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

THE OITuMwA
posed is peculiarly benefited, and
therefore the owners do not, in fact,
pay anything in excess of what they
receive by reason of such improve
ments.' On the promises thus laid
down the court decides that the exac
| ton from the owner of private prop
erty of the. cost of public improve
ment in substantial excess of the spe-
cial benefits accruing to him, is, as to
such excess, taking private property
for public use without compensation,
and that the assessment by the arbitra.
ry front foot rule was illegal because
it rested upon a basis that did not take
into consideration and was not meas
ured and limited by the benefits con-
| ferred. So, in this case, there is no
/ provision in the statute or ordinances
/ for determining which, if any, benefits
are to accrue to the owners of the
property assessed, and for comforting
| such assessment to the benefit accru-
| ing. In fact, under the decisions of our
supreme court above cited, all ques-
tons of benefits are excluded. Follow
ing the ruling in the Norwood case, I
sustain the demurrer to the answer,
and hold that the statutes authorizing
cities and towns to assess the cost of
4 paving their streets to the abutting
property owners by the front foot rule
| to be contrary to and in violation of
| the fourteenth amendment to the con-
stitution of the United States and
therefore void.
\ ~ ia vv,ss =
sit is claimed that the remedy by in
junction will not lie in this case be-
cause the plaintiffs have not rendered
or offered to pay the amount due. This
same contention was made in the Nor
wood case and is there answered in
the negative. The court says: The
present case is not one in which-as in
most of the cases brought to enjoin
the collection of taxes or the enforce
ment of special assessments-it can be
plainly or clearly seen from the show
ing made by the pleadings that par
ticular amount, if no more, is due from
the plaintiff, and which amount should
be paid or rendered before equity
would interfere. 1t is rather case in
which the entire assessment is Illegal.
In such case it is not necessary to ten
der as condition OF relief being grant
/ ed, any sum as representing what
| plaintiff supposed, or might guess, or
was willing to concede was the excess
OF costs over benefits accruing to the
property The plaintiffs are entitled,
without making such tender, to ask
a court of equity to, enjoin the en-
forcement of rule of assessment that
infringes upon their constitutional
rights.
Legality OF Tax May be Disputed.
at is alleged in the answer and
claimed in the argument that plaintiffs
having acquiesced in the work by
4 standing by and seeing it done without
taking steps to prevent it, are now
estopped to dispute the legality OF the
tax. The cases cited to sustain this
position are those where more irregu-
4 larities or errors in the notice, levy or
assessment, were relied on to defeat
the tax. There is broad distinction
between such cases and one where the
law itelf under which the tax is levied
is void, which is clearly pointed out in
Starr VS.. Burlington As Iowa, page 90,
where the court says: AS the proceed
ings for the levy Of the assessment up-
on plaintiffs property are void--were
without jurisdiction from the very be-
ginning-he is not estopped to deny
their validity on the ground that he
made no objection to the proceeding
while the improvement was in prog
ress As to more irregularities, when
jurisdiction in such case is acquired,
he would be estopped by his silence to
object thereto
1 Demurrer to answer sustained.
Frank w. Eichelberger, judge"
Who Will Have to Pay.
The plaintiffs in this case are A. HI.
Hamilton, Allen Johnston, w. II. Stew
ems, Phoebe Biddison, Stevens q
French, r. s. Thomas, Anna Phillips,
S. M. y. Dennis, Mary McCarroll estate.
j. B. McCarroll, VIII McCarroll, Phoebe
Biddison and Laura Kilby, only heirs
4 at law of the estates of Mary McCar-
roll and Charles L. McCarroll. The
defendant Asphalt company contends
void then the city would be liable but
in contraction the plaintiffs cite part
of the contract between the city and
| the Assyrian Asphalt company, before
the work of the improvement was
4 commenced, which follows:
'All such improvements shall be
paid for by the property owners whose
poperty fronts or abuts thereon. The
City of Ottumwa, Iowa, shall issue cer-
titicates to the contractor securing the
contract in the manner as provided by
ordinance of said city, and by the stat
utes of Iowa in respect thereto and
4 said certificates shall in all respects
comply Herewith; said city of Ottum-
wa, Iowa, shall transfer to said con-
tractor all its right and title to, in and
with respect to such assessments and.
their assigns to receive such and col
lect or have collected such assessments
and the city of Ottumwa, Iowa, will
take all steps provided by ordinances
and the statutes of Iowa in regard
thereto, and will, invest said contractor
with all the rights and interest in such
assessment, and all authority thereto.
The city of Ottumwa, Iowa, will not
make itself personally liable for the
payment of the cost of such improve
4 ments and will not incur anv indebted
ness for the same. The contractor
must look exclusively to such certifi-
Gates and to the property owners there
for
The Asphalt company will not give
up the fight until the courts of last re-
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