In re Piedmont Ave. East In City of Duluth
| Decision Date | 28 December 1894 |
| Docket Number | 9027,9028 |
| Citation | 61 N.W. 678,59 Minn. 522 |
| Parties | In re Piedmont Ave. East in the City of Duluth. In re West Superior Street in the City of Duluth |
| Court | Minnesota Supreme Court |
Argued November 9, 1894
Appeal by J. B. Scovill, owner of property assessed for benefits conferred by improvement of Piedmont avenue, Duluth, from an order of the District Court of St. Louis County, J. D Ensign, J., made March 5, 1894, confirming a reassessment of such benefits.
Appeal also by Joseph W. Reynolds, owner of property assessed for benefits conferred by improvement of West Superior street Duluth, from an order of the same court made the same day confirming a reassessment of such benefits.
On June 13, 1892, the Board of Public Works of the city of Duluth resolved to grade and improve Piedmont Avenue East in that city at an estimated expense of $ 110,000. They assessed the greater portion of this sum upon property benefited by the improvement. The assessment was on August 29, 1892, revised and confirmed by the District Court of St. Louis County. Certain owners of property assessed filed their relation and obtained from this court a writ of certiorari. A return was made and argument heard and this court on December 16, 1892 held the assessment invalid. State ex rel. v. Judges of District Court, 51 Minn. 539. By Laws 1893, ch. 206 approved March 29, 1893, cities were authorized to make reassessments for local improvements. Under this act the city of Duluth made a statement of the facts and filed it in the office of the clerk of the District Court of St. Louis county and caused notice to be given by publication in the official newspaper that on July 29, 1893, it would move the court for the appointment of three disinterested residents as appraisers to determine and assess the benefits accruing to local property by reason of the improvement. On that day such appraisers were appointed. They gave notice and met August 9, 1893, and made the assessment and their report was filed in the clerk's office November 23, 1893. Notice was then given that the report had been filed and that the city would on December 9, 1893, apply to the District Court for an order confirming it. J. B. Scovill, the appellant, and others filed objections, each party showing that he owned lots assessed and stating his exceptions to the report. Testimony was submitted and arguments made and the District Court on March 5, 1894, made an order by which the report and assessment were in all things fully ratified and confirmed and the objections thereto overruled. From this order Scovill appeals.
Prior to March 29, 1893, the city of Duluth took measures also to improve West Superior Street and an assessment of benefits exceeding $ 98,000 was made on adjacent real estate, including that of Joseph W. Reynolds. On May 4, 1893, the assessment was adjudged invalid and set aside by the District Court of St. Louis county. Under Laws 1893, ch. 206, the city took proceedings to reassess the benefits and proceedings similar to those above stated were had. On March 5, 1894, an order was made confirming the assessment and overruling objections. From this order Reynolds appeals.
Order affirmed.
M. Douglas, and John A. Keyes, for both appellants.
Laws 1893, ch. 206, under which these reassessments were made, is in contravention of the Constitution, Art. 4, § 27 which provides that no law shall embrace more than one subject, which shall be expressed in its title. The objection is that the statute embraces two distinct subjects and both are expressed in its title, and it is therefore void for duplicity. Its title is, "An act to authorize reassessments for local improvements by cities, and to legalize certain of such assessments." Of these two provisions, one authorizes a reassessment, and the other legalizes former assessments. There are no cases in this state touching upon this particular defect. Skinner v. Wilhelm, 63 Mich. 568; People ex rel. v. Nelson, 133 Ill. 565; Brown v. State, 79 Ga. 324; Tingue v. Village of Port Chester, 101 N.Y. 301.
Constitution, Art. 9, § 1, gives the legislature power to authorize a municipal corporation to levy assessments for local improvements. It is a proviso to the section and is subject to strict construction. Municipal corporations only can receive the right to levy assessments for local improvements. The legislature cannot give the right to any person or to any other corporation. This act does not vest the power to levy the assessment either in the municipal corporation or in any board connected with or made a part of it by law. It vests the power of making the levy in the proceeding for reassessment in three assessors and in the District Court. The three assessors are appointed by the court. They determine the amount that is to be reassessed. As a matter of fact there is no specific direction in the act that they shall levy an assessment at all, but they are directed to make an assessment roll and return it to the District Court, and the District Court without being bound by anything done by the assessors shall review and confirm it or send it back to other assessors, as the court may see fit. This question has never been adjudged in this state. It was raised in State ex rel. v. District Court, 33 Minn. 235, but was not decided.
