
    F. E. Snyder, Appellant, v. City of Belle Plaine, Appellee (and two other cases).
    MUNICIPAL COEPOEATIONS: Public Improvements — Assess-1 ments — Distribution of Excess Costs. An assessment of benefits for a public street improvement is not necessarily limited to the cost of the improvement in front of the lot assessed. It follows that, if the cost of an improvement in front of a specified lot or lots is in excess of the special benefits, or is in excess of 25 per cent of the value of the lot, such excess neéd not be paid out of the general fund of the city if such excess can, by an equitably apportioned assessment, be so distributed among other lots within the improvement that no lot will bear an assessment in excess of the special benefits received, or in excess of 25 per cent of the value thereof, even though, by such assessment, some lots may be compelled to bear a burden exceeding the cost of the improvement fronting thereon. Sections 792-a, 792-b, Code Supplement, 1913,
    MUNICIPAL COEPOEATIONS: Public Improvements — Assess-2 ments — Front-Foot Eule Levy. The presumption that an assessment of benefits for a public street improvement is according to benefits received is not overcome by evidence that consideration of the so-called front-foot rule was not wholly disregarded.
    MUNICIPAL COEPOEATIONS: Public Improvements — Assess-3 ments — “Frontage” as an Element. “Frontage” may very properly be taken into consideration as one of the elements bearing on benefits.
    MUNICIPAL COEPOEATIONS: Public Improvements — Assess-4 ments — Identical Amounts on Small and Large Tracts — Effect. It may not be presumed, from the mere fact that two separate tracts of materially different areas are assessed in tbe same amount, that such assessment is inequitable, and not according to benefits.
    
      Appeal from Benton District Court. — B. F. Cummings, Judge.
    Monday, June 25, 1917.
    Appellants appealed to the district court* from the assessment of benefits by the city council on account of the cost of paving certain streets in the city of Belle Blaine. Tn the district court, upon hearing, the assessment of the city council was sustained. The same parties appeal from the finding and judgment of the district court. —
    Affirmed.
    
      C. W. E. Snyder and Clarence Nichols, for appellants.
    
      W. C. Scrimgeour and Tobin & Tobin, for appellee.
   Stevens, J.

I. F. E. Snyder, C. W. E. Snyder and Angeline Snyder are each own-ops of lots, or tracts of land, m the city of Belle Blaine, Iowa, abutting upon ’certain streets recently improved by paving and guttering. Each of said parties filed written objections in the office of the city clerk to the assessments proposed by the schedule of the engineer then on file against said property, upon the ground that a portion of the cost of paving certain corner lots was illegally included in the amount proposed to be assessed against their lots, and that their lots should not be assessed for any part of the cost of the improvement.

The regularity of the proceedings of the city council, ■ except in the matter of assessing the cost of the improvement, is not questioned by appellant. The improvement included a portion of Eighth Avenue, Twelfth and other streets in said city. For the purpose of a more .equitable apportionment and assessment of the cost of the improvement upon the abutting property, the total improvement was divided into three assessment divisions, or districts, known as A, B and C. A portion of the cost of paving the corner lots at the intersection of Eighth Avenue and Twelfth Street and Ninth Avenue and Twelfth Street was apportioned and levied upon other property in the respective assessment districts. The assessments in Division B averaged $6.19 per foot for the 40-foot pavement, except the four corner properties at the intersection of Eighth Avenue and Twelfth Street, which, on the side, averaged $3.09 per foot. The corner lots at the intersection of Ninth Avenue and Twelfth Street were assessed, on the side, at an average cost of $2.92 per foot, whereas all other property on said street was assessed at an average cost of $5.85 per front foot. The total cost of paving the streets abutting upon the sides of said lots exceeded the amount assessed against the same approximately $2,200. This sum was apparently apportioned in the proper amount, and levied upon the remaining property in the respective assessment districts.

Appellants complain of the assessment of a portion of the said $2,200 against their respective tracts, and contend that the same should have been paid by the city. This contention is based upon Section 792-b, Supplement to the Code, which provides that:

“If the special, assessment which may be levied, against any lot or tract of land shall be insufficient to pay the cost of the improvement, the deficiency shall be paid out of the general fund, * * *”

Section 792-a of the Supplement to the Code is as follows:

“When any city or town council or board, of .public works levies any special assessment for any public improvement against any lot or tract of land, such special assessment shall be in proportion to the special benefits conferred upon the property thereby and not in excess of such benefits. Such assessment shall not exceed twenty-five per centum of the actual value of the lot or tract at the time of levy, * * *”

The city council, therefore, in the matter of levying special assessments for public improvements upon abutting property, must not levy an amount in excess of the special benefits conferred, nor, in any event, to exceed 25 per centum of the value of the property. Another limitation upon the power of the city council in levying special assessments for the cost of paving and other public improvements is that the same shall be equitably apportioned and the levy made in accordance therewith.

