Arizona republican., 1904-03-20
ACKNOWLEDGEMENT
Decision in Bennett vS. Board of Equalization
Judge hent, in Brief Oral Opinion, UphOlds Right of Legislature to Pass Exemption Bills.

The case of H. J. Bennett against | w F. Nichols and the other members
 of the territorial board of equalization
 in which application was made for writ of mandamus compelling the
 board to reassemble and list the prop
 erty of the S. r. P & P. railroad for taxation, was decided in the district
 court yesterday. The application for
 the writ was denied.
 The suit had been begun by the l plaintiff a tax payer. He contended | in the first place that the legislature which in 1887 and at subsequent times had sought to encourage railroad con struction by eXsmpting - intending
 roads from taxation for a period of years had exceeded it's authority. It was further contended that if the s.
 F. P. & P. railroad had ever been properly exempt from taxation under | such an exemption act the law grant 1 ing it had been repealed at the time Of
 the revision of the statutes in 1901. It
 was shown. though, that this particu- ! lar act and others for the same pur-
 pose had been exempt from repeal by | the legislature of 1901 so that the con 1 troversy was narrowed down to the i right of the legislature to pass an ex- l tlllpllbH act lt COuIl uCN4Ctu lil3l 1 it had power to do so.
 Judge Rents opinion vas oral and
 brief. He said that he understood that
 however the case might be decided in the lower courts, it would ultimately ! reach the supreme court of the United States. He would therefore consume
 little time in the preparation of an opinion. Re cCmphmented the attor- neys of both sides on their array of i authorities and denied the writ. The plaintiff gave notice Of appeal. 1 The defendant was represented by T. J. Merton, general counsel for the
 Santa Fe lines in Arizona and Cali forria.
 The court delivered a written opinion in the case of the territory against Thomas Armstrong. on appeal from
 the court Of the city recorder. Th-s is what is known as the adobe house case. The defendant had applied for a permit for building a house within the general fire limits of the city. It was understood that the house was to be constructed of brick. It was built of adobe and the defendant was ar rested fer a violation of the ordin- ance. Judgment was rendered against him in the court of the recorder and ,an appeal was taken to the district court. The defendant denied that be had violated any ordinance. In the first place he had built a house of brick, since an adobe is merely a sun dried brick. The court agreed with him as to the general definition Of brick, but section ZS of the ordinance the court found had defined the kind of brick that was meant. In prescrib- ing the kind of brick to oe used in foundations the ordinance says that they must be hard burned and that the walls must be built of ''well burned and well shaped brick" On this con tention, therefore, the court ruled against him.
 The other contention of the defense was that the city council had no right
 to specify that brick or stone should be used outside the special fire limit
 and within the general fire limit. The court held that the defendant had the better of this argument. Such power
 as the city council had used in framing 1 the ordinance had never been given to i it by charter. It may prescribe the ! kind of material that may be used within the special limit, but outside of l that and within the general limit it
 may only forbid the erection of wood-
 en walls. Judgment was given the de- 1 fendant.