El Paso daily herald. (El Paso, Tex.) 1881-1901, 1899-07-27

that should be fair to citizens and safe
for contractors. The volume of de-
cisions bearing on the subject is a
large one, but since we in Texas are
subject to certain special considera-
lions unknown in other states 1t will
only be necessary to refer to the ex-
perience in this state and city.
When this city began to improve Its
streets on large scale special assess
ments were made against the property
| AUDITING on the improved sections &C
cording to the existing law on the sub
iect. Some OF the property owners
paid their assessments without protest.
Other contested the matter in the
courts, and it was found that the as
sessment did not hold, particularly
against nonresident owners. The
courts had previously held that such
special taxes when levied against
homestead property were invalid-this
after they had before upheld such
| tax assessments against homestead pro-
perty, thus reversing their own deci-
sions. An endeavor was made at the
last session of the legislature to amend
the charter so that the special tax
for local street improvements should
constitute personal liability against
owners of abutting.property, and should
also be a lien upon the respective lots
from the time of the assessment. This
arrangement was patterned after the
practice of another state, which had up
to that time stood uncontested. But in
the course of time the procedure was
called in question In the courts by some
property owners, and it was found that
the person al liability provision could not
hold as against nonresident owners.
There being no Jurisdiction in such
cases over the person of the non re-
sidents, and no legal service, no power
rests in a legislature to enact such q
statute. The court held that to en-
force an assessment of such a nature
against non resident, SO far as his
personal liability ia concerned, would
amount to the taking of property with
out due process of law.
and would be q violation of the
federal constitution. 1t WAS
held that an assessment upon lots for q
local improvement is in the nature of
judgment, and the state has no juris-
diction over non resident owners as to
personal liability beyond the actual
property involved in the improvement,
and then only so far as the tax does not
exceed the benefit derived, since to re-
quire more than that would be the
taking of property without due pro-
cess of law, and without compensation,
contrary to the constitution. The fed
eral supreme court established these
points late in February of this year
in its decision in the case of Dewey
v. the City of Des Moines. Thus the
present city charter is rendered inef-
feotive.
On June 19 the supreme court OF Tex
as, basing it's decision Immediately on
the late decision of the federal SUI
preme court in the case of Village of
Norwood V. Baker, held once for all
that the legislature cannot empow
er a municipal corporation to assess
the cost of a. public improvement on
exceeding the benefits derived there
from. by such property. Such an act
constitutes taking of private proper
ty without just compensation, in def
ance of the rights guaranteed to citi
zsns by the federal and state constitu-
tions. Thus 1t is clear that
any assessment to pay for local
4 inn mr. ant f-
of the cost of the improvement oppo-
site the respective parcels of property,
or upon a 'front foot" basis, or upon
any other basis not expressly based on
of the special benefits de-
rived by the AUDITING property, is un-
constitutional and therefore null and |
void. The property owner contesting |
such assessment would not even be re-
Quired to show the true benefit accru-
ing to his property or to show that the |
tax exceeded such true benefit, it be-
ing the duty of the court to declare |
the whole assessment invalid.
Thus this city is debarred from I'M
dertaking any street and sidewalk i'm
where the intention is to
assess the cost or any part of it upon
AUDITING property without regard to
the special benefits derived by such
Since an assessment limited
to the collection of the amount of
special benefit and NO II ore would be
to pay for Improvements
desired; since, again, it would be prac-
ideally almost impossible to determine
fairly what such special benefits would
amount to; and since sucha system does