M'Comb v. Bell

• Decision Date: 01 January 1858
• Citation: 2 Minn. 295
• Parties: J. W. McCOMB vs. EDWIN BELL.
• Court: Minnesota Supreme Court

2 Minn. 295

J. W. McCOMBvs.

EDWIN BELL.

Supreme Court of Minnesota.

Error to district court, Ramsey county.

The charter of the city of St. Paul, p. 30, ch. 7, § 6, Laws of 1854, provided that the cost of opening, grading, graveling, planking, or paving streets, should be chargeable to and payable by the lots fronting on such streets. Section 6 of the charter, as amended in 1856, provided that when the commissioners should determine to make any public improvement they should cause to be made an estimate of the whole expense thereof, and of the proportion to be assessed to each lot, which estimate should be filed with the city comptroller, for the inspection of the parties interested, and that they should thereupon enter into contract for the doing thereof. Section 10 of the charter, as amended in 1856, provided that after the completion of any contract for work chargeable to lots, the commissioners should give to the contractor a certificate stating the amount of work done by the contractor, the nature thereof, and the description of the lot or parcel of land upon which the same was chargeable, and that if the amount thereof should not be paid before the time of making out the annual assessment roll, the same should be assessed upon the lots or parcels of land respectively, and collected for the use and benefit of the holder of such certificate, as other taxes on real estate were collected by virtue of the act. In 1857 this section was amended by adding to it a clause that such certificates might be collected by civil action, at the suit of a bona fide holder of the certificate against the owner or owners of said lots or lands.

This suit was brought upon such certificates against the defendant, as owner of lots to which it was chargeable. The complaint, without alleging any previous acts of the commissioners, alleges the letting of a contract to plaintiff to grade St. Anthony street, the performance of the contract, the issuance of the certificates and their non-payment, and the ownership of defendant.

A demurrer to the complaint was sustained, and judgment entered for the defendant.

Points and authorities for plaintiff in error: —

1. This action rests upon the validity of certain provisions of the act of the legislative assembly of the late territory of Minnesota, incorporating the city of St. Paul, approved March 4, 1854, and acts amendatory thereof. Laws 1854, 13-42; Laws 1855, 141, § 2; Laws 1856, 32-6; Laws 1857, (Ex. Sess.) 72. See especially "City Improvements," ch. 7, p. 29, and amendments thereof; Laws 1856, ch. 27, §§ 15-17, p. 35; and also Ex. Sess. 1857, p. 72.

2. First, the legislature had the right to authorize and provide for the grading of the streets of the city of St. Paul. No authority and no reasons need to be added in support of this proposition, nor is it understood that this proposition is controverted. Second, the legislature had the right to assess the expense and cost of the grading of streets in St. Paul, exclusively upon the class of inhabitants whose lands were benefited by the work. Third, private property may constitutionally be taken for public use in two modes, viz.: by taxation, and by right of eminent domain. Fourth, taxation exacts money or services from individuals as their respective shares of contribution to the public burthen; by right of eminent domain, private property is taken for public use as so much beyond the owner's share of contribution to the public burthen, and for this reason special compensation is awarded. Fifth, the right exercised in the present case is not that of eminent domain, but that of taxation. It will not be disputed that the grading in question is a public work, the cost of which might rightfully have been raised by general taxation upon all the taxable inhabitants of St. Paul, if the legislature had so provided. Instead of doing so, however, the legislature chose, in the exercise of its just and legitimate discretion, to shift the burthen of taxation and impose it exclusively upon the part or class of the taxable inhabitants whose lands were benefited by the work, or whose lands the legislature deemed to be thereby benefited.

3. It has been customary in the states of this Union and in England to tax for local works, and to assess and apportion the tax upon the lands affected thereby. People v. Mayor, &c., of Brooklyn, 4 N. Y. 438, and authorities there cited.

4. The power of the legislature to make a tax bear a lien upon real estate, it is presumed, is not drawn in question by the issue made in the present case. It is, moreover, too well established to need the citation of authorities in its support. See generally in support of the foregoing propositions the People v. Mayor, &c., of Brooklyn, 4 N. Y. 420, 442; also points of counsel in the same case, "Appendix," 4 N. Y. 607, 615.

