Omaha daily bee., 1883-01-29
An Important Case Affecting
the Interests Of Nearly
Every City in lOWa
The Right to Levy SIP cia'
Assessment for Street
Improvements.

slOn, anu u hnarp ul'is!oh VI op'iioh
as to tho s~dvjsability and justice Of
the change, the gist of which was that
improvements instead of being
paid for by the city at large, should
DO paid for by tho properly directly
directly benefited.
AT present the question of paving
the streets here IL All all absorbing
Of discussion, and the move is
10 important that care should be
taken TO have every step in accord.
anco with law, technically co, III order
TO avoid litigation. Ia view OF these
and other matters here, tho following
concerning an important case Of kin
bred nature will be perused with in.
tereBt as embodied in a special from
Des Moines to the Chicago TImes:
A case is pending in the Polk county
circuit court, which If decided fIvorD-
bic to the plaintiff will stiect the In.
terests tf nearly every city in Iowa,
and some of these very materially. 1t
Is entitled Catch vs.. the city OF Des
Moines, and In lis consideration is
raised the constitutionality Of the law
empowering cities to levy ASSES sment,
for street Improvements, paving and
the construction of sewerage upon the
abutting property. The plaintiff OWNS
property fronting upon u atreot in
whijh a sewer was built during the
past summer. The city council made
asses ,ments for the cost Of cUnstruc.
lion past his property abutting upon
the street. He refused to pay, and
now brings action to restrain the city
from collecting the same, and bases
his action therefore upon the
ground that the statute regard
ing assessments tor local improve.
msnta 10 unconstitutional beo2uie
Il sanctions the taking e private pop.
erty for public purposes without duo
process OF law. In othe words, the
statute is institutional bcoluce IL
does not provide for notice TO the per.
son assessed or for "a day in cuuit.'
The Iowa supreme court III Warren
va, Hurley, 81 Iowa, 81, decided that
it is competent for tho Legislature uu-
der a state constitution To authorize
municipalities to require the streets to
be paved and the cost thereof to be
assessed upon the abu,ting lots, but
the q"lestion of the consti,utionality of
a statute which doesn't provide for
notice to the party assessed al not
passed upon, The federal court, how.
over, in the County Of San Mateo We.
The Southern Pacific Railway Com
psny, has decided this very point.
Ihi, case was bought to test
the oonstitutionai!,y Cf tho Coli
fornia statute, which enables
the state board TO a7sess rail.
road property without providing for
notice of such action. The opinion
rendered by Justice Field, and which
Is set out in full in tho federal reports
of Nov. Ia, 1882, asks the qaepti ms:
There being no provision of law
giving the company notice of the
action of the state board and an op-
portunity to be heard respecting it, is
the assessment Waldo Wonid the
taking of tho company's property In
the enforcement of the tax levied &C.
coroing to the assessment be d~epriving
1t of Us property without due process
of law2 1t Seems to be there can be
but ono answer to these questions.
There is something repugnant to all
pntiopa ~ .~p.t;,a IN tba ln,tr;,o &b,t
any body of men can DO clothed with
thepower of finally determining the value
of anothers property according to
which 1t may be taxed, without afford
ing to him an opportunity of being
heard respecting the correctness Of
their action. \
We cannot consent to any such doc.
trine. 1t conflicts with tho great
principle, which lies al tho fouuda.
ton of all Just government, that nc
one shall be deprived of his liberty
or his property without an opportun'
ity to be heard against the proceed
ings." This doctrine has also been
held by the New York court of ap'
pes's In Stuart vs.. Palmer, "a New
York, 1873. If. these views are enter
tsined by our state courts, N car
readily understand In what an un'
pleasant position our cities might bt
placed. All sums heretofore expended
for street improvements and assessed
upon abutting property might be re
covered by civil action, and bankrupt
cy and general municipal demoraliza
tion would result. Judge Given, be-
fore whom this case 10 pending, he
taken the case under advisement ant
will shortly render an opinion.