Omaha daily bee., 1899-11-04
DECIDES IN FAVOR OF THE CITY.
Judge Macy Decides Ordinances for
lowing Taxes Arc Constitutional.

Judge Macy Decides Ordinances for
LevyinE Taxes Are Constitutional.
In the suit brought by Fremont Benjamin
against the City OF Council Bluffs, attack
ing the state laws and city ordinances gov
erning 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 there
fore unconstitutional, Judge Macy of the
district court yesterday handed down his
decision, finding for the city.
Benjamin Is the owner of lot on Broad
way against which certain taxes for paw
ing, grading and curbing had been assessed.
These assessments were divided into five
annual payments, all OF which except the
last were paid. The lot was sold at tax
sale to ], A. l., Waddell for s5952. Ben
jamin brought suit to restrain the city and
county treasurer and county auditor from
issuing a tax deed to the property. -; In sup
port OF his petition for a restraining order
Benjamin alleged that the laws Of Iowa and
the ordinances of the city under which the
special assessments were made were in con-
fiict with article OF the amendments to
the constitution of the United States and
were in conflict with that portion thereof
which provides that mo person shall be
deprived Of his property without due process
OF law nor shall private property be taken
for public use without just compensation"
Further. Benjamin alleged that the as
sessments were levied upon his property
without regard to any benefits which it
derived from the improvements basing this
contention upon the now famous case Of
| the Town of Norwood o. against Baker, de-
| cided against the Ohio town by the supreme
| court, he asked that the special assessment
| taxes outstanding against his property be
declared null and void. In short, Benjamin's
contention was as upheld in the Ohio case,
! that the improvements were assessed against
| his property according to the linear foot
frontage and not according to the bene-
fits derived and that therefore the assess
ment was illegal as being unconstitutional.
The city in its answer claimed that the
taxes were assessed in accordance with the
| benefits derived by the property; that the
property was benefited to the amount OF
the tax and further that the law under
! which the assessment was made was con
stitutional, The city further contended that
Benjamin was estopped from bringing suit
as he purchased the property in question al
tax sale and paid one installment OF the
very taxes which he complained we're H.
legal
Judge Macy in his decision held that the
law which provided for the assessment
against property of special taxes for i'm,
provements, by the linear front foot rule
was constitutional and therefore overrulet
Benjamn's demurrer to the city's answer
In the district court yesterday Judge
Smith entered a number Of DEGREES In CON
nection with the litigation over the will
OF the late Mrs Sarah J. Ballard. The prin
cipal one was decree in the suit brough
by Frank j, Robinson, special administrator
against w, II. NJ. Pusey, attacking the trus
OF $4,000 made by Mrs. Ballard for tn,