In re Hull

• Decision Date: 19 June 1925
• Docket Number: No. 23730.,23730.
• Citation: 204 N.W. 534,163 Minn. 439
• Parties: In re HULL et al.
• Court: Minnesota Supreme Court

204 N.W. 534

163 Minn. 439

In re HULL et al.

No. 23730.

Supreme Court of Minnesota.

June 19, 1925.

Appeal from District Court, St. Louis County; William Cant, Judge.

From a judgment granting application of Morton Denison Hull and others for vacation of portion of plot of town of Hibbing, and from an order denying motion of R. C. Breen and others to set it aside and dismiss proceeding, R. C. Breen and others appeal. Affirmed.

H. V. Mercer, of Minneapolis, C. G. Anderson, Gannon, Strizich & Farnand, and Thomas Silliman, all of Hibbing, and George Spear and Fryberger, Fulton, Hoshour & Ziesmer, all of Duluth, for appellants.

Davis, Severance & Morgan, of St. Paul, Frank D. Adams, Elmer F. Blu, and Crassweller & Crassweller, all of Duluth, and D. T. Collins, of Hibbing, for respondents.

LEES, C.

The owners of the land embraced in the plat of the town site of the village of Hibbing, commonly known as the north 40, applied to the district court of St. Louis county for the vacation of the plat. The application was granted and property owners in Pillsbury and Southern additions, which lie south of and adjacent to the plat vacated, have appealed from the judgment, and from an order denying their motion to set it aside, and dismiss the proceeding for want of jurisdiction. For a statement of many of the pertinent facts, we refer to Reed v. Village of Hibbing, 150 Minn. 130, 184 N. W. 842.

The briefs cover nearly 600 pages and the discussion has taken a wide range. Out of it all, three points emerge, which go to the heart of the case, viz: Did the court have jurisdiction to act upon the application? Was the court justified in granting the application? Can the appellants recover damages?

1. The statute (section 6863, G. S. 1913) authorizes the district court to vacate all or any part of a plat upon the application of an owner of land included in the plat, and to adjudge the title to all streets, alleys, and public grounds to be in the persons entitled thereto, but the court may not vacate a street or alley dedicated to the public use in or by the plat of any city, town, or village organized under a charter or special law which provides a method or procedure for the vacation of streets and public grounds by the municipal authorities.

The trial court found that Hibbing was not organized under a charter or special law containing such a provision and held that the court had jurisdiction. The question was raised at four different stages of the proceeding. On each occasion the court ruled against appellants, and these rulings are assigned as error.

Hibbing was organized as a village in 1893 under chapter 145, G. L. 1885, which provides, in section 29, that—

"Upon the petition in writing of all the owners of lots or land on any street or alley in such village, and not otherwise, the board of trustees may discontinue such street or alley or any part thereof."

Appellants contend that chapter 145 is the charter of the village and, since it provides for the discontinuance of streets by the village authorities, the court was without jurisdiction.

The court's jurisdiction was first limited by chapter 503, Laws 1909. From an early date jurisdiction had been conferred in broad terms (sections 12, 13, 14, c. 29, Stat. 1866); and in 1904, in Townsend v. Underwood's Add., 91 Minn. 242, 97 N. W. 977, it had been held that the power to vacate a plat included the power to vacate the streets within the plat.

The 1909 act restricted the power, but did not entirely withdraw it from the court. If appellants' counsel correctly construe the act, not much is left of the power, for few special acts or home rule charters do not contain some provision for the vacation of streets by the municipal authorities. In support of their construction, they cite Balch v. St. Anthony Park West, 129 Minn. 305, 152 N. W. 643. That case holds that the 1909 act withdrew the vacation of streets from the jurisdiction of the district court in municipalities coming within the scope of the act; that the charter of St. Paul, a home rule charter, provided a method for the vacation of streets by the city authorities hence the court could not vacate a street included in the plat vacated; but the meaning of the word "charter," as used in the act, was not considered.

