Guilder v. Town of Otsego

• Decision Date: 01 January 1873
• Citation: 20 Minn. 59
• Parties: A. R. GUILDER v. TOWN OF OTSEGO.
• Court: Minnesota Supreme Court

20 Minn. 59

A. R. GUILDERv.

TOWN OF OTSEGO.

Supreme Court of Minnesota.

Appeal by plaintiff from an order of the district court, Hennepin county, sustaining a demurrer to the complaint.

Cooley & Lowry, for appellant, contended —

I. Atwater, for respondent, contended —

BERRY, J.

Chapter 100, Sp. Laws 1870, appoints three persons, residents of Hennepin and Wright counties, bridge commissioners, "for the purpose of contracting for and superintending the rebuilding of the bridge across Crow river, near its mouth, between the town of Dayton, in the county of Hennepin, and the town of Otsego, in the county of Wright." The commissioners are to contract for and generally superintend the construction of the bridge, the total cost of which is not to exceed $3,000. The contract is to be in writing, and copies of the same are to be filed with the auditors of said counties, and the town clerks of said towns, and various minor directions are given to regulate and govern the action of the commissioners. The law further provides that said bridge when completed shall be examined by said commissioners, and if completed in accordance with the terms of the contract or contracts under which the same may be built, they shall accept it by their written acceptance, a copy of which shall be filed with the county auditors and town clerks aforesaid, together with a detailed statement of the total cost of the construction.

Section 4 enacts that three-tenths of the cost of the bridge "shall be a charge upon and be paid by" each of the counties of Hennepin and Wright respectively, and two-tenths "shall be a charge upon and be paid by" each of the towns of Dayton and Otsego respectively. By section 6 it is made "the duty of the town supervisors of the said towns of Dayton and Otsego, upon proof furnished of the completion and acceptance of said bridge as herein provided, to cause to be issued upon the town treasurer of their respective towns, the orders of their towns in favor of the proper person for the amount due from their respective towns on said bridge according to the provisions of this act, and the town treasurer of the proper town shall pay said orders out of any money in the town treasury or the first that shall come into the treasury belonging to the road and bridge fund not otherwise appropriated." Section 5 contains similar provisions in reference to the payment of the respective proportions of the counties of Hennepin and Wright.

The complaint alleges that the commissioners made a contract in writing with plaintiff for the construction of the bridge for $2,800; that copies of the contract were filed; that he constructed and completed the bridge in accordance with the terms of the contract; that after its completion the commissioners examined the bridge and accepted the same in writing; and that copies of the acceptance, with detailed statements of the cost of the bridge, were filed, all in compliance with the provisions of the act aforesaid. It is further alleged that the towns and counties aforesaid immediately took possession of and entered upon the use of the bridge, and have ever since continued to use, occupy, and exercise full authority and control over the same. The complaint further shows that the due proportion to be paid by the defendant — the town of Otsego — on account of the construction of the bridge, was $560, (being the two-tenths aforesaid;) that due proof of the completion and acceptance of the same, as provided for by said act, was furnished to the supervisors of said town of Otsego and that plaintiff has since repeatedly demanded of said supervisors that they issue to him the town order of said town for the sum of $560, but the said supervisors ever have, and still do, refuse to issue said order or pay said amount. This action is brought against the town of Otsego to recover said sum and interest. A general demurrer to the complaint was interposed, defendant insisting that the special act was unconstitutional, and if not, that plaintiff's sole remedy was by mandamus. The demurrer was sustained on the latter ground.

In support of the order sustaining the demurrer it is argued here that the special act under which plaintiff claims violates sections 1, 2, 3, 4, art. 9, and section 5, art. 11, of our state constitution. As to sections 1, 2, 3, 4, art. 9, the claim is that the act in its effect involves taxes not "equal," and which are to be levied without any regard to "cash valuation" of property. The middle of the channel of Crow river is the boundary between Hennepin and Wright counties, and between the towns of Otsego and Dayton, as appears by sections 25 and 74, c. 8, Gen. St., and by the map, the complaint, and the act aforesaid. In accordance with the practice usual in such cases, the bridge (unless built by the state) would be one, the burden of constructing which would fall upon the counties of Hennepin and Wright, or upon the towns of Otsego and Dayton, or upon these towns and counties together, each town or county, as the case might be, constructing or contributing to construct the portion of such bridge which would fall...