State ex rel. Cunningham v. Board of Public Works of City of St. Paul

• Decision Date: 09 February 1881
• Citation: State ex rel. Cunningham v. Board of Public Works of City of St. Paul, 8 N.W. 161, 27 Minn. 442 (Minn. 1881)
• Parties: State of Minnesota ex rel. John W. Cunningham and others v. Board of Public Works of the City of St. Paul
• Court: Minnesota Supreme Court

8 N.W. 161

27 Minn. 442

State of Minnesota ex rel. John W. Cunningham and others v. Board of Public Works of the City of St. Paul

Supreme Court of Minnesota

February 9, 1881

Certiorari to the board of public works of the city of St Paul. The common council of the city of St. Paul having ordered the board of public works to cause a certain portion of Mackubin street in that city to be graded, the board having made estimates for the improvement, and having let the contract in accordance with the law, gave the notice required by the charter of the city (Sp. Laws 1874, p. 62, § 25,) of the time and place of their meeting for the purpose of making an assessment to pay for the same, and notified all persons interested to be present at such time and place, and that they would be heard. The relators appeared at this meeting and presented various plans for making the said assessment. The board completed the assessment, confining the same to all property on the line of a portion of Mackubin street, including the portion graded, and extending beyond in both directions, "assessing all alike, * * * except that the property in front of which gutters were constructed should be charged the additional cost of said gutters." Subsequently, and in accordance with the charter, (Sp. Laws 1874, p. 62, § 26,) the board gave public notice of a meeting to hear objections to the assessment as completed and for confirmation of the same. At this meeting the relators appeared and objected to the assessment and its confirmation, because, as they alleged in substance, the said assessment was not made upon all the property benefited by the improvement, nor in just proportion according to the benefit, but that the same was made upon only a small proportion of the property benefited, without consideration of the form and position of the several portions of land assessed or the nature of the owner's interest therein, and that the same was "fraudulent and void, as said board, when it made the same, well knew." The relators offered to introduce evidence to prove the truth of their allegations; but the board refused to hear the same, and the assessment was confirmed as completed. Thereupon the relators made application for this writ.

The writ herein issued quashed.

McMillan & Beals, for relators.

This court has allowed this writ with an enlarged office. Minn. Cent. Ry. v. McNamara, 13 Minn. 508. It is the proper remedy in this case. Le Roy v. Mayor, 20 John. 430; Baldwin v. Calkins, 10 Wend. 169; People v. Board of Police, 39 N.Y. 506; People v. Jefferson County Court, 55 N.Y. 604; Western R. R. Co. v. Nolan, 48 N.Y. 513; People v. Williamson, 13 Ill. 660. The right of appeal is taken away by statute, and, on application for judgment in the district court, no review of the errors complained of can be had. Sp. Laws 1874, p. 62, § 26, and p. 67, § 39 as amended by Sp. Laws 1875, p. 19, § 12. The board of public works, in making this assessment, acts judicially. Its confirmation is its judgment, and is subject to review by certiorari. Starr v. Trustees of Rochester, 6 Wend. 564; City of Camden v. Mulford, 26 N. J. Law, 57; State v. Dowling, 50 Mo. 134; Parks v. Boston, 8 Pick. 218.

W. P. Murray, for respondent.

A writ of certiorari should not be allowed at the instance of any individual. Case of 51st Street, 3 Abb. Pr. (N. Y.) 232; Matter of 80th Street, 17 Abb. Pr. (N. Y.) 324; Libby v. Town of West St. Paul, 14 Minn. 248. Great public detriment or inconvenience might result. People v. Supervisors of Allegany, 15 Wend. 198; People v. Supervisors of Queens County, 1 Hill, 195; Mount Morris Square, 2 Hill, 14; People v. Mayor of New York, 2 Hill, 9; Ex parte Mayor of Albany, 23 Wend. 277; Carpenter v. City of St. Paul, 23 Minn. 232; Dousman v. City of St. Paul, Id. 394. The board of public works were the sole judges; their action was final and conclusive upon all parties interested; Sp. Laws 1874, p. 62, § 26; and the assessment should only be set aside for fraud or mistake. Rogers v. City of St. Paul, 22 Minn. 494; Wright v. City of Chicago, 48 Ill. 285; Jenks v. City of Chicago, Id. 296; Elliott v. City of Chicago, Id. 293.

OPINION

Berry, J.

With reference to assessments for grading streets, the charter of St. Paul (Sp. Laws 1874, c. 1, § 25, p. 62, as amended by Sp. Laws 1875, c. 1,) provides that before proceeding to make an assessment, the board of public works shall give notice of the time and place of their meeting for the purpose of making the same, "in which notice they shall specify what such assessment is to be for, and the amount to be assessed," and that all persons interested in any such assessment shall have the right to be present, and to be heard either in person or by counsel, and the board may, in their discretion, receive any legal evidence. Section 26 provides that when the board have completed the assessment, they shall give notice of a meeting to hear objections, and for the confirmation of the same, at which meeting all parties interested shall have the right to appear, and show cause why the assessment should not be confirmed; and the board are authorized, in their discretion, to revise and correct the assessment, and to confirm or set it aside. The city treasurer, to whom the warrant for the collection of the assessments is delivered, having given notice of his intended applications for judgment for delinquent assessments, and having made report to the district court, the court proceeds to the hearing of the applications, and the owner of any property reported delinquent, or any person interested therein, may appear and file objections in writing to the recovery of judgment against such property. "No objection," says section 39, as amended, "shall be interposed or sustained in relation to any of the proceedings prior to the confirmation of the assessment, except that the common council had no authority to order the said improvement, or that the board of public works had no authority to have the said work performed; and no objections as to any other of the proceedings shall be sustained on any mere formal irregularity or defect; and the city treasurer may amend, by leave of the court in its discretion, in any matter in furtherance of justice. The court shall hear and determine all objections in a summary manner, without pleadings, and shall dispose of the same with as little delay as possible, consistently with the demands of public justice; but should justice require that for any cause the suit as to one or more owners should be delayed, judgment shall then be rendered as to the other property and lands, and process shall issue for the sale thereof the same as in all other cases." Section 54, as amended, provides that "no error or omission which may have heretofore been, or may hereafter be made, in the order or in the...