State ex rel. Cunningham v. District Court of Ramsey County

• Decision Date: 06 January 1882
• Citation: 11 N.W. 133,29 Minn. 62
• Parties: State of Minnesota ex rel. John W. Cunningham and others v. District Court of Ramsey County
• Court: Minnesota Supreme Court

11 N.W. 133

29 Minn. 62

State of Minnesota ex rel. John W. Cunningham and others v. District Court of Ramsey County

Supreme Court of Minnesota

January 6, 1882

Certiorari. A previous writ in this matter, directed to the board of public works of St. Paul, was quashed in State v. Board of Public Works of St. Paul, 27 Minn. 442. Following the opinion in that case, the relators, when the city treasurer applied to the district court of Ramsey county for judgment against the property assessed, appeared and objected, and, after a trial, judgment was denied. Thereupon the common council of St. Paul ordered a reassessment, which was made by the board of public works. When the city treasurer applied for judgment on this reassessment, the relators again appeared and filed objections. The case was tried by the court, Simons, J., presiding, and judgment was ordered against all the property reassessed. This writ was sued out to review these proceedings in the district court. The facts upon which, and the manner in which, the reassessment was made, are stated in the opinion.

McMillan & Beals, for relators.

W. P Murray, for respondent.

OPINION

Dickinson, J.

Certiorari to the district court of Ramsey county. Proceedings were had for the grading of a portion of Mackubin street in the city of St. Paul. The proceedings were conducted under the provisions of special legislative enactments relating to the making of such improvements in said city, and the levying of special assessments therefor. Sp. Laws 1874, c. 1 as amended by Sp. Laws 1875, c. 1. After preliminary proceedings, the regularity of which is not called in question, an assessment was made by the board of public works, by which the cost of making the improvements was charged upon the real property of the relators, and upon other property fronting upon the street a part of which was graded. Such assessments having been paid only in part, application was made to the district court on the part of the city, as provided in such statutes, for judgment against the lands so charged, for the amount of such unpaid assessments. Upon hearing upon such application, judgment was refused, for reasons which affected the validity of the assessment. Thereupon the common council, as authorized by such statutes, ordered a reassessment by the board of public works, upon the property as to which judgment had been denied, of its proportionate part of the cost of the improvement. Such reassessment having been made, and the same not having been paid, application was made to the district court for judgment, which was allowed and entered.

By this writ there has been brought before us for review the question as to whether the city was entitled to such judgment. A part of the improvement for which these assessments were made consisted of gutters made upon that part of the street which was graded, and a culvert at a point in the graded part of the street. The making of the gutters and culvert seems to have been treated as a part of the general work of grading the street, but the cost of the culvert and of the gutters was ascertained separate from the cost of the grading proper, and a different apportionment made of the cost of the three items. It appears that so much of the cost of the grading proper as had not been paid upon the former assessment (less the sum of $ 8.15) was, by the assessment in question, charged upon the property fronting upon the street (excepting such property as had paid the assessment before made) along the whole of the graded portion, and for a considerable distance beyond, the charge being made upon all this property equally, in proportion to the extent of its frontage upon the street. It appears that in addition to the assessment of the cost of the grading proper, the cost of the gutters was assessed equally, in proportion to the frontage upon the street, upon the property immediately abutting upon that part of the street where the gutters were laid, and that in the same way the cost of the culvert was charged upon the property immediately adjacent thereto.

It is claimed, on the part of the relators, that the board of public works, in making these assessments, did not pursue the requirements of the statute, in that they did not at all consider or determine the question as to what property was benefited by the improvement, nor the extent or proportion of benefit, but charged the cost of the work upon the property of the relators by applying an arbitrary rule of frontage.

The order or determination of the board of public works in respect to the assessment, and in accordance with which the same was made, as entered in the record of their proceedings is as follows: "Pursuant to due notice, the matter of making and completing the reassessment for grading Mackubin street from Dayton avenue to University avenue came up, and, no one objecting, the said reassessment was completed, and the clerk directed to give the confirmation notice; all property assessed on said Mackubin street, from Charles street to Summit avenue, being deemed benefited proportionately alike, according to frontage, for the cost of grading; and that, in addition thereto, the property fronting on gutters and culverts shall be charged the cost thereof. Yeas, 6." We interpret the latter half of this record as though it read as follows: "All property on said Mackubin street, from Charles street to Summit avenue being deemed benefited proportionately alike,...