Omaha daily bee., 1899-04-16
RAISES A NEW POINT OF Law
Benjamin Brings Suit Against City and
County officials.
SEEKS TO STOP ISSUANCE OF TAX DEED
Alleges TINT state Laws aud Ordi-
nunces of city of Counci Bluns
Are In Conflict with Consti-
tuition of United states.
.EEKS TO STOP ISSUANCE OF TAX DEED

Fremont Benjamin has brought suit at
lacking the state laws and city ordinances
governing the assessing and levying OF
taxes for special Improvements, alleging
that they are in conflict with the provisions
Of the constitution of the United States and
therefore unconstitutional. The action is
against the city Of Council Bluffs, william
Arnd, county treasurer, and II. V. lnnes,
county auditor. He asks that they be en-
Joined from issuing a tax deed to a certain
lot owned by himself and which has been
sold for taxes. J. A. L. Waddell, the pur-
chaser of the property in question at tax
sale, is also made party defendant.
Benjamin alleges that he is the owner Of
q lot which abuts on Broadway and that in
February, 1887, the city council passed a
resolution requiring that Broadway from
Twelfth street to the western city limits
be graded, paved and curbed. The stree;
was duly paved with cedar blocks and costs
Of special improvements were assessed up
against Benjamin's lot as follows: Paving,
S2O4.60; grading, Sizes; c%urbing, S12.45.
These assessments were divided into five
annual payments, all of which except the
last, amounting to $i2.92 for paving, S2.73
for grading and S2.49 for curbing, Benjamin
states he paid. The Let was sold at tax sale
January II, 1895, to J. A. l.. Waddell for
the sum of $59.52.
In support of his petition for a restrain
Ing order, Benjamin alleges that the laws
of the state OF Iowa and the ordinances OF
the city of Council Bluffs, under which the
special assessments were made, are in con-
ilict with article V of the amendments to
the constitution of the United States and
are in conflict with that portion thereof
which provides that mo person shall be de-
prived of his property without due process
of law, nor shall private property be taken
for public use without just compensation"
Further, Benjamin alleges that the as
sessments for grading, paving and curling
taxes were levied upon his property with
out regard to any benefits which it derived
from the improvements and that all of the
statutes of the state Of Iowa and all of the
ordinances of the city Of Council Bluffs
which authorize such assessments to be
made in any way are unconstitutional and
void and in conflict with and contrary to
the constitution of the United States. He
therefore asks that the special assessment
taxes outstanding against his property be
declared null and void by the court.
Benjamin also states that he is ready and
anxious to pay all legal taxes assessed
against his property and thus redeem It,
but that until the court determine what
~ '""1'i "hN Al pulb 10
illegal and void, he cannot pay the legal
portion and make redemption upon the tax
sale.
The supreme court has recently ruled that
a law that assessed the cost of paving
against property in any other manner except
In proportion to the benefits derived was
unconstitutional. The laws Of this state pro-
vide for the assessment of the cost of paw
ing against property in proportion to the
extent of its frontage abutting upon the
street improved. The outcome Of this case
will be of vast Importance to the city as it
has been contended that the cost of paving
Broadway was in excess of the benefits to
the abutting property. Should Benjamin
succeed in having the courts declare the
special assessments on his property illegal,
1t is very probable that other Broadway
property owners will at once follow suit. A
large portion of the property abutting on
Broadway has been sold at tax sale.