The Oskaloosa herald., 1905-02-23
COURT
REvERSES ITSELF
.oskALoosA PAVING CASE is SET.
tiled FOR ALL TINE.
MANY CITIES ARE INTERESTED
Old Question Cannon Be Re-opened
Right of Cities to Reassess.
Property for improvements
is Sustained.

DGS MOlHeSt fSD. IO!-lu6 SupICmc
court yesterday reversed itself and
the case of Thomas Martin against
the city of Oskaloosa, involving the
| question OF the validity of a special
assessment for improvements made
under the statute without the enact
ment Of a general ordinance by the
city.
IL was a case which excited the
gravest concern in every city in the
state. The court had decided it adj
versely to the municipality a few
months ago, but the attorneys for
several other cities then Joined with
John N. Mccoy, ex-city solicitor, and
C.. c. orvis. the present city solicitor
Of Oskaloosa in asking for a rehear'
ing, 1t was apparent that if the orig
inal opinion Of the supreme court was
allowed to stand, the paving and 9th,
er public improvement securities Is
Isued by many cities would become in.
validated, or, at least, question would
be- raistd as to. their validity, result.
ing in untold litigations 81
Oskaloosa had passed an ordinance
i'm 1896 which provided for assessing
paving improvements according to
the front foot rule. This was the law
in Iowa, at that time Subsequent
statutes changed the rule to that OF
assessment according to benefits, vii
conditions. h
In 1901 Oskaloosa made an assess.
ment for paving according to its or.
dinance of 1896 and the old law. No
new ordinance had been passed. The
court set asaide the assessment as
unlawful. D an We:
Then a new ordinance was passed
embodying the provisions of the new
law for assessment according to bene-
fits. Under the ordinance, a re-as-
sessment of the work was effected by
the city. This was in January, 1902.
The district court decided that a re-
assessment was invalid and set it
aside. The city of Oskaloosa appeal
ed to the supreme court, which at
first decided that the re-assessment
vas invalid. Yesterday, it decided
LII EJuSW SAIg III oohdlOOSds E.MHEr
The property owners, and there
were two cases beside that OF Mr..
Martin in the controversy, contended
that as the ordinance of 1896 was In
valid, any assessment OF work done
under it was invalid. The city con.
tended that no ordinance at all was
necessary to enable the city to act
in accordance with the statute which
fully covered the proceedings, and,
second, that though the section or
the ordinance ~aaffecting assessment
by the front foot rule may have been
invalid, the remainder of the ordi-
nance was not, and that the re-assess-
ment, therefore, must be valid.
The supreme court says that If a
general ordinance was required and
the ordinance of Oskaloosa passed in
1896 was wholly invalid, then the act
Of the city was without authority
throughout and the defect was fatal.
But the, court believes that the ordi-
nance was, not required.
1t is true that under the code OF
1S734a general ordinance was requir-
ed, but Subsequent acts of the legisla.
turer fixed prescribed and specific
methods of proceeding " with public
improvements, and the, method OF
making assessment. These, statutes
and methods were included in the new
code. '0 "''" .''1'. -S.'@ ''"o'
While a re-codification does not in.
dictate that the Legislative intent wal
to- change law, and the decisions on
the subject handed down prior to the
re-codifieation remain applicable, yet
If the plain intent of the Legislature
was radically to, change or materially
to ada to previous statutory provis.
ions the former decisions of the court
could not be held to be binding. a1sY9
So that had the assessment at Os-
kaloesa, when first made been made
under the, statue ana not the ordi
nance Of 1895, it would have been
| valid -4.-r
Opinion Of Court.
Since q legal assessment was pos.
sible, therefore, a re-assessment is
~ fN NM
The court says:
1.-The fun and plenary power Of the
legislature, to confer authority upon
a municipaf corporation and to direct
the method Of its exercise cannot be
questioned, and if we find that the
legislature has conferred upon cities
suchas the defendant the power to or
der street improvements to be made
and to proceed in prescribed meth
cd in making improvements ASSESSING
the cost on abutting property owners
then there can be no question, in oui
Judgment, that If the defendant pur
sued the method prescribed and tool
the steps required the assessment
are valid.
ssIt can hardly be said that a con
stitutional provision is not ~self-enact
i've and operative without Legislation
we are Of the opinion that nj
general ordinance was essential to en-
ablethe city to order the improve
ment and take the steps necessary t,
a yald assessment n