Ottumwa semi-weekly courier. [volume] (Ottumwa, Iowa) 1899-1903, 1899-12-28
Affects That Glass Who Petitioned
for the Improvement.
TEXT OF THE MATTER GIVEN IN FULL
The City Cites the Contract Between 1t
and the Contractor to Itefnte Argue
.pent That the City IL Liable
for Cost of the Paving.
From Wednesdays Daily.

3
AS stated in Yesterdays Courier, for
the first time III the history OF the
state of Iowa a district judge has held
the paving law void under which the
assessment of paving tax is made and
collected. In the opinion rendered by
Judge Eichelberger, but one class OF
persons are affected. That is to say,
the court permitted the property own
ers along West Second street to bring
separate actions, and held that those
who had petitioned for the improve
ment to be laid on the old roadbed,
should be distinguished from those
who had not petitioned at all. To this
latter class belong the A. Il. Hamilton
ct al. contingent, and to the, former.
class the J. T. Hackworth ct al. people
belong. The latter class only are con-
sidered in the opinion herewith given.
The Hackworth ct al. case will require
proof and will come to trial in the
regular way, SO attorneys say, because
their contention is that the asphalt
company did not comply with the
terms of their petition, hence they are
not bound by 1t. The opinion in the
Hamilton case follows:
The Opinion.
The petition in this case asks an
injunction to restrain the collection of
paving tax assessed against the prop
erty of plaintiffs, abutting on Second
street, in the city of Ottumwa, which
has been paved with asphalt. The
ground on which an injunction is
prayed for is that the assessment of
such tax by what is commonly known
as the front foot rule without regard
to benefits, is unconstitutional and
void, being inhibited by both the con-
stitution of Iowa and the fourteenth
amendment to the constitution of the
United States, the former of which, in
terms, prohibits the taking of private
property for public use without just
compensation, and the latter that prop
erty shall not be taken for public use
without due process of law.
An answer was filed, iustifying un-
der the ordinances of the city provid-
ing for such assessment, based on the
the statutes of the state authorizing
the passage of such ordinances. To
this answer the plaintiffs filed de-
murer, on the ground that such stat
utes and ordinances were void in con-
travening the above mentioned consti-
tutional provisions.
The Inv Unconstitutional.
eThe question here presented as to
the constitutionality of the statute un-
der the provisions of our state consti-
tuition is no longer an open question in
the light of the decisions of our own
supreme court. 1t first arose and was
decided in the case of Warren VS..
HenXley, 81 Iowa, page 81, in which
case the court held that the statute
authorizing cities and towns to provide
for paving their streets and charging
the entire cost thereof to the abutting
owner, was not in violation of the state
constitution prohibiting the taking of
private property for public use without
compensation. 1t was placed ON the
ri~ht of taxation alone, and Justice
! Beck, in delivering the opinion, admits
that he is unable to support his con
clusion on the reasoning of the author
tiles, but satisfies himself with the
course of argument he presents in the
opinion. He expressly says that he
finds no support for his conclusion up
on the ground that the lax may be
sustained because the pronerty is bene-
fitted by the Improvement but places
his opinion solely on the ground that
the object of taNation-the improve
ment of the streets-is public object
which will support it, After citing
cases from other states in which such
authority is sanctioned on the ground
that the tax is authorized because of
benefits to- accrue to the owner Of
abutting property, he states that in
his opinion this view is not sustained
on rrInciple. He then points out that
other cases sustain the right on the