Davis v. Board of County Commrs.

• Decision Date: 26 June 1896
• Docket Number: Nos. 10,068 - (264).,s. 10,068 - (264).
• Citation: 65 Minn. 310
• Parties: FRED DAVIS v. BOARD OF COUNTY COMMISSIONERS OF ST. LOUIS COUNTY.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

65 Minn. 310

FRED DAVIS v. BOARD OF COUNTY COMMISSIONERS OF ST. LOUIS COUNTY.¹

Nos. 10,068 - (264).

Supreme Court of Minnesota.

June 26, 1896.

Appeal by plaintiff from an order of the district court for St. Louis county, Ensign and Morris, JJ., sustaining a demurrer to the complaint. Affirmed.

O. W. Baldwin, for appellant.

Phelps, Towne & Harris, for respondent.

START, C. J.

This is an action by the plaintiff, who is county surveyor of the defendant county, to recover from the defendant the sum of $108 for establishing the section corners of a certain section of land in the county under the provisions of chapter 249, Laws 1895. The defendant demurred to the complaint, and the plaintiff appeals from an order sustaining the demurrer. The principal question for our decision is the constitutionality of the statute under which the services in question were rendered. The material provisions of the statute are these:

"Section 1. Whenever a majority of the resident land owners, in any government section in this state, wish the corners of the said section permanently marked, and the sub-divisional lines definitely located and the notes of the same duly recorded in the record books of the surveyor's office of the county; they shall, after giving at least ten (10) days' notice to each of the resident land owners of such intention, notify the county surveyor that they wish to have the section subdivided, the corners permanently marked and the notes of the same recorded.

"Sec. 2. The surveyor shall at his earliest convenience set a time when he will make such survey, and at the appointed time he, or one of his deputies shall appear and proceed to make such survey, according to the laws now made and provided for the subdivision of sections, provided that all the section corners of said section can be proven."

"Sec. 7. The cost of the survey shall be divided and paid in the following manner: The surveyor shall keep a careful account of the work done on the several parts of the section, and of the help furnished, and at the conclusion of the work apportion the costs in as equitable a manner as possible, for the relocation of a section corner to the four (4) sections adjacent and for the subdivision of the section to each subdivision, according to the costs and the benefits received.

"Sec. 8. The surveyor shall file with the county auditor a certificate of the costs of making such survey and the apportionment to each section and sub-divisional parts of the section, who shall assess the same against the property as other taxes, and a bill for the whole amount due the surveyor shall be audited and paid by the commissioners out of the general funds of the county."

It is manifest that the purpose of this statute is to enable a resident of any portion of a section of land to secure the location and marking of the section corners, and to compel all other owners of the four sections adjacent to contribute equitably to the expenses thereof, by apportioning the amount of them to, and assessing it upon the land of, each. This is the single purpose of the act, and if its provisions to secure such result are unconstitutional the whole statute fails; for, clearly, the legislature would not have provided for the advancement of such expenses from the county treasury if it had understood that the provisions for the apportionment of the expenses to the land benefited, and for indemnity to the county for such advancement, were void. O'Brien v. Krenz, 36 Minn. 136, 30 N. W. 458; Meyer v. Berlandi, 39 Minn. 438, 40 N. W. 513.

1. It is claimed by the plaintiff that the validity of the statute may be sustained on the ground that it is an exercise of the power of taxation. Clearly, the claim is untenable. The exhaustive brief of counsel for the plaintiff in support of his proposition seems to be based upon a misconception of the provisions of the statute.

The purpose of the statute is, as we have suggested, private; that is, to provide the legal machinery whereby the majority of the owners of a section of land may compel, at their pleasure, other owners in the same and adjacent sections to contribute to the expenses of locating the section corners. This is a purpose for which taxes cannot be levied. The act does not, as claimed by plaintiff, provide for taxing districts, and for a uniform tax based on a cash valuation of the land in each section. The expense of locating the corners is to be apportioned to the adjacent sections, not on the basis of their value, but on the basis of benefits received. This, if anything, is an attempted local assessment for a local improvement. That this is so, in its last analysis, no matter on what basis the county auditor divides and assigns the total burden resting on a section to the several subdivisions thereof, becomes apparent in cases where one man owns the whole of one of the adjacent sections which is assessed as one parcel. This statute does not provide for a local assessment. Only municipal corporations can be authorized to levy assessments for local improvements. State Const. art. 9, § 1; State v. District Court of Hennepin Co., 33 Minn. 235, 22 N. W. 625. But, as was incisively said by the learned trial judges:

"In the act in question the power to levy the tax or assessment is not delegated to any municipal corporation. Neither county, city, nor town has any duty or power in determining the necessity of the tax, or that it is for a public purpose. The legislature does not determine that a public purpose or necessity demands such tax. * * * The power to tax a man's land rests upon the mere wish of two or more resident landowners, who need not even be citizens of the state. No necessity need exist for the action. None need be pretended."

2. The main reliance of the plaintiff in support of his claim that this act is constitutional is that it is within the police power of the state, and a proper exercise thereof by the legislature. We are of the opinion that laws regulating...