McGee v. Bd. of Com'rs of Hennepin Cnty.

• Decision Date: 29 November 1901
• Citation: 84 Minn. 472,88 N.W. 6
• Parties: McGEE v. BOARD OF COM'RS OF HENNEPIN COUNTY.
• Court: Minnesota Supreme Court

84 Minn. 472

88 N.W. 6

McGEE

v.BOARD OF COM'RS OF HENNEPIN COUNTY.

Supreme Court of Minnesota.

Nov. 29, 1901.

Appeal from district court, Hennepin county; Frank C. Brooks, Judge.

Action by John F. McGee against the board of county commissioners of Hennepin county. From an order sustaining demurrer to the complaint, plaintiff appeals. Affirmed.

Syllabus by the Court

1. Chapter 88, Gen. Laws 1897, so far as it relates to the establishment of a uniform height of water in Lake Minnetonka, held to have delegated to the board of county commissioners of Hennepin county the legislative duty of exercising the power of eminent domain, and to have imposed upon the district court for that county the judicial function of determining whether such improvement was for a public use.

2. Under chapter 88, Gen. Laws 1897, as applied to the Lake Minnetonka improvement, it is held that the provision of such act authorizing the district court upon presentation of a petition for the appointment of appraisers if ‘it shall be satisfied that the public interests will be advanced,’ is not to be construed as imposing legislative powers upon the judiciary, but as limited to the judicial function of determining whether such improvement was a public use.

3. Whether section 6, c. 88, Gen. Laws 1897, authorizing the district court to change the height of the dam as established by the board of commissioners, imposes legislative duties upon such court, and is invalid, quaere.

4. Notwithstanding the statute authorizes the court to change the height of the dam, the act is in other respects complete, and such provision may be eliminated from it without detriment thereto; and it follows that--

5. The exercise of the power of eminent domain in the Minnetonka Lake improvement under the statute referred to was not in violation of section 1, art. 3, of the constitution, since it does not necessarily impose legislative duties upon the judiciary in order to effectuate such improvement; and held, that no illegal powers were exercised therein in this case.

6. The provision in chapter 88, Gen. Laws 1897, for assessments upon shore lots for the purpose of paying for local improvements, considered, and held to have been authorized by section 1, art. 9, of the state constitution, as amended in 1881, which provides special assessments for such purposes without reference to the cash valuation of the property upon which the burden in imposed. Wm. A. Lancaster, for appellant.

F. H. Boardman, Co. Atty., and C. L. Smith, Asst. Co. Atty., for respondent.

LOVELY, J.

Appeal from an order sustaining a demurrer questioning the sufficiency of the complaint, which, in apt and appropriate terms, alleges a local assessment upon shore lots of Lake Minnetonka to pay their proportionate share for the improvement made under chapter 88, Gen. Laws 1897, considered on other grounds by this court in Carpenter v. Board, 56 Minn. 513, 58 N. W. 295, and Beise v. District Court, 86 N. W. 455; In re Minnetonka Dam, Id. This pleading, without doubt, raises the question of the validity of such assessments, which, upon the claim that they were involuntarily paid, under the rule of State v. Nelson, 41 Minn. 25, 42 N. W. 548,4 L. R. A. 300, may be recovered back, if illegal, which is the question presented by the demurrer. Plaintiff insists that the demurrer should have been overruled for the reason that the Minnetonka improvement authorized by chapter 88, Gen. Laws 1897, under which its waters have been raised and maintained at a uniform height, is in violation of the organic law in two essential respects: (1) That by such act legislative duties were imposed upon the district courts of this state, contrary to section 1, art. 3, of the state constitution; (2) that the enterprise was not a local improvement for which special assessments could be made under the terms of section 1, art. 9, of the state constitution, as amended in 1881. These two grounds of attack may be considered in the order above named.