All power of assessment and reassessment is by Duluth charter vested in the Board of Public Works. Sp. Laws 1887, ch. 2, subch. 4, § 10. General acts do not repeal the provisions of charters granted to municipal and other corporations or special acts passed for their benefit, although conflicting with such general provisions. Wood v. Election Com'rs, 58 Cal. 561; Harrisburg v. Sheck, 104 Pa. St. 53; Cumberland v. Magruder, 34 Md. 381; Burke v. Jeffries, 20 Ia. 145; Tierney v. Dodge, 9 Minn. 166.
Laws 1893, ch. 206, is special legislation and void under the Constitution, Art. 4, § 33, as amended in 1893. Everything relating to the disposition of the assessment roll, what shall be done with it, the officer into whose hands it shall come, where it shall be filled and how enforced, is left wholly undetermined and unprovided for. These matters are subject to as many different regulations as there are different cities and charters in the state. The very best argument that could possibly be made touching this point is that made by this court in its opinion in Alexander v. City of Duluth, 57 Minn. 47, and the cases there cited. Fitzgerald v. New Brunswick, 47 N. J. Law, 479; Commonwealth v. McCullough, 90 Va. 597.
Laws 1893, ch. 206, § 2, is prospective and not retrospective in its action. The words, "shall be set aside or pronounced invalid," mean in the future or after the passage of the act. The tense is future, denoting some future action, and not past action. Statutes of this kind are never retroactive but always prospective in their action, and the presumption is always against their having a retroactive effect. Endlich, Stat. § 271. Giles v. Giles, 22 Minn. 348.
This act was approved March 29, 1893. The assessment in Piedmont avenue case was pronounced invalid December 16, 1892. The act does not apply to it.
In the West Superior street case the record shows upon its face that the assessment was not legally and correctly made. The report of the appraisers states: There is no authority, either in the statute or constitution for any such procedure as apportioning the cost of the improvement, the assessors are directed to make their assessment against each piece and parcel of land deemed by them to be benefited by reason of said improvement. The assessors did not follow the law in this respect at all, but what they did actually do appears by their report to be something like this: They laid out an assessment district comprised within a certain territory, and having done that they then declared that that property was benefited to the extent of $ 91,092, and having done that, they then apportioned said amount upon said property by a mathematical method of division. This was clearly an illegal principle of assessment as appears on its face, and as such cannot stand. State ex rel. v. District Court, 29 Minn. 62; State ex rel. v. Commissioners, 38 N. J. Law, 190; State ex rel. v. Mayor, 40 N. J. Law, 485; Watkins v. Zwietusch, 47 Wis. 513; Johnson v. City of Milwaukee, 40 Wis. 315; Chamberlain v. City of Cleveland, 34 Ohio St. 551; State ex rel. v. District Court, 47 Minn. 406; State ex rel. v. District Court, 52 Minn. 283.
Page Morris, for respondent in both appeals.
Laws 1893, ch. 206, is not in contravention of the Constitution, Art. 4, § 27. It does not embrace two distinct subjects. The term "subject" as used in the constitution is to be given a broad and extended meaning, so as to allow the legislature full scope to include in one act all matters having a logical or natural connection. To constitute duplicity of subject an act must embrace two or more dissimilar and discordant subjects that by no fair intendment can be considered as having any legitimate connection with or relation to each other. Johnson v. Harrison, 47 Minn. 575; Auditor General v. Stiles, 83 Mich. 460; Feek v. Township Board, 82 Mich. 393; State ex rel. v. Newark, 34 N. J. Law, 236.
Nor is the act in contravention of the Constitution, Art. 9, § 1. It is modeled after the Minneapolis Park Act (Sp. Laws 1883, ch. 281) and if the assessment was valid under that act,...
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