Dewey v. Des Moines

by Rufus Wheeler Peckham

United States Supreme Court

173 U.S. 193

Dewey  v.  Des Moines

The petition in this case was filed by the plaintiff in error to set aside certain assessments upon his lots in Des Moines, in the state of Iowa, which had been imposed thereon for the purpose of paying for the paving of the street upon which the lots abutted, and to obtain a judgment enjoining proceedings towards their sale, and adjudging that there was no personal liability to pay the excess of the assessment above the amount realized upon the sale of the lots.

The petition alleged that the petitioner was at all times during the proceedings mentioned a resident of Chicago, in the state of Illinois, and that he had no actual notice of any of the proceedings looking towards the paving of the street upon which his lots abutted; that the street was paved under the direction of the common council, which decided upon its necessity, and the expense was, by the provisions of the Iowa statute, assessed upon the abutting property, and the lot owner made personally liable for its payment; that the expense of the improvement was greater than the value of the lots assessed, and the common council knew it would be greater when the paving was ordered.

Various other facts were set up touching the invalidity of the assessment upon the lots, but no allegation was made attacking its validity by reason of any violation of the federal constitution. Under stipulation of the parties, various allegations of fraud upon the part of the members of the common council, which had been included in the petition, were withdrawn, and the allegations of the petition as thus amended were not denied.

The contractor who did the work of paving the street was made a party to this proceeding, and he set up a counterclaim asking that the certificates given him by the city in payment for his services, and which by statute were made a lien upon the lots abutting upon the street, might be foreclosed, and the lots sold, and a personal judgment pursuant to the same statute rendered against the plaintiff in error.

By stipulation, certain motions, which were made to strike out allegations in the petition, were treated as demurrers to the petition, and the case was thus placed at issue.

Upon the trial the district court of Polk county gave judgment dismissing the petition, with costs, and in favor of the contractor on his counterclaim, foreclosing the lien of the latter, and ordering the sale of the lots, and the judgment also provided for the issue of a personal or general execution against the plaintiff in error to collect any balance remaining unpaid after sale of the lots.

Plaintiff took the case to the state supreme court, and there made an assignment of errors, one of which is as follows:

'The court erred in holding and deciding that plaintiff was personally liable to said Des Moines Brick-Manufacturing Company for so much of said special tax or assessment as could not or would not be realized by a sale of the sixty lots in question on special execution, and in ordering and adjudging that a general execution should issue against plaintiff, and in favor of said Des Moines Brick-Manufacturing Company, for the balance of such tax or assessment; and, further, that, as plaintiff was at all times a nonresident of the state of Iowa, and had no personal notice or knowledge of the assessment proceedings, that the imposition of a personal liability against him, in excess of the value of all the lots, was not due process of law, and was in contravention of the provisions on that subject of the fourteenth amendment to the constitution of the United States, as well as in contravention of the provisions of the constitution of the state of Iowa on the same subject.'

The supreme court affirmed the judgment of the district court (70 N. W. 605), and plaintiff brought the case here by writ of error.

A. E. Harvey, for plaintiff in error.

N. T. Guernsey, for defendants in error.

Mr. Justice PECKHAM, after stating the facts, delivered the opinion of the court.

Notes