. Hall, 24 Iowa, 234.

by the city unless it were shown that some other grade had been agreed upon. Slatten v. The Des Moines Valley Railroad Company, 29 Iowa, 148.

153. A city may grant a right of way along one of its streets to a railroad company, without the consent of adjacent lot owners. Ingraham, Kennedy & Day v. The Chicago, D. & M. R. R.

146. The acceptance of an amended charter by the city, to include such addition, amounts | Co., 34 Iowa, 249; Milburn v. The City of Cedar to an acceptance of the addition and the streets and alleys. Ibid.

147. And the laying off of an addition to a city, under chapter 41, Code of 1851, vests the fee simple title of the streets and alleys in the corporation. And the original grantee or his grantees has no right to mine coal therein, and the corporation may maintain an action against him for coal taken by him therefrom. Ibid.

148. The recording of a town or city plat, executed in proper form, operates to vest in the public an interest in the land set apart as streets thereon, and to estop the proprietor, or his grantee, from afterward claiming the same. Mc Dunn v. The City of Des Moines et al., 34 Iowa, 467.

149. Public square. A public square of a city is held by the corporation in trust for the public, and cannot be sold on execution against the city for its general indebtedness. Ransom v. Boal, 29 Iowa, 68.

150. Where a portion of ground is dedicated by the original proprietors of a town or city, for the purpose of a public square" therein, the municipal authorities cannot sell the same or divert it to uses and purposes foreign to those for which the dedication was made. Warren v. The Mayor of Lyons City, 22 Iowa, 351.

151. Appropriation of streets: damages to lot owners. The owner of a lot in a city has no such interest in the adjacent street as will entitle him to recover damages to his lot consequent upon the use of a right of way over such street, granted by the city authorities to a railroad company. The City of Davenport v. Stevenson, 34 Iowa, 225; Slatten v. The Des Moines Valley R. R. Co., 29 Ibid. 148.

152. By a section of an ordinance of the city council of Des Moines, the right of way was granted to a railway company, with the right to construct its road over and across certain

Rapids, 12 Ibid. 246; Cook v. The City of Burlington, 30 Ibid. 94.

155.

It is accordingly held, that it was competent for the city of Dubuque to authorize a slough of the Mississippi river at that place, which had been formerly used for purposes connected with navigation, to be filled, and railroad tracks to be built over or along the same. Ibid., and see Cook v. The City of Burlington, 30 Iowa, 94.

156. Where the title to the streets of a city has been vested, in fee, in the corporation, the legislature may authorize their use by a railroad company, without the consent of the city, and without compensation. The streets of a city are not the private property of the corporation, so as to entitle it to compensation for an additional public use. City of Clinton v. The Cedar Rapids and Missouri River R. R. Co., 24 Iowa, 455.

upon

157. And it was therefore held, that the act of March 26, 1860, requiring the building of a railway by said company, from the city of Lyons to a point of intersection with the Chicago, Iowa and Nebraska railroad, within the corporate limits of the city of Clinton, conferred said company all requisite power to use so much of the streets of Clinton as was necessary in the construction of said road as designated, without the consent of the city and without awarding it compensation. And it appearing that the railroad company had, in the selection of its route