Rogers v. City of St. Paul

• Decision Date: 08 April 1876
• Citation: 22 Minn. 494
• Parties: HIRAM ROGERS & others <I>vs.</I> CITY OF ST. PAUL.
• Court: Minnesota Supreme Court

22 Minn. 494

HIRAM ROGERS & others vs. CITY OF ST. PAUL.

Supreme Court of Minnesota.

April 8, 1876.

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On July 10, 1873, the common council of the city of St. Paul passed and transmitted to the board of public works of that city a resolution referring to the board a petition for the paving of Third street, from the Seven Corners (so-called) to Sibley street, requesting the board to report to the council: 1. Is the paving of Third street, with a Nicholson pavement or other wooden pavement, proper and necessary? 2. What will be the approximate costs, damages and expenses thereof? 3. Can real estate to be assessed for the costs, damages and expenses of such pavement be found benefited to the extent of such damages, costs and expenses? 4. Is the grading of Third street, from the so-called Seven Corners to Sibley street, necessary and proper? 5. Give an estimate of the costs, damages and expenses of such grading. 6. Send a plan and specification of such grading improvements. 7. Send the council the proper order directing the work for the future action of the council. On July 11 the board reported to the council, answering the first, third and fourth questions in the affirmative, stating that the approximate costs, etc., would be $42,540.00, giving an estimate of the cost, etc., of grading, curbing and necessary retaining-wall, and sending a plan and specifications of the "grading improvements," and the order requested. The plan consisted of a cross-section of the street, showing the thickness of pavement, the slope from centre of street to centre of gutters, and from centre of gutters to the curbing, and the level of the pavement as compared with the level of the sidewalk. The specifications related merely to grading the street to a depth of one and one-tenth feet below the then established grade, with proper crown for reception of the paving, etc.

On July 15, 1873, the council made an order that Third street, from the so-called Seven Corners to Sibley street, be paved with a wooden block pavement with a wooden curbing; that Third street be graded, and the necessary retaining-walls built, according to the plans and specifications sent to the council by the board; that the board advertise for bids for paving Third street, from and to the points indicated, with a wooden block pavement, and wooden curbing; that the board proceed to let the necessary contracts, and carry out the order as required by law. The order also provided that, in case of a patented pavement, the bidder should show his right to use the same, and give the city the right at all times to relay and repair the pavement, and that the grading, paving, etc., should be paid for in the city of St. Paul improvement bonds, at 90 cents on the dollar, or in the cash proceeds of such bonds, and that the amount paid should be reimbursed to the city by an assessment upon the real estate benefited by the improvement, in proportion, as nearly as may be, to the benefit resulting to each particular or separate lot or parcel of land, as provided by law. Afterward, and during the period from July 18 to July 31, 1873, the board advertised for sealed bids for constructing the improvement, the advertisement referring to plans and specifications to be seen at the office of the clerk of the board and at the city engineer's office. Neither before nor during the publication of the advertisement were any plans or specifications deposited in the office of the board, or in any other public office, describing the kind or pattern of pavement to be laid down, or describing the materials of which it was to be constructed, any further than that it was to be a "wooden block pavement." In response to the advertisement five persons submitted bids for paving the street with wooden block pavement, according to specifications prepared by the bidders and accompanying their respective bids, and four of them also submitted bids for grading, etc., in accordance with the specifications prepared by the board. The following is a summary of the bids:

