Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1903-10-02
Judge Caswell Decides In City,
Favor In Appeal of NJ. L.,
P. & R'y Company
is A TEST CASE IN THE STATE
Court Holds That Even Tho Council
Has Exempted by Franchise Rail
way Company Under Former Stat
utes, 1t Is Accessible Under the
Present Laws-Decisicn Is Most Inn
portant One.

In the district court his morning
Judge Caswell announced his de-
cision in the case of the appeal of the
Marshaltown Light, Power & Rail
way Company from the special assess
ment of the city of Marshalltown
against its property, and against the
between the rails on its North Third
street line, and one foot outside thereof.
The assessment made by the city is af-
firmed by the court In its decision. The
case is one of exceptional interest. ana
of much Importance, for il is test ac-
ton in the state. The decision af-
fects assessments in all aggregating
approximately $4,000, and raises the
question, under the present statutes,
never heretofore determined by the SUI
preme court of Iowa
In 1892 the Marshalltown Light. Pow
er & Railway Company laid its tracks
upon the streets of the city of Mar
shalltown under a franchise which, by
its terms. exempted the street raft
way company from paving any part
of streets wherein its tracks should
be laid The statutes existing at thu
time of the granting of this franchise
made il optional with cities to require
street railways to pay the cost of paw
Ing three and one-half feet each side
OF the middle line of their tracks. A
subsequent change of the statutes was
made in the revision OF 1897. under
Which the court finds the appellant
company is liable for the cost of thu
paving of the street between the rails
OF its tracks and one foot on either
side thereof.
Judge Caswell. in affirming the as
sessment of the city. finds that the
state legislature reserved to itself the
right to change the law of the special
assessment. and that under the statutes
as they existed at the time the street
railways franchise was granted, per-
mited the council to exempt the COM
pany from paying for the cost of the
paviEg. but that the statutes did not
any contract of general ex-
amption, regardless of any changes of
the statutes which might be made. In
other words the council could not make
any general contract of exemption that
would exempt the railway company
from paying the assessment when the
legislature would change the statutes.
making it mandatory upon the railway
company to ray q part of the cost of
the paving.
The council is upheld by the courts
decision, and the same decision that
applies to North Third street will hold
good to the South Third avenue assess
nent from which the street railway
has already appea d. The
will also undoubtedly appeal
from the assessment of West Main
street when it Is made. The proceed
ngs In each case are identical. Now
that the court has given a decision on
Inc North Third street case the Third
avenue appeal will likely stand on the
iocket of the district court. awaiting
.ae final determination Of this case by
me supreme court
The case will doubtless be APPEALED to
he supreme court OF Iowa. and pos
sibly to the supreme court OF the United
States. as federal questions are raised
II the ease.