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

• Decision Date: 05 February 1885
• Citation: State ex rel. Lewis v. District Court of Ramsey County, 22 N.W. 295, 33 Minn. 164 (Minn. 1885)
• Parties: State of Minnesota ex rel. Robert P. Lewis and others v. District Court of Ramsey County
• Court: Minnesota Supreme Court

22 N.W. 295

33 Minn. 164

State of Minnesota ex rel. Robert P. Lewis and others v. District Court of Ramsey County

Supreme Court of Minnesota

February 5, 1885

Certiorari. The city of St. Paul, having through its council and board of public works made an assessment to pay for grading Rice street, applied to the district court for Ramsey county, upon due notice, for judgment against certain property which had been assessed and on which the assessments were not paid. Upon the application before Brill, J., the relators, owners of certain of the assessed property appeared and objected to judgment for the reasons stated in the opinion. Evidence was introduced in support of the objections, and judgment was ordered against the property. The relators then sued out this writ.

Judgment affirmed.

James B. Beals and W. K. Gaston, for relators.

An order to "grade" does not authorize macadamizing any more than it would paving or planking. They are all separate improvements. (Sp. Laws 1874, c. 1, subc. 7, title 1, § 2.) Such an improvement requires the action of both the council and the board. Althen v. Kelly, 32 Minn 280.

W. P. Murray, for respondent.

Gilfillan C. J. Berry, J., concurring. Mitchell, J., concurring.

OPINION

Gilfillan, C. J.

Certiorari to review the judgment and proceedings of the district court upon an application by the city of St. Paul, under its charter, for judgment upon an assessment for grading Rice street. On the trial below the city introduced the assessment warrant and rested. That made a prima facie case under section 54, chapter 7, of the charter of the city, (Sp. Laws 1874, c. 1, as amended by Sp. Laws 1875, c. 1, § 15.)

The relator makes here, as we understand him, substantially these objections to the assessments, all of which were made in the court below: First. The order of the common council to the board of public works was merely to "grade" the street, whereas the board caused stone gutters and curbing to be put down and the street to be macadamized, -- much more expensive work than mere grading, -- and the board had no authority to do the work for which the assessment was made. Second. The assessment was not recorded as required by section 21, chapter 7, of the charter, but was upon a mere fugitive or loose piece of paper, not signed, certified, or identified. Third. The assessment was not confined to property fronting on Rice street, but took in all property within a quarter of a mile on each side of Rice street north of Sycamore street to the city limits, making upon that property a merely front-foot assessment, regardless of any fact except that it lay within a quarter of a mile of Rice street, and leaving unassessed property equally benefited with that assessed, and bearing the same relation to the improvement.

After the city rested its case, the relator, to establish the objections made by him, introduced -- First. An order of the common council referring the matter of grading Rice street between designated points to the board of public works, to examine and report. Second. The report of the board to the council, stating that they considered the said improvement necessary and proper; that they estimated the expense at $ 52,000; that in their opinion real estate to be assessed for the improvement could be found benefited to the extent of damages, cost, and expenses necessary to be incurred thereby; that the improvement was not asked for by a majority of the owners of property so to be assessed; and that they transmitted with the report a plan or profile of the work to be done, and of an order directing the work. The plan or profile was not introduced. Third . An order of the council directing the board to grade the street between the points designated. Fourth. A notice of a meeting of the board for December 31, 1883, to make assessments for grading the street between the points designated, specifying the property to be assessed as that fronting on the street between those points, and stating the aggregate amount to be assessed as $ 48,311.35. Fifth. A resolution of the board on March 17, 1884, annulling the previous notice, and directing a new notice. Sixth. A notice pursuant to the terms of said resolution, for a meeting of the board on March 31st, to make assessment for grading the street between the points designated, specifying the property to be assessed as that fronting on Rice street, from College avenue to the north city limits, and all within a quarter of a mile on either side of Rice street north of Sycamore street, and such property in Green's addition, Jilson's subdivision, Guerin's outlets, and Flynn's subdivision as fronts on Sycamore street; and such other property as might be deemed benefited thereby; and stating the aggregate amount to be assessed as $ 48,463. Seventh. The entry in the records of the board, declaring the assessment completed, and directing the clerk to give notice of the meeting for confirming the report. Relator admitted that proper notice of the meeting to confirm was given, but the notice was not introduced. Eighth. The map of the city, so far as related to the property assessed, and one block on each side. Ninth. The record of the confirmation and of the assessment, as entered in the record book of confirmations. Tenth. Evidence as to the character of the work done, and also tending to show that on the streets where lots on one side were assessed, but not lots on the other, the benefits to the lots not assessed were as great as to those assessed.

The question is, did the evidence so introduced establish the objections raised, so that the court below ought to have rendered judgment against the city? This must be determined upon the provisions of the city charter regulating such assessments. Controlling general rules to be applied upon the trial of any contest on an assessment are found in section 39, chapter 7, (as amended by Sp. Laws 1875, c. 1, § 12,) and section 54, (as amended by Sp. Laws 1875, c. 1, § 15.)

Sec. 39. * * * "No objection 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 said work performed, and no objections as to any other of the proceedings shall be sustained on any mere formal irregularity or defect." (Mun. Code, St. Paul, p. 91.)

Sec. 54. "No error or omission which may have heretofore been or may hereafter be made in the order or in the proceedings of the common council or board of public works, or of any of the officers of said city, in referring, reporting upon, ordering, or otherwise acting concerning any local improvement provided for in this chapter, or in making any assessment therefor, or in levying and collecting such assessment, not affecting the substantial justice of the assessment itself, shall vitiate or in any way affect such assessment. The reports of the city treasurer and assessment warrants held by him, referred to in section thirty-six of this chapter, shall be prima facie evidence that the proceedings up to the date of such warrants were valid and regular. * * *" (Mun. Code, St. Paul, p. 98.)

When, in this case, the city had introduced the assessment warrant, it had proved, prima facie, that everything essential to the validity of the assessment had been done. The onus was then on any one claiming that anything on which the validity of the assessment depended had been done amiss or omitted, or that any state of things required to such validity did not exist, to establish it by proof.

The provision making non-essential errors or omissions not affecting the substantial justice of the assessment, disposes of the relator's second objection above set forth. The assessment seems to have been at first entered on sheets of paper, attached together in a roll, with a proper caption, and kept in the office of the board; and, upon being confirmed, to have been recorded in a book. We do not see that it is necessary to record in a book, or sign or certify the assessment, before it was confirmed, and while it was incomplete, in the nature of a proposed assessment, which might or might not become final. Even if it ought to have been done, the omission to do it did not affect the substantial justice of the assessment, and consequently cannot vitiate it.

The relator's third objection above stated is not established by the evidence. The matter of determining what property is specially benefited by a local improvement, and the extent of the benefit, belongs, under the charter of St. Paul, to the board of public works, and their decision is conclusive except in case of fraud or demonstrable mistake of facts. Rogers v. City of St. Paul, 22 Minn. 494; Carpenter v. City of St. Paul, 23 Minn 232; State v. Board of Public Works...