The morning call., 1891-08-20
LIKE BANQUO'S GHOST
Old Street Claims That Will Not
Be DOwned.
a New Point Raised Which Threatens to In
volve the to City the Extent of Very
Large Amount of Money.

The proceeding instituted by Mrs. Cathe-
rine Zimmerman against Auditor Smiley to
compel him to countersign new assess
ment for the grading in 1868 of Jackson
street, between Franklin and Octavia, has
stirred quite a commotion in several OF the
city departments.
The history of this most peculiar claim
extends backward quarter of a century and
involves a series of street work complica-
tons that would fill large volume. Such,
for instance, as the Market-street cut, the
extension of Montgomery avenue and many
others of lesser magnitude all come under
substantially the same head.
The contractors who undertook some OF
these enormous jobs suffered financial
wreck, and for twenty years have been try
ing every expedieDt within their power to
recover Among them are j. J. Conln.
Peter Connolly and Patrick Creighton.
Roughly estimated, the claims arising out
OF these contracts aggre gate very large
sum, for which it is ma intained the city is
responsible.
These contractors were undoubtedly en-
titled to their pay, but they were unable to
collect it, because the assessments levied by
the Superintendent of Streets were defec-
tive. They appealed TO the courts in vain,
and years of expensive litigation left them
more hopelessly stranded than ever, and as
Il last I6SUiG lucS dppcdltu " luO AcSiS1'-
ture for relief.
SAVED BY THE LEGISLATURE.
Even then the same dismal fate has ever
awaited them until the recent session, when
two of them were passed, that OF Conlln,
amounting to S54,015. Patrick Creighton
assigned his claim to Andrew Zimmerman
in November, 1869. The latter has since
his interests, is prosecuting this claim. The
method is somewhat novel and yet appar-
emily straightforward and legitimate.
In several instances within the past
twenty years, where litigation has resulted
over faulty assessments, the Supreme Court
has invariably held that in all such cases it
Is the duty of the Superintendent of Streets
to make new assessment according to law,
so that the contractor may not be deprived
of his rights. 1t is tie duty of the Superin-
tendent to make n legal assessment; if he
makes one that is not legal it is, of course,
void, and Of no more effect than if not made
at all
The fact OF such void assessment does
not in any way affect the rights of the con-
tractor. The element of time, whether one,
two or twenty years, cuts no figure in the
case; the legal assessment must be made.
Here was splendid opening for these cou-
tractors.
DISPUTED ASSESSMENTS.
Their claims had all been defeated solely
upon the ground of illegal assessments. No
hence they have lost no rights, and they are
still entitled to the assessment originally
provided by the law under which the work
was performed. And so Mrs Zimmerman
called upon the Superintendent of Streets
to make the legal assessment for the work
performed by Creighton in 1868.
Being somewhat IN doubt about the case,
he called upon Counselor burst for advice
and received a reply as about outlined, in
conformity with Supreme Court rulings.
FTFNFC FNfl nfNT 1aH
fore to make out new assessment and
warrant and signed it, after which. accord
ing to the law, it was transmitted to the
Auditor Tor eountersignature.
When Mrs. Himmelman had gone that
far she encountered a serious stumbling
block in the way OF refusal, for the Audi
Tor said fatty he would not sign. 1t was
tbs that resulted in the application for a
writ OF mandate to compel him, which will
be heard by Judge Hunt to-day unless the
extension asked for by Mr.. burst is granted.
Among the property-owners on the two
blocks mentioned, who will be affected by
the proceedings, are W. f. Goad, Allen ST.
J. Bowie, Alexander Boyd, Miranda W.
Lux, j. b. Bacon, James Freeborne, Sarah
Fry, \. d. Rideout and W. Ii. Martin
They have been notified and will doubtless
participate in the contest.
A CONFERENCE CALLED.
Mayor SondersOn regards the matter as of
serious Importance. and for the purpose OF
inquiring into the exact nature of it called
conference in his Office last night, at which
were present himself, Auditor Smiley, City
and County Attorney Durst Supervisor
Ebert, Chairman of the Finance Committee,
and Meyer Jacobs, first assistant to Coun-
selor burst.
Auditor Smiley explained the merits of
the case, and why he refused to countersigu
the new assessment and warrant He
regards il as an old claim without any very
substantial foundation, and if he signed one
without hrst SubIeetlng 1t 10 a judicial in
vesiigation he might open the gates to num-
berlesS others Of ike character, and lay the
city liable for untold damages.
In answer TO the Mayors inquiry how
Counselor burst came 10 advise Superin-
tendent Giieran that he could make a new
q assessment in such an old case Mr. burst
explained that his advice was given simply
on the statement Of the case made to him.
He knew nothing whatever of its real mer-
It's Mr.. Gilieran had asked him whether
Il new assessment could he made at this
date, the original having been void. lie
made the only reply that could be made by
quoting the Supreme Court ruling above
referred TO-
CONTRASTING THE CLAIM.
The result of the conference was deter
mination to inquire into tile merits of the
claim, which will be done, of course. by
cOnteSting it in court. Its exact nature will
then be revealed, ana the question definitely
settled whether so great lapse Of time and
a complete change in the value and general
condition of things Will have no weight as
as against the claim.
Mr.. burst will take charge of the case at
once, and special counsel will be employed
if needed 1t is probable, however, that
the pTOperty-ownerS affected who are as
deeply interested in defeating the claim as
the city, will employ the special counsel.