Improvement of Lake of the Isles Park [Murray]
| Decision Date | 21 April 1922 |
| Docket Number | No. 22,717.,22,717. |
| Citation | 152 Minn. 29 |
| Parties | IN RE IMPROVEMENT OF LAKE OF THE ISLES PARK, ETC. FRANK C. MURRAY, JULIUS J. OSTLUND AND OTHERS, APPELLANTS.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
to reassess the benefits. From the final order, Jelley, J., confirming the report of the reassessment commissioners, Frank C. Murray, Alfred A. Beltz and others appealed. Affirmed.
Fred W. Reed, for appellants.
James D. Shearer, for respondent.
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, p. 229, Laws 1911, as amended, commonly known as the Elwell Law. An estimate of the cost of the improvements and blue print 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. 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 F. J. D. 133 Minn. 221, 158 N. W. 240, 136 Minn. 475, 162 N. W. 1087, where certiorari was resorted to in a condemnation proceedings under the Elwell Law.
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 the portion of Mrs. Horan's land which was not conveyed to the city. The consideration stated in the deed was one dollar. The deed contained the following clause:
"This conveyance made at the instance of the Board of Park Commissioners of the city of Minneapolis for parkway purposes, 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 assessments for benefits for the improvement of said parkway under the act of the Legislature constituting said board as approved February 27th, 1883, and amended February 24th, 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 provisions, 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. Great Northern 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. Duluth & 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 M. O. A. v. State, 73 Minn. 343, 76 N. W. 204; City of St. Paul v. Oakland Cemetery Assn. 134 Minn. 441, 159 N. W. 962; State v. Minnesota 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 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 free from any liability to assessment and contribution for benefits to be assessed upon lands as in this act provided." [Sp. Laws 1883, p. 410, c. 281.]
The statute has been upheld in State v. District Court of Hennepin County, 33 Minn. 235, 22 N. W. 625. As amended, it was applied in State v. District Court of F. J. D. 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 condmenation 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 upon. The board was not empowered to grant an unlimited exemption or one indefinite in amount. It was restricted to granting one representing the difference between the entire purchase price and the portion paid in cash. After the Minneapolis Park acts were consolidated in chapter 30, p. 560, Sp. Laws 1889, there could be no doubt that this was the intention of the legislature. Whatever doubts there may have been theretofore were due solely to ambiguities of expression in the earlier acts.
The statute and the deed must be read together. The word "improvement" as used in the latter was inept. Followed, as it is, by the words "under the act * * * approved February 27th, 1883," it is deprived of its ordinary significance and must be taken to mean assessments for benefits which might be levied under that act, that is, only such as resulted from the acquisition of land for parks and parkways. This is not such an assessment. It is one for benefits which could not have been assessed at all by virtue of the act referred to in the deed, and hence it is not covered by the exemption clause above set out. Exemptions from assessments is the subject of a note to Giles v. Olympia, 16 A. L. R. 499, which we have found helpful.
We pass without comment respondent's assertion that, if the deed is given the effect claimed for it by the appellants, the contract the city attempted to make with Mrs. Horan was ultra vires, and appellants' counter assertion that, since the city acquired title solely by virtue of the deed, it is estopped from questioning the authority of the park board to enter into the contract. The construction of the statute and the deed which we have adopted renders it unnecessary to consider these questions.
3. The state Constitution, § 1, art. 9, empowers the legislature to authorize municipal corporations to levy and collect assessments for local improvements upon property benefited thereby without...
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