5. Assuming the competency of the legislature to authorize the work and the assessment and apportionment therefor, in the case under consideration, its power to authorize and provide for the payment of these assessments to, and their collection by, the contractor or contractors doing the work, is but a necessary corrollary and a legitimate incident of the former exercise of power. No one will question the competency of the legislature to have granted to the city of St. Paul itself a personal action to enforce the collection of its taxes, or the particular tax in question. Legislatures usually provide much more summary remedies for the collection of taxes than that afforded by an ordinary civil action. If the legislature could have conferred on the city of Saint Paul the right of a civil action to collect the assessment in question, where is to be found the limitation or restraint upon its powers which could prevent it from giving such a right of action directly to the party to whom the assessment really belonged, and to whom it was made payable, and by whom it was collectible.

Points and authorities for defendant in error: —

The complaint does not state facts sufficient to constitute a cause of action, in that —

1. It is based upon a statute, so called, (Laws 1857, Ex. Sess. 72, § 1,) which was not passed by any legal

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

legislature. Organic Act, § 4; Rev. Stat. ch. 3, § 1; Organic Act, § 2.

2. The statute (so called) upon which the complaint is based is unconstitutional and null. Organic Act, § 6; Const. U. S. am'd'ts. to art. 5; 5 Barb. 209, and cases cited; 9 Wend. 244; 11 Wend. 154; 1 Barb. 286; 2 Kent's Com. §§ 331-2; 3 Barb. 275; 4 Hill, 147; 5 Dana, 28; 11 Johns. 77; 3 Wend. 263; 4 Hill, 76; 7 Hill, 9.

3. Admitting the constitutionality of the statute, the complaint does not show that the plaintiff has so complied with it as to have a right of action; (4 Sandf. 667; Striker v. Kelly, 2 Denio, 329;) in that — First, it does not show any notice to defendant whatever of the grading, or of the existence of the certificates prior to the commencement of this action. Laws 1854, 31, ch. 7, § 10; Laws 1856, 35, ch. 27, § 10; Laws 1857, Ex. Sess. 72, ch. 17, § 1; 6 Wend. 634; 2 Denio, 329; 3 Barb. 282. Second, it does not show that the contents of the certificates conformed to the law (so called). Laws 1854, 31, § 10; Laws 1856, 36, § 17; Laws 1857, Ex. Sess. 72, § 1. Third, it does not show the amount or value of the work done in front of defendant's lots. Laws 1854, 30, § 6, not amended. Fourth, it does not show the countersigning of the contract by comptroller, without which both contract and certificates are void. Laws 1856, 35, § 10.

4. The complaint in the action does not show that the amount claimed has gone into the assessment roll, which it must do before the action of this personal description can be maintained. See especially Ex. Sess. Laws 1857, 72, § 1. The complaint shows that it has not gone into the assessment roll. See complaint, for the time of issuing certificates; summons, for time of commencement of action; Rev. Stat. 76, for time of making out assessment roll.

5. The amount of interest claimed — 30 per cent. — is illegal, the claim being based upon no contract to which defendant is party or privy.

Lorenzo Allis, for plaintiff in error.

Sanborn, French & Lund, for defendant in error.

FLANDRAU, J.

The grant of power to the legislature by the sixth section of the Organic Act of Minnesota, conferred upon that body as ample powers over all subjects compatible with a territorial existence as is possessed by a state, including the power of taxation in all its aspects. The assessment of the expense of grading a street in the city of St. Paul upon the lots fronting upon such street under section 5, chapter 7, of the charter of that city, is an exercise of the taxing power of the government, and not the right of eminent domain. This can hardly be considered an open question since the decision of the case of People v. The Mayor, &c., of Brooklyn, 4 N. Y. 419. The reasoning of the court in that case is conclusive to my mind, and removes all doubts about the power conflicting with the provisions of the constitution prohibiting the taking of private property for public use without compensation. I shall not...