In an apparent effort to reach a just and proper apportionment and assessment of the costs of the improvement in question, the city council divided the whole improvement into three districts, as above stated, for assessment purposes, thereby treating the whole improvement, for assessment purposes, the same as though it were three separate improvements. By this means, a safer and more equitable basis for comparison and apportionment was provided. Evidently, the city council found that the deficit in question could be properly levied against other property benefited by the improvement without transgressing any of the limitations created by statute. This plan of assessing the cost of street improvements was approved by this court in a case decided at the present term (Carpenter v. City of Hamburg, 179 Iowa 1168), wherein it is held that, in making assessments, the total cost of the assessment district or improvement should be taken into consideration, and the assessments levied ratably and equitably according to the benefits conferred upon each tract or parcel abutting upon the improvement. The special benefits conferred upon a given tract or parcel may be less or greater than the total cost of the improvement immediately in front or on the side thereof. If the special benefits conferred upon a given tract exceed the cost of the improvement immediately in front thereof, there would seem to be no reason why the city council should not so apportion and levy the excess upon such other property benefited as to equitably distribute the burden of the whole cost of the improvement among the property owners in a given district. Such is the holding of the cited case, which is sustained by prior decisions of this court. See Des Moines Union Railway Company v. City of Des Moines, 140 Iowa 218; Early v. City of Fort Dodge, 136 Iowa 187.

II. Several members of the city council) and also the engineer having charge of the improvement, were called and examined as witnesses by appellants upon the trial m ... the court below. The apparent purpose of the testimony elicited from these witnesses was to show that the assessments were not levied according to the special benefits conferred upon the respective tracts or parcels of property abutting upon the improvement, but rather in accordance with ■ the so-called front-foot rule. Each of the witnesses testified to the conclusion that the assessments were levied strictly in accordance with the special benefits conferred, and that the front-foot rule was not followed. The evidence, however, fails to show that, in making the apportionment and levying the assessment, the front-foot rule was entirely disregarded by the council. No other evidence was offered on behalf of appellants, and the testimony of the several' witnesses taken together tends to show that the cost assessed against the respective tracts was fairly in accordance with the special benefits conferred by the whole improvement. At any rate, the evidence fails to show that the amount levied against each of the respective parcels or tracts owned by appellants was greater than the special benefits conferred tliereon. The engineer having charge of the matter testified that he examined each separate parcel or tract, and then prepared a schedule showing the special benefits conferred thereon, which, in his judgment, was just and fair. The schedule and classification prepared by the engineer were adopted and made the basis of the assessments levied by the city council.

The frontage may be properly taken into account as the basis for determining benefits, and the mere' fact that the assessment may have been substantially in accordance with the cost of the improvement in. front of each tract is not conclusive that the assessment was not according to. the special benefits conferred, and does not overcome the presumption that the city council proceeded according to law. Des Moines Union Railway Company v. City of Des Moines, supra; Stutsman v. City of Burlington, 127 Iowa 563; Minneapolis & St. L. R. Co. v. Lindquist, 119 Iowa 144.

It was also the duty of the city council to equitably apportion the cost of the imA x jt provement, so* that the burden of the total cost should be shared equitably 'and justly by each tract or parcel in the improvement district. The evidence offered on behalf of the appellants was to the effect that certain improved lots of much larger area were assessed at the same rate as other property, apparently similarly situated, of much less area. There may have been some inequality in the assessment of these respective parcels, but the evidence fails to show this fact, except in so far as same may- be inferred from the difference in the area and ajpparent value of the respective tracts. It was the duty of the city council to assess the cost against each of the respective tracts or parcels in accordance with the special benefits conferred, and in such a way as to make the apportionment of the whole costs just and equitable. This court cannot presume, from the mere fact that two separate tracts of materially different area are assessed the same amount, that such assessment, is inequitable and unjust, and not according to the ■special benefits conferred. We are unable to say, notwithstanding the apparent inequality in the assessment, in the absence of evidence showing that fact, that said assessment is unequal and not according to benefits conferred. No evidence was introduced by appellants upon this question, and the" trial court found that the assessment made by the city council should be upheld.

The judgment of the lower court is — A ffirmed.

Gaynor, C. J., Weaver and Preston, JJ., concur.  