Everington v. Board of Park Commissioners

• Decision Date: 15 November 1912
• Docket Number: Nos. 17,680 - (41).,s. 17,680 - (41).
• Citation: 119 Minn. 334
• Parties: JAMES EVERINGTON and Others v. BOARD OF PARK COMMISSIONERS OF CITY OF MINNEAPOLIS.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

Page 334

119 Minn. 334

JAMES EVERINGTON and Others v. BOARD OF PARK COMMISSIONERS OF CITY OF MINNEAPOLIS.¹

Nos. 17,680 - (41).

Supreme Court of Minnesota.

November 15, 1912.

In proceedings under Sp. Laws 1889, p. 567, c. 30, § 4, to assess the special benefit from the purchase of certain lands in the city of Minneapolis for park purposes, the park assessors filed their report in the district court for Hennepin county and application was made to the court for the confirmation of the same. James Everington, and other landowners whose property was assessed, objected to the

confirmation of the assessment. The proceedings in the district court are narrated in the opinion and were before Waite, J., who confirmed the assessment. From the order overruling the objections and confirming the report of the assessors and from a subsequent order denying objectors' motion to make findings of fact and conclusions of law, and to vacate the prior order and grant a new trial, they appealed. Affirmed.

George H. Selover, for appellants.

C. J. Rockwood, for respondents.

BUNN, J.

Proceedings under section 4, chapter 30, page 567, Sp. Laws 1889, to assess the cost of lands acquired for park purposes in Minneapolis upon lands specially benefited thereby. Objections were filed and the matter heard before the district court for Hennepin county on the application to confirm the assessment. The trial court granted the application. Objectors appealed from the order confirming the assessment, and also from a subsequent order denying the motion of objectors to vacate the prior order and grant a new trial.

The first question is whether either order is appealable. We hold that the second order should be construed as one denying a new trial and that it is appealable.

The case on the merits presents serious and difficult questions, to the proper understanding and decision of which a rather full statement of facts is necessary.

The land acquired for park purposes was a tract in the sixth and eleventh wards of Minneapolis, bounded on the north-east by the Mississippi river. The board of park commissioners determined that seventy per cent of the amount required for the purchase of this tract, which was $49,400, should be assessed upon and collected from the land specially benefited by the establishment of the park. The board then petitioned the district court for the appointment of park assessors. Notice of this application was published as required by the law. No appearance was made in opposition to the petition, and the court appointed three assessors to determine the assessment district and make the assessment. The assessors so appointed qualified, made and caused to be published notice of the time and place when they would meet for the purpose of making such assessment, and that "all parties interested may appear before said assessors and be heard touching any matter connected with the assessment." This notice was not personally served upon any of the interested property owners, and did not contain any description of the assessment district, its location or extent, but did contain a description of the property taken for the park. It does not appear that appellants or any interested persons appeared before the assessors at their meeting. The assessors fixed the boundaries of the assessment district, made the assessment and filed their report to the district court. This report described the limits of the assessment district, named the amount assessed against each lot or parcel of land included in the district, and the owner thereof. Notice of the application to confirm the assessment was given as required by the law. In fact it is conceded that each step in the proceedings, up to this time, was strictly in accordance with the provisions of the statute under which the assessment was made. The objectors appeared and opposed the confirmation; the objections filed by them, as far as they are material here, may be summarized thus:

The assessment of any property on the east side of the Mississippi for the acquisition of a park on the west side of the river is "unjust, and unfair and inequitable." No special benefits have accrued or will accrue to said property that would not have accrued to the whole city. In brief, the objections fairly raised the question whether the assessors proceeded upon "erroneous principles" in assessing any property on the east side of the river.

The order recites that, after granting leave to the several objectors to file their objections (the time fixed by law having expired) "Mr. Selover applied for leave to introduce oral testimony in support of the objections, which application the court denied, (the objectors duly excepting) and directed that the hearing be upon affidavits, with leave to the objectors, however, to orally cross-examine the assessors, and to make further application for leave to orally examine other witnesses if this should be deemed necessary after the submission of affidavits." The court then ordered that objectors serve their affidavits upon the attorney for petitioner on or before September 25, 1911, and that further hearing be had on the objections September 26, upon such affidavits and such further affidavits as petitioners might then desire to submit. The matter was heard on the date fixed upon these affidavits, no oral evidence being taken. It is not shown that objectors applied again for permission to "orally examine other witnesses."

1. The question of greatest importance and difficulty is as to whether the park assessment procedure provided by the law, as followed in this case, constituted due process of law. It cannot be doubted that at some stage of the...