Ottumwa semi-weekly courier. [volume] (Ottumwa, Iowa) 1899-1903, 1899-12-28

| ground that 1t is competent to make
1 the street district for taxing proposes.
The conclusion arrived at is that the
tax is not prohibited by the constitu-
| tional provision which forbds taking
private property for public use with
out compensation, because that pro-
vision of the constitution is limited to
cases where property is taken under
the exercise of eminent domain, and
has no application to and does not
therefore limit the taxing power. 1t
will thus be seen that in this case. up
on which all the subsequent decisions
upholding the authority are based.
such authority is not placed upon the
ground that the adjoining property is
benefited to a greater degree than 9th
er property which does not abut on the
improvement and not therefore taxed
TO pay for it, but on the broad ground
that the taxing power of the state is
unlimited and unrestricted by the con-
stitution. Carried to its logical conclu-
sion this principle would authorize
comnlete confiscation of property I'M
der the guise of taxation. Justice Mil
Ter expressly dissented from the reas-
oning, although concurring in the con-
clusion on other grounds. This decis-
ion was subsequently followed by the
supreme court in several cases, the
last two of which were recently de-
cided by it. Dewey VS.. Des Moines,
101 Iowa, page 423; Allen vs.. Daven-
port. l0T Iowa, page 1903. In the Dew
ey case the court says: We do not
consider it necessary to enter into an
4 elaborate discussion of the question us
to whether or not u special assessment
must be based in part, even, upon the
idea of benefit to be actually received
by the abutting property. 1t is sufi-
cient;to say that it has been repeatedly
held by the court that such improve
ment of streets is a public object,
which will support such an assessment,
regardless OF the fact whether or not
it is benefit to the abutting prop
erty; In the Allen case, Deener judge,
spealiing for the court, says: The
4 front foot rule Of assessment is chal-
| lenged, and it is also said that, as the
assessments are not limited to the bene-
fits conferred, the statute is unconstitu-
tional. We have heretofore approved
OF what is known as the front foot rule
of assessment and have always said
that the expense of improving streets
has been too long imposed upon abut-
ting property without regard to bene-
hts, to be now called in question: cit
i inp the previous decisions of the court.
1t is significant, however, in this con-
nection to note that he further says
that it may not be out of place to say
that, 1T the proposition were an original
one he and perhaps other members of
4 the court, as now constituted, would
be strongly inclined to the view that
such assessments can only be justified
on the theory of benefits conferred ,
On the ground, however, or res adjud-
lcata, the question is said by him to be
now foreclosed, and it is better per-
4 haps that it be not disturbed
Following, as / am required to do,
the authority of the supreme court, 1
would unquestionably override the de-
murrer in this case and hold the law
4 valid if the state constitution alone was
invoked, although l may be permitted
to suggest, with all due Difference, that
the reasoning by which the higher
court arrived at its conclusion does not
commend itself to my mind, and it
seems never to have met the approval
i of all the members of that court I
have been somewhat particular in
1 pointing out, by extracts from the
opinions of the court, the grounds on
| which it has sustained the front foot
rule of assessments, and in thus show
| ing that benefits to property owners
1 were excluded therefrom, for the rea-
son that, as it will be seen hereafter,
1 the United States supreme court has
taken Numerically opposite view Of
! the law in its construction of the effect
to be given to the fourteenth amend
ment to the constitution of the United
States, which is, in substance, the same
as the section of our state constitution
which was under consideration in the
foregoing cases.
The Validity of the Assessment.
"The validity of the assessment in
this case is also attacked by the de-
4 trary to the fourteenth amendment to
the constitution of the United States,
which provides that mo state shall de-
4 prive any person of properly without
due process of law This is the first
case in which this Inhibition of the
federal constitution has been invoked
1 in this state in this class of cases. 1t
was not involved in any of the decisions
above cited, and they are not therefore
authoritative or binding on me in this
case in so far as the validity of these
! assessments is drawn in question under
4 the provisions of the United States con-
4 stitution. That instrument is the SUI
preme law of the land, and ali laws
which contravene its provision must
give way. Final and authoritative
meaning is given to it by the highest
| judicial tribunal in the land, to which
all other courts must bow. The valid
4 ity of the front foot assessment plan
was directly drawn in question in a
case recently decided by the supreme
court OF the United States, and it was
held by that august tribunal that such
assessments were void. Norwood VS..
Baker, May term, 1898.
i The court in that case says: ''The
i plaintiffs suit proceeded upon the
ground, distinctly stated, that the as
sessment in question was in violation
of the fourteenth amendment provid-
ing that no state shall deprive any per-
son of property without due process of
law. The court then says that under
4 its prior decisions due process of law
requires compensation to be made or
4 secured to the owner whose private
property is taken by a state or under
4 its authority for public use, by which
construction this amendment and our
state constitution which, in express
terms prohibits such taking without
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