Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1899-12-27
PAVING Law IS VOID
Judge Eichelberger Of ottumwa De.
clares Special Assessment Law
is Not Valid.
First Time an Iowa Court Has De.
clared the Statute to be I'm
constitutional.
Decision of Federal Court in the
Norwood Case Cited by the
Judge.

Ottumwa, Dec. 27.-For the first time
in the history of the state of Iowa a
court has held that the statute relating
to the assessment and collection of paw
ing tax by the front foot rule is void
and that the Iowa statute is unconsti-
tutional. This is In line with the de-
cisions OF ii.- ;iisss;;sd. States supreme
courts and federal courts, but it is the
first time that an Iowa court has
passed upon the constitutionality Of the
law
Judge F. w lsichclberger, in the case
|of A. ii. Hamilton, ct al, VS.. the city
of Ottuinwa and the Assyrian Asphalt
Company of Chicago. rendered his opin-
ion. The petition filed by plaintiff asks
that an injunction issue 10 restrain the
defendants from the collection of paw
ing tax assessed against property own
ers whose property abutted on the
Improvement. The ground on which the
injunction Is asked is that the tax was
assessed by the front foot rule and
not in proportion to the benefits derived.
Plaintiffs say that the assessment is
unconstitutional and void, being inhib-
tied by both the constitution of the
state of Iowa and the fourteenth amend,
ment to the constitution of the United
States, the former of which prohibits
the taking of private property without
just compensation, and the latter that
property shall not be taken for public
| use without due process of law. An
answer was filed by the defendants JUS
l,tifying the action taken under the ordi-
nance based on the state law authoriz-
ling the passage of such ordinances. To
this answer the plaintiff filed a demur-
rer on the ground that such statutes
and ordinances We're void as contraven-
Ling the aforementioned constitutional
| provisions.
The court in its opinion says that in
1.-The light of recent decisions by our own
supreme court the question is no longer
an open one'' (Warren VS.. Huxley, 81
Iowa, page 3l.) The court cited numer-
Gus cases in which it had been held in
l5this state that the statute is constitu-
lstional giving cities the power to i'm
l5prove their streets and assess the entire
lscost thereof to the abuttng property
and not in violation of the fourteenth
amendment. In one case it was placed
| on the right of taxation alone. which,
| il carried to its logical conclusion.
would authorize complete confiscation
of property under the guise of taxa
| ton" BY a fine line of reasoning the
court, in line with the decision of the
Hunted States supreme court in the case
of Norwood VS.. Baker, holds that the
front foot plan of assessment is void
4 because it takes into no account the
| benefits derived. The validity of the
assessment was attacked by the demur-
rer and is the first case in which the
Inhibition of the federal constitution
has been involved in this state in this
class of cases and We're not involved in
| any of the decisions the court cites in
his opinion, and he therefore says he is
not bound by them.
Following the rule in the Norwood
case" says the court II sustain the
| demurrer to the answer and hold that
4 the statute authorizing cities and towns
to assess the cost of paving their streets
to the abutting property owners by the
front foot rule to be contrary to and in
4 violation of the fourteenth amendment
TO the constitution of the United States
4 and is therefore void
/ The case will go TO the supreme court
i in demurrer.