Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1903-09-21

ONE ASSESSMENT is DENIED
Third Street Assessment Is Affirmed,
and Portion of Jerome Street Dis
missed-city Will Undoubtedly Ap.
peal the Case to the Supreme Court
Judge caswelPs Opinion.

1
Judge CaswelI's Opinion.
| Judge Caswell in the district cour
this morning. gave his deeis
ion in the matter of th,
lappeal Of w. f. Leech from the spec
| ial assessment levy of the city OF Mar
shalltown, on the paving abuttiag TIL,
Leeeh property, at the corner of Thirt
| and Jerome streets. The Third stree
assessment was affirmed, and portion
of Jerome dismissed. A second assess
ment on Jerome street was denied a.
the court holds that the assessment OF
the city exceeds the benefits to The
property. There is a difference OF
opinion among the attorneys as to who
has Won the victory. The city gets 8
favorable decision on two of the three
assessments, as all We're covered in the
one action. but one of the levies OH
Jerome street is denied by the courts
decision.
Judge Caswell holds that the council
had not proceeded in exact accordance
10 the law, and that it is the duty OF
the council. in making special assess :
nents, TO first ascertain the amount OF
benefits to each lot and parcel Of land,
and then take the sum total OF the
whole improvement, and assess 1t III
proportion TO the benefits. In orler &c
10 that the council should first take
ne fair market value of the property,
Immediately before the Improvement is
made and a fair market value immed-
lately after the improvement is COM
nle;ed, and from the difference between
the amounts should be deducted the
general benefits The remainder, then,
will be the special benefits.
Judge Caswell finds. as a matter of
TACT, the resolution of the city council
making the assessments, passed Nov.
10. 1902. which declares tina.
The council had inspected the premises,
md found that in no Instance did the
proposed assessments. as set forth. in
the city engineers report. exceed th;,
special benefits. and in no instance did
II exceed % per cent of the actual value
If the respective lots at the time of
The levy. and that in each instance the
proposed assessment WAS in proportion
% the benefits, did not state what the
council had actually done. In other
words the council had not actually done
What its resolution declared it had
tone
The outcome of the decision is that
the assessment of North Third street
n A
appeal from the assessment on the east
thirteen feet of the north forty-five
feet of lot 8, fronting on Jerome street.
is dismissed, because the appellant had
failed to file proper objections and all
further assessment against tile north
forty-tiv feet, of lot 10. also fronting
on Jerome street, is denied. the court
refusing to make any assessment what
ever. This gives Mr.. Leech. according
to the decision of the court, free paw
ing IN front of one lot on Jerome street.
and authorizes him to pay the full ex-
tent OF the assessment as made against
the lot fronting on Third street, anu
one OH Jerome.
In summing up his finding in the case
or w. f. Leech VS.. the City of Mar
shutdown, the court said:
"Of course there Is no question but
what 1t Is the duty of the council. In
making these assessments, to first as
certain the amount of benefits to each
lot and parcel of land, and then TO take
the sum total Of the whole improve
nent and assess 1t up in proportion tt
the benefits They cannot do this in
a half day, nor can they do II in a day;
that cannot be well done without put
ting "a good deal of time on it, and /
think it is the duty of the council 10
put the necessary time on II and try
to carefully adjust it in that way, and
live UP to the spirit of the law; not to
try to put it on to the people in a
different way than the law provides.
III this case / find that the council did
thru and probably concluded that each
ones share was not any more than the
special benefits, or, one-fourth the val
ue, and yet, it is pretty hard to see
how even they did that in The length
of time they put upon it, but they could
not have done more than that. Now,
shat has not been appealed from, but
If | was finding the facts, l would find
that that was not done correctly under
the statute. But the only thing that Is
appealed from, is the claimed error In
exceeding the limits. That is, the coun-
ell did not seem TO have appreciated the
difference between making the assess
ment in the proper way, and the law
which simply pertained to exceeding the
limits. In assessing it up 1t must be
done in proportion to the benefits. If
one lot is benefited more than another
per square yard, that must be assessed
more. The twenty-five per cent of the
value, or the special benefits is simply
a limitation, not a method of assess
.nent There is not any law for assess
ing these improvements up against the
ahutting property not exceeding GER
tain limits. If that had been the in
tention of the law it would have simply
read that these improvements should
be assessed up against the AUDITING
not exceeding twenty five
per cent of the value and rot exceed
ing the special benefits.
THE rule of interpretation is, to give
III language some meaning II 1t is as
sessed, it must be In proportion to the
benefits and not exceeding that.
Il think the proper way To get at the
special benefits is, to take the market
value OF the property immediately be-
fore the Improvement Is made, then
AXE the market value OF the property
after the Improvement is
md then take from the general bene
..