Beltz v. Bd. of Park Com'rs of City of Minneapolis (In re Improvement of Lake of the Isles Park), 22717.

• Decision Date: 21 April 1922
• Docket Number: No. 22717.,22717.
• Parties: In re IMPROVEMENT OF LAKE OF THE ISLES PARK. BELTZ et al. v. BOARD OF PARK COM'RS OF CITY OF MINNEAPOLIS.
• Court: Minnesota Supreme Court

152 Minn. 29

188 N.W. 54

In re IMPROVEMENT OF LAKE OF THE ISLES PARK.

BELTZ et al.

v.BOARD OF PARK COM'RS OF CITY OF MINNEAPOLIS.

No. 22717.

Supreme Court of Minnesota.

April 21, 1922.

Appeal from District Court, Hennepin County; Chas. S. Jelley, Judge.

Proceedings by the Board of Park Commissioners of the City of Minneapolis to improve the Lake of the Isles Park, etc. From an order of the district court confirming the report of the Commissioners appointed to reassess the property, Alfred A. Beltz and others appeal. Affirmed.

Syllabus by the Court

The intermediate order of the district court determining that the proceedings for the improvement of a park were regular, and that jurisdiction requirements had been observed may be reviewed in this court on appeal from the court's final order entered pursuant to section 3, c. 185, Laws 1911, as amended (Gen. St. 1913, § 1568, Gen. St. Supp. 1917, § 1568-1).

Construing a clause in a deed to the city of Minneapolis conveying land for a parkway, and forever exempting the remaining lands of the grantor from assessments for benefits from the improvement of the parkway, it is held, that the exemption extended only to assessments which might be levied under the special acts of the Legislature mentioned in the deed.

The term ‘local improvements' in section 1, art. 9, of the state Constitution comprehends the acquisition of land for a public park, fitting it for open air recreation, and setting out trees and shrubbery.

Whether certain additions to a public park are of special benefit to property in the neighborhood is a matter of opinion on the facts as they appear, and the judgment of the body charged with the duty of ascertaining and assessing benefits will not be disturbed by the courts unless reasonable men could not have arrived at the same conclusion honestly.

The improvements described in the opinion were properly combined in one proceeding, and were in compliance with chapter 185 (Gen. St. 1913, Gen. St. Supp. 1917, § 1566 et seq.), which does not require the concurrent resolution of the park board and city council to authorize the improvement of an existing park or parkway.

Where such an improvement is to be made, the statute does not require a plat and survey. A plan showing with reasonable certainty the nature and location of the proposed improvement and an estimate of its cost is sufficient, and the published notice prescribed by chapter 185 (Gen. St. 1913, Gen. St. Supp. 1917, § 1566 et seq.) referring to such plan and estimate constitutes due process of law.

The estimate was sufficiently detailed, and the probable cost of engineering, engineering equipment, and contingent expenses was properly included. Fred W. Reed, of Minneapolis, for appellants.

James D. Shearer, of Minneapolis, for respondent.

LEES, C.

Appeals from an order of the district court of Hennepin county confirming the report of commissioners appointed to reassess appellant's property in proceedings for the improvement of certain parks and parkways in the city of Minneapolis.

The proceeding was instituted in October, 1919, by the adoption by the park board of a resolution pursuant to the provisions of chapter 185, Laws 1911, as amended (Gen. St. 1913, Gen. St. Supp. 1917, § 1566 et seq.) commonly known as the Elwell Law. An estimate of the cost of the improvements and blueprint drawings showing their location and general nature were prepared, presented to the board, and approved and adopted. The estimated cost of the project was $937,443.87. The board resolved to assess two-thirds thereof upon lands specially benefited thereby, and appointed commissioners to ascertain the benefits and make the assessment. The remaining one-third of the cost was to be paid by general taxation. The commissioners determined and reported that the total benefits exceeded $627,500, and spread an assessment for that amount upon the lots they deemed benefited. The appellants, who are owners of some of the lots, filed objections to the assessment, but it was confirmed. On appeal to the district court, the proceedings were confirmed, save as to the amount of the assessments. Commissioners appointed to reassess the benefits to appellants' property reported that in no case did the original assessment exceed the special benefits, and accordingly they reassessed the same amounts, and their action was confirmed. These appeals were taken from the order of confirmation.