The argument that every municipal corporation which has a home rule charter is organized under a special law goes too far. In a sense such a charter is a special law applicable to the municipality adopting it, but if "charter" and "special law" have the same meaning, the Legislature spoke at random, an inference not to be lightly drawn. If every home rule charter is a special law, and every general law under which a municipal corporation is organized is the charter of the municipality, the legislative intent would have been better expressed by omitting the words "charter or special." The first word is often used to signify the entire body of existing laws which provide for the organization and government of a particular city or village, but, since the adoption of section 36, art. 4, of the state Constitution, the word is commonly used as a synonym for "home rule charter," and, in construing the 1909 act, the Attorney General gave it as his opinion that this is what the word referred to. Opinion No. 137, given in 1920 to the city attorney of Thief River Falls.

The district court came to the conclusion that this was the correct construction of the act for reasons tersely stated by Judge Dancer. He called attention to the fact that municipalities in this state have been organized in one of three ways: (1) By the adoption of home rule charters; (2) under special laws; and (3) under general laws. He thought the Legislature intended the 1909 act to apply to municipal corporations organized in either the first or second way, and intended to leave the original statute in effect as to those organized in the third way, because any other construction would make the words "special law" superfluous and meaningless. Referring to section 29, c. 145, he said it did not permit the village authorities to vacate a street unless every owner of abutting property signed the petition, hence, if one property owner arbitrarily refused to sign, the hands of the authorities were tied and there could be no vacation, however great the need might be, a result which could hardly have been intended by the Legislature. We think the district court interpreted the statute correctly, and hold that the court had jurisdiction.

2. The next contention is that sec. 6863 is invalid because it delegates legislative power to the courts in contravention of article 3 of the state Constitution. If this be true, a belated discovery has been made. The statute has been in existence as long as the state. Many plats have been vacated under it. Valuable buildings have been erected on land once occupied by streets or alleys. It would be an unexpected blow to the fancied security of titles, if, after all these years, this court should hold that the statute is unconstitutional and all proceedings under it void. So far as we know, no question as to its constitutionality has been raised in previous cases, and we might brush aside the contention by saying that to sustain it would disturb too many titles, but, it is made with such earnestness that we will inquire into its merits.

The courts have frequently considered the constitutional provision for the division of the powers of the government into three distinct departments. Gradually the necessity of avoiding a narrow construction has been perceived, for it has proved to be impractical to view the provision from the standpoint of a doctrinaire. This and much more is well put in State v. Crosby, 92 Minn. 176, 99 N. W. 636, and in State v. Bates, 96 Minn. 110, 104 N. W. 709, 113 Am. St. Rep. 612. This court has upheld the statute authorizing the district court to establish judicial highways, In re Highway of Fillmore and Houston Counties, 158 Minn. 302, 197 N. W. 741; Alexander v. McInnis, 129 Minn. 165, 151 N. W. 899; the judicial drainage statute, State v. Crosby, supra; and the so-called Flood Control Act, which vests jurisdiction in the district court, State v. Flaherty, 140 Minn. 19, 167 N. W. 122. Section 6863 is no more open to attack upon constitutional grounds than the statutes considered in the cases cited.

In several states jurisdiction to vacate public highways is directly conferred upon the courts. Sometimes the jurisdiction is exclusive and sometimes concurrent with the jurisdiction of local boards, but the constitutionality of such statutes seems not to have been questioned. Swanson Street, 163 Pa. 323, 30 A. 207; Detroit Real Estate Inv. Co. v. Wayne, 137 Mich. 108, 100 N. W. 271; Hughes v. Beggs, 114 Ind. 427, 16 N. E. 817; Bradbury v. Walton, 94 Ky. 163, 21 S. W. 869; In re Big Hollow Road, 111 Mo. 326, 19 S. W. 947; Latimer v. Tillamook County, 22 Or. 291, 29 P. 734.

The primary object of section 6863 is to provide for the vacation of plats and the determination of the title to the land in the streets. In Townsend v. Underwood's Add., supra, it was said that authority to do this could not be confered on a city council. This is self-evident, for only a court can adjudge the title to the land to be in a certain person.

In re Hayes, 139 Wis. 163, 120 N. W. 834, deals with a statute substantially the same as ours. The statute was examined and a distinction drawn between a proceeding to vacate a plat and one to vacate a highway, a distinction suggested in Balch v. St. Anthony Park West, supra.

It would be a technical application of article 3 to hold that the Legislature must divide jurisdiction between the courts and the municipal authorities in matters such as this by limiting the power of the court to the vacation of the plat and the adjudication of the title to the streets, and that of the local authorities to the vacation of the streets.

Appellants greatly rely on State v....