                 NAME OF BIDDER.       KIND OF WOODEN BLOCK                     PRICE
                                             PAVEMENT
                                     (All patented except "Chicago"
                                       and "Stow Improved.")
                Leonard H. Patchen,  Stow Improved, 4x6............  $1.18 per sq. yard
                                     Stow Improved, 4x8............   1.29 per sq. yard.
                                                                     Curbing, 12 cts. per linear foot.
                                                                     Grading, $4,300.00.
                                                                     Retaining-wall, $6,525.00.
                E. Kelley & Co.....  Nicholson.....................  $1.66 per sq. y'd.| 18 cents additional
                                     De Golyer.....................   1.66 per sq. y'd.> for bl'ks
                                     Chicago.......................   1.74 per sq. y'd.| 4x8.
                                                                     Curbing, $736.00.
                                                                     Grading, $5,500.00.
                                                                     Retaining-wall, $6,105.00.
                R. S. Robertson....  Stow Foundation, 4x6..........  $2.00 per sq. yard.
                                                                     Curbing, 12 1-2 cts. per linear ft.
                                                                     Grading, $4,300.00.
                                                                     Retaining-wall, $6,525.00.
                E. P. Smith........  Nicholson, 1 in. plank,                           |
                                       3x6 block...................  $1.76 per sq. y'd.|
                                     Nicholson, 1 1-2 in. pl'k,                         > Including
                                       5x6 block...................   1.85 per sq. y'd.|  curbing.
                                     De Golyer, 4x8 block..........   1.95 per sq. y'd.|
                                     Chicago, 4x8 block............   1.64 per sq. y'd.|
                Chas. Eaton........  Ballard, lock block...........  $46,472.60|  For grading, paving,
                                                                                > curbing and building
                                     Ballard, wedge block..........   44,255.00|  retaining-wall.
                

The contract was let to Patchen as the lowest bidder, and the work was done by him in the fall of 1873. After the letting of the contract, and in October, 1873, the board of public works made and confirmed an assessment of the expenses of the improvement upon property in the vicinity. Certain property owners refusing to pay the assessment, the city took the proper steps for its collection, and applied to the court of common pleas of Ramsey county for judgment against the lots on which the assessment had not been paid, for the amount of the assessment, with interest and costs. At the day appointed for hearing the application, the property owners appeared and filed objections to the entry of judgment. The proceedings above recited were put in evidence, and it was admitted that Third street is the principal thoroughfare of the city, and that there are many different kinds of wooden pavements, differing greatly in expense, value, durability and mode of construction. The objections were overruled by Simons, J., and judgment ordered and entered against the property. A statement of the case was sealed by the judge and made part of the record, on which the objectors moved for a new trial, which was denied. An appeal from the order refusing a new trial was dismissed, (City of St. Paul v. Rogers, ante p. 492,) whereupon the objectors caused the record and proceedings of the court of common pleas to be brought to this court by certiorari.

Gilman, Clough & Lane, for plaintiffs in error.

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W. A. Gorman and H. J. Horn, for defendant in error.

BERRY, J.

This case calls in question the validity of certain proceedings for grading, curbing and paving a portion of Third street in the city of St. Paul. The proceedings were had under provisions of "an act to authorize the city of St. Paul to levy assessments for local improvements," approved March 6, 1871, (Sp. Laws 1871, ch. 32,) as amended February 29, 1872. Sp. Laws 1872, ch. 2. The act and amendment were passed under § 1, art. 9, of our constitution, as amended in 1869, (see Laws 1869, ch. 51,) so as to read as follows, viz.: "All taxes to be raised in this state shall be as nearly equal as may be, and all property upon which taxes are to be levied shall have a cash valuation, and be equalized and uniform throughout the state; provided that the legislature may, by general law or special act, authorize municipal corporations to levy assessments for local improvements upon the property fronting upon such improvements, or upon the property to be benefited by such improvements, without regard to a cash valuation, and in such manner as the legislature may prescribe."

1. The plaintiffs' counsel contend that, Third street being

the principal thoroughfare of the city of St. Paul, the grading, curbing and paving of a portion thereof, as in this instance, were not "local improvements."

By common usage, especially as evidenced by the practice of courts and text-writers, the term "local improvements" is employed as signifying improvements made in a particular locality, by which the real property adjoining or near such locality is specially benefited. Cooley on Taxation, 109, 110, 177, 419, 423, 447, 459; Dillon, Mun. Corp. §§ 400, 401, 586, 596, 597, and many cases cited by these authors; Dorgan v. City of Boston, 12 Allen, 223. An examination of these authorities will also show that the term "local improvements," or terms synonymous, are more commonly applied to the grading, curbing and paving of streets than to any other class of improvements. Our constitution is to be presumed to have employed the term "local improvements" in the sense which is thus attributed to it...