[1] 1. Respondent contends that the regularity and validity of a special assessment made pursuant to the Elwell Law can be reviewed here only upon a writ of certiorari. Under the law no appeal or writ of error lies to review the order of the district court confirming proceedings attacked for irregularity or want of jurisdiction. The district court must determine the validity of the proceedings in the first instance. The amount of damages awarded or benefits assessed, if objected to, must then be reappraised by commissioners appointed by the court, whose award or assessment is final unless set aside by the court. An appeal may be taken from the court's final order to the Supreme Court. We are of the opinion that on such an appeal the Legislature has not limited this court to a review of the award of damages and assessment of benefits. The question was not raised or considered in State v. District Court, 133 Minn. 221, 158 N. W. 240;Id. 136 Minn. 475, 162 N. W. 1087, where certiorari was resorted to in a condemnation proceedings under the Elwell Law.

[2] 2. In June, 1886, the city purchased from one Margaret Horan a tract of land north of the Lake of the Isles, which is now embraced in the parkway to be improved. A number of the appellants are the owners of lots which were platted upon then portion of Mrs. Horan's land which was not conveyed to the city. The consideration stated in the deed was $1. The deed contained the following clause:

‘This conveyance is made at the instance of the board of park commissioners of the city of Minneapolis for parkway purposes, and it is expressly understood and agreed that in addition to the consideration hereinbefore expressed, all other lands now owned by said grantors shall be forever exempt from all assessments for benefits for the improvement of said parkway under the act of the Legislature constituting said board as approved February 27, 1883 (chapter 281, Special Laws 1883), and amended February 24, 1885.’

It is contended that by virtue of this clause appellants' property is forever exempt from assessment for special benefits derived from the improvement of the land conveyed for a parkway. After the deed was executed the following provision was introduced into the state Constitution (section 1, art. 9):

‘The power of taxation shall never be surrendered, suspended or contracted away.’

It is settled that, save as restricted by constitutional provision, the state, through the Legislature, may limit its power of taxation by contract. It is also settled that such a contract will be strictly construed, and the courts will not indulge in a presumption that the power has been restricted unless the language of the contract is too clear to admit of doubt. State v. G. N. Ry. Co., 106 Minn. 303, 119 N. W. 202. The principle adopted by the constitutional provision we have quoted and recognized in the case cited had already been applied in State v. D. & I. R. R. Co., 77 Minn. 433, 80 N. W. 626, and has always been adhered to. Counsel for appellants asserts that it applies only to taxation for general purposes. There are recognized distinctions between general taxes and special assessments. Washburn, etc., v. State, 73 Minn. 343, 76 N. W. 204;City of St. Paul v. Oakland Cem., 134 Minn. 441, 159 N. W. 962;State v. Minn. Tax Com., 137 Minn. 37, 162 N. W. 686. Nevertheless, when the claim is made that private property has been freed from special assessments for all time, the language of the contract under which the exemption is claimed should be clear and unequivocal to justify a court in recognizing the claim. When the deed in question was executed the statute (section 5) to which it refers contained this provision:

‘In case of the purchase of lands for any such parks or parkways, or of any part thereof, it shall be competent for said board of park commissioners to agree with the vendor or vendors of the land so purchased upon a price therefor which may in addition to the purchase price of such land include exemption from an assessment for benefits upon any remaining contiguous or adjacent lands owned by such vendor or vendors, and in that case such remaining lands shall be freed from any liability to assessment and contribution for benefits to be assessed upon lands as in this act provided.’

The statute has been upheld in State v. Dist. Ct. Hennepin County, 33 Minn. 235, 22 N. W. 625. As amended, it was applied in State v. District Court, 83 Minn. 170, 86 N. W. 15. So the only question we have here relates to the proper construction of the deed. We are led to the conclusion that the exemption granted was limited to an assessment which might properly be made by virtue of the act mentioned in the deed. Nothing more was authorized by the act than an assessment of the amount required for the purchase or condemnation of the land selected for a park or parkway. The assessment might be levied as soon as the park board ascertained that amount with reasonable certainty. No assessment for the improvement of the land was authorized. Nevertheless the deed purports to exempt all the grantor's land from such assessments. Presumably the parties were mindful of the statute when they made their agreement. Its language fairly indicates that when land was purchased the procedure should be as follows: The park board should first agree with the landowner upon the purchase price, and then, if part of the price was to be paid in an exemption of the owner's remaining contiguous land from assessment, the amount so to be paid should be agreed...