Ottumwa semi-weekly courier. [volume] (Ottumwa, Iowa) 1899-1903, 1899-12-26
NOT PAY
Judge elberger HoldsPav-
ing Law Null and Void.
FIRST STATE DECISION.
West Second street Property owner.
Gain a Point in Their Fight Against
the Collection of the Tax Assess
cd Against Their Property.

For the first time in the history of
the State of.Iowa state court has de-
Glared the paving law now on the stat
ute books null and void. The supreme
court of the United States has held
the front foot rule unconstitutional
and has held that assessments must be
made according to benefits derived but
never before has state court inter-
preted our statute.
Judge Eichelberger has filed his
opinion sustaining the plaintiffs de-
murrer TO the answer of defendants in
the case of A. HI. Hamilton ct al VS..
the city of Ottumwa ct al, a suit
brought to restrain the defendants
from the collection of the paving tax
levied to pay for the asphalt paving OH
Second street. This case is finished
so far as this court is concerned. De-
PENDANTS attorney when asked this
morning about the matter said they
would certainly take the case to the
supreme court. When asked who
would be required to pay for the inn
provement should the supreme coura
mold that the front foot plan of as
sessing the cost of paving was uncon-
stitutional, said that the city would be
required 40 pay ii. Plaintiffs attor-
neys take different view of the mat
ter. They say that the contract with
the city provides that the city assumed
no responsibility other than to see
that the tax levied was transferred to
the contractor, and further provided
that the paving company must look
exclusively to the certificates and the
property owners for their money. The
front foot plan of assessment has been
declared unconstitutional and void in
the supreme court of the United States
and subsequently in federal courts. but
has never been decided in this state.
Should our court hold on Il line with
the others declaring that the law is
Unconstitutional and void andas should
1t be determined in "a subsequent ac.
ton that the city is not liable, then
the asphalt company would be the
loser by several thousand dollars in the
, absence of any law permitting assess
ments according to benefits derived.
1t is said that should such law be
passed after the issues in this case have
been adjudicated in the supreme court,
even then the assessment could not be
made according to benefits derived nor
in any, other way.
The petition filed in this case was
the outgrowth of several eases com
menced by property owners on West
Second street to restrain the Assyran
Asphalt company from the collection
OF the paving tax. The court held
that those property owners We're divid-
ed into classes. j. e., some had petit
toned the council for the i'm,
proyement to be made in y certain
way and another class in another way.
The court gave them permission to
bring separate actions according to the
class they belonged to, and the case of
Hamilton ct al. came first. This case"
as the court says in his opinion. tasks
an injunction 10 restrain the collection
of paving tax assessed against plain
tiff's property on West Second street.
The ground on which the injunction is
prayed for is that the assessment of
such 4 tax by what is known as the
front foot rule, without regard to ben
Gifts is unconstitutional and void, be-
ing inhibited by both the constitution
of Iowa and the fourteenth amendment
to the constitution of the United States.
An answerwa filed, justifying the as
sessment under the ordinances of the
city. providing for such assessment.
based on the statutes of the state au-
thorizing the passage OF such ordi-
nances. To this answer the plaintiffs
filed a demurrer on the ground that
such ordinances We're void as contra
yening the above mentioned constitu-
tional provision
The court cites the decisions of high
er courts as to the constituttonality of
the statute, permitting assessments by
the front foot rule, and says: "Follow-
ing, as am required to do, the author
itv of the supreme court, would I'M
questionably override the demurrer in
this case and hold the law valid if the
state constitution alone was invoked,
although the line of reasoning by
which the court arrived al its conclus-
ion does not commend itself to my
mind"
Concerning the assessment by the
front foot rule fhe court cited the ia
nous Norwood case, where it was held
that assessments must be made accord
ing TO the benefits derived and decided
the case at hand under the rule laid
down in that case. Other, points were
brought into the matter, decisions cited,
and the courts opinion given on line
Herewith.