1. The alleged vice of chapter 88 will be found in section 6 of the act, granting the district courts authority to pass upon the expediency of a public improvement, as well as the quantity of land to be taken to accomplish it, which are questions of legislative policy exclusively, with which the judicial powers vested in courts have no right to interfere. Before coming to the precise terms of the statute which subjects the alleged obnoxious provisions of section 6 to this criticism, it is best to summarize the previous sections of the act. Section 1 provides that ‘the board of county commissioners of any county in which all or a major part of any navigable lake is situated are authorized for the improvement of navigation or the promotion of public health and welfare to establish a uniform height at which the water in such lake may be maintained.’ It is further provided in subsequent sections that, when the board shall have adopted a resolution establishing the uniform height of water, it shall designate the lands to be taken to acquire a dam, if necessary, across any stream on or near the shores of any lake, and designate the property which it shall require to carry out the purpose of the act, also to have a map thereof made; this map to be filed with the clerk of the district court, with a petition setting forth the height at which it is proposed to maintain the water, and designating the lands and property to be taken, as well as the names of the owners, etc., with a prayer for the appointment of three competent and disinterested freeholders to appraise and award compensation to be made to those who suffer damages. The board is then required to give notice to all persons interested of the intention to take the land, and application to the court for the appointment of the appraisers. Section 6, c. 88, containing the provision of which plaintiff complains, provides that: ‘At the time and place designated in such notice, or at the time and place to which any adjournment may be directed by said court, said court, upon the presentation of such petition and map with satisfactory proof that such notice has been served, as hereinbefore provided, shall proceed to hear and determine such petition. * * * Upon said hearing, if said court shall be satisfied that the public interests will be advanced by the establishment and maintenance of the water in such lake at said height, or at such other height as said court may determine, and that the lands and property designated to be taken or purchased as herein provided, or both, or such portion thereof as said court may determine are necessary therefor, said court shall make an order to that effect with additional provisions for the appointment of competent disinterested freeholders * * * to determine and award the compensation to be made * * * for taking the lands.’ The italics are adopted from appellant's able brief to indicate the pith of his contention, which is thus pertinently indicated. In subsequent sections it is provided substantially that the board may, after the action of the court, abandon the contemplated improvement entirely; also that the district court shall appoint three appraisers, who, when the amount needed for the improvement is ascertained, shall pass upon the special benefit, if any, to each particular tract, and assess thereon such sum as shall be deemed its just proportion, respectively, of the total cost of the improvement. The report of the appraisers, if confirmed by the court, and a copy thereof delivered to the county auditor, authorizes the amount assessed against each tract to be included in the next general tax list, so that its collection may be enforced as other taxes.

Plaintiff first attacks the act upon the grounds that the italicized sentences of section 6, which provide that upon the hearing by the court the order appointing the appraisers is to be made when ‘the court shall be satisfied that the public interests will be advanced’ by the maintenance of the water at the height determined upon, and to change the height established by the board, are invalid, upon the ground that such obligations include questions of legislative policy, rather than judicial duty. In other words, that the district court, instead of the board of commissioners, to whom legislative authority to exercise that right has been delegated, is empowered to execute functions in excess of its authority, in contravention to the fundamental law, which divides the powers of the government into three distinct departments,-legislative, executive, and judicial; forbidding any person belonging to or constituting one of these departments to ‘exercise any of the powers properly belonging to either of the others.’ Section 1, art. 3, of the state constitution. There is no doubt that the authority to inaugurate and adopt a scheme for public improvement, whereby private property is to be taken for public use, which is designated the ‘sovereign right of eminent domain,’ is a legislative attribute, to be determined upon grounds of legislative policy. The leading authority in this state upon which counsel relies to support his views and their application to this case is State v. Simons, 32 Minn. 540, 21 N. W. 750. This decision very appropriately delineates and distinguishes the essential co-ordination of legislative and judicial powers, asserting their constitutional independence of each other, which is necessary to the very existence of free government. It was attempted by the legislative enactment in that case to authorize the district court, upon the presentation of a petition by freeholders, to incorporate a municipality, having the usual powers of such organizations to exercise governmental duties. It was held void. Such attempt of the legislature to devest itself of its prerogatives and impose the same upon the courts was so clear as to be apparent upon the face of the act itself, but in many instances of the exercise of the power of...