Freding v. City of Minneapolis, 27185.
| Decision Date | 05 April 1929 |
| Docket Number | No. 27185.,27185. |
| Parties | FREDING v. CITY OF MINNEAPOLIS et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Hennepin County; H. D. Dickinson, Judge.
Action by August Freding against the City of Minneapolis and others. From an order denying a motion for a temporary injunction and discharging a restraining order, plaintiff appeals. Affirmed.
Mart M. Monaghan, of Minneapolis, for appellant.
Neil M. Cronin, City Atty., and Wm. H. Morse, both of Minneapolis, for respondents.
Appeal from an order denying plaintiff's motion for a temporary injunction and discharging a restraining order.
Plaintiff is a resident, citizen, and taxpayer of the defendant city of Minneapolis, a municipal corporation of Minnesota, operating under a Home Rule Charter adopted in pursuance of article 4, § 36, of the State Constitution. The other defendants are the mayor, aldermen, and other named officers of the city. Plaintiff alleges ownership of certain described real estate abutting on University avenue in said city (the locus of the improvement hereinafter referred to), and instituted this action in his own behalf and for the benefit of others similarly situated. The action seeks to prevent the repaving of a designated portion of the avenue in question, the issuance and sale of bonds and the laying and collecting of special assessments therefor, or the paying of the expense of repaving or any part thereof out of the general funds of the city. A restraining order was issued but afterwards discharged, a temporary injunction having been refused. The complaint contained the necessary allegations, some of which were denied by the answer, some admitted, and others setting forth affirmative declarations by way of defense. There was no reply. The latter allegations referred to, in so far as material, must therefore be considered as admitted.
The grounds of attack are three in number: (1) The service connections with gas, water, and sewer have not been made as required by chapter 9, § 1, City Charter; (2) the action of the council in ordering brick pavement at a cost of $5.50 per square yard instead of resurfacing at 70 cents per square yard is arbitrary and unreasonable; (3) the Elwell Law and its amendments are unconstitutional and void, and therefore the whole street improvement proceeding is void. They will be considered in their order, first, however, referring to a limitation on the scope of the issues here involved.
The proceedings were instituted under the provisions contained in the so-called Elwell Law (chapter 185, Laws 1911, as amended), which acts were incorporated by reference into chapter 20 of the City Charter. There was a strict compliance with the terms of the charter. An appeal is allowed from the action of the city council in such proceedings, but none was taken. Plaintiff's right by appeal was exclusive except as to the claim of a want of power or jurisdiction of the city to make the improvement or assessment. Great Northern Ry. Co. v. City of Minneapolis, 142 Minn. 308, 172 N. W. 135; A. A. White Townsite Co. v. City of Moorhead, 120 Minn. 1, 138 N. W. 939; McKeen v. City of Minneapolis, 170 Minn. 124, 212 N. W. 202; Peterson v. City of Minneapolis, 172 Minn. 604, 216 N. W. 228; 4 Dunnell Minn. Dig. (2d Ed.) § 6889a.
1. Section 1, c. 9, of the City Charter provides: The part of University avenue here referred to is a business portion of the city. Under the situation here involved, and the object in view, we think the above-quoted provision is directory and not mandatory. It is not an integral part of the grant of power to pave streets. A contrary holding is not required. The use of the word "shall" is not decisive. The purpose must have been to prevent, as far as...
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