State ex rel. Kafka v. District Court of Ramsey Co.

• Decision Date: 19 February 1915
• Docket Number: Nos. 18,941 - (173).,s. 18,941 - (173).
• Citation: 128 Minn. 432
• Parties: STATE ex rel. GUSTAVE KAFKA v. DISTRICT COURT OF RAMSEY COUNTY and Another.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

128 Minn. 432

STATE ex rel. GUSTAVE KAFKA v. DISTRICT COURT OF RAMSEY COUNTY and Another.¹

Nos. 18,941 - (173).

Supreme Court of Minnesota.

February 19, 1915.

Upon the relation of Gustave Kafka this court issued its writ of certiorari to review the decision of the district court for Ramsey county, Brill, J., confirming an assessment made by the board of public works of the city of St. Paul for property condemned for the purpose of widening a street. Affirmed.

Durment, Moore & Oppenheimer, for relator.

O. H. O'Neill and J. P. Kyle, for respondents.

B. H. Schriber, as amicus curiæ, filed a brief.

[PHILIP E. BROWN, J.]¹

Certiorari to review a judgment entered on relator's appeal confirming an assessment made by the board of public works of the city of St. Paul, in the exercise of the right of eminent domain. The findings of the trial court forming the basis of the judgment are unchallenged, and may thus be summarized:

In 1913 relator was in possession, as lessee, of the ground floor of a building abutting on Robert street, with the right of so continuing for four years longer. In that year the city took some of the land underlying the building for the improvement of this street. The proceedings therefor were in all things regular up to the time of the assessment by the board of public works, and the latter had jurisdiction to make the assessment of damages caused by the taking and the benefits accruing from the improvement. While these matters were pending and before confirmation of the assessment, relator seasonably claimed that a separate award of damages to his leasehold interest be made to him, but the board refused and, instead, fixed a fair valuation of the property as a whole and fairly and impartially assessed a sum in gross as damages and compensation for the taking, including all interests therein. No apportionment of this amount was made between relator and the fee owners; and later the city paid to and the latter accepted the entire sum so awarded. Judgment confirming the assessment was ordered and entered.

Section 250 of the city charter provides that on appeal to the district court from an order of the board of public works confirming as assessment:

"The only question to be passed upon shall be whether the said board of public works had jurisdiction in the case, and whether the valuation of the property specified in the objections is a fair valuation, and the assessment, so far as it affects such property, is a fair and impartial assessment. The judgment of the court shall be either to confirm or annul the assessment in so far as the same affects the property appropriated aforesaid of the said appellant."

Relator contends that the procedure adopted by the board was irregular and not in accordance with the charter, wherefore his property was appropriated without just compensation first paid or secured, in violation of Const. art. 1, § 13; that the assessment, insofar as it affects his property, was unfair and not impartial; and that he was entitled to a separate award or at least an apportionment of his interest in the gross amount allowed, so that he could either receive it or have its correctness reviewed on appeal; and, further, that without such apportionment he is without remedy to recover his compensation; the relief demanded upon these premises being that the district court should remit the award for re-assessment.

For the purposes of discussion it will be assumed that relator had valuable rights in the property condemned, entitling him to substantial compensation, and that he took all necessary preliminary steps to protect them. This brings us directly to the consideration of his claims as outlined above, in the course of which the inquiry obviously must be limited to matters pertinent within the limitations imposed by section 150 of the charter upon the scope of the hearing on the appeal. The other relevant provisions of the charter are as follows:

Section 243: "The said board of public works, in making said assessment, shall determine and appraise to the owner or owners the value of the real estate appropriated for the improvements, and the damage arising to them respectively from the condemnation thereof, which shall be awarded to such owners respectively, as damages, after making due allowance therefrom for any benefit which such owners may respectively derive from such improvements."

Section 247: "If the lands and buildings belong to different persons, or if the land be subject to lease, the damages done to such persons, respectively, may be awarded to them by the board of public works, less the benefits resulting to them, respectively, from the improvement."

Section 251: "The city of St. Paul shall thereupon cause to be paid to the owner of such property the amount of damages over and above all benefits which may have been awarded therefor within six (6) months after date of the confirmation of such assessment, with interest at the rate of seven (7) per cent per annum."

Under the ruling of Moritz v. City of St. Paul, 52 Minn. 409, 415, 54 N. W. 370, these provisions do not purport to require the board of public works to assess the damages or apportion the award separately to each person, unless, as has been suggested, a contrary conclusion is justified by the difference in the wording of the charters under which the assessment therein involved and the one here in question were respectively made, whereby, it is insisted, under the latter the damages to the persons should be considered instead of to the property as under the former. It is settled, however, that condemnation proceedings are in rem, against the property, for which the award, when made, stands as belonging to those formerly having interests in the property and in the same proportion. Smith v. City of St. Paul, 65 Minn. 295, 297, 68 N. W. 32; Eyre v. City of Faribault, 121 Minn. 233, 141 N. W. 170. And we are not persuaded that the proceedings were intended to be otherwise, especially as the permissive form of section 247 negatives, rather than strengthens, any implication of mandate from the frequency and manner of reference to the "owner" in the other sections. Hence the only theory on which it could be held that the board were required to make a separate award to relator or to apportion his share of the gross award is, as claimed by him, that under the holdings of Bowen v. City of Minneapolis, 47 Minn. 115, 117, 49 N. W. 683; Johnson v. Northwestern L. & B. Assn. 60 Minn. 393, 62 N. W. 381, and State v. District Court of Ramsey County, 75 Minn. 292, 77 N. W. 968, we must construe the word "may" in section 247 as mandatory, in order to sustain the proceedings against constitutional objections and to preserve relator's constitutional and other rights. This construction cannot, of course, be indulged in save for imperative reasons (Medbury v. Swan, 46 N. Y. 200); and as those here presented largely involve the specific constitutional objections interposed by relator, the determination of the latter will in great measure test the sufficiency of the former.

Whether separate awards are necessary under circumstances such as here disclosed has never heretofore been considered by this court. The question was raised, but not decided, in Smith v. City of St. Paul, supra. The uniform practice, however, has been, as we understand it, to consider the property about to be condemned as an entire...