State ex rel. Wheeler v. District Court of Ramsey County
| Decision Date | 25 June 1900 |
| Docket Number | 12,039 - (23) |
| Parties | STATE ex rel. JOHANNA H. WHEELER and Others v. DISTRICT COURT OF RAMSEY COUNTY and Another |
| Court | Minnesota Supreme Court |
Certiorari to the district court for Ramsey county and Honorable Charles E. Otis, a judge thereof, to review an order of said court overruling the objections of relators to an assessment for street paving, made by the board of public works of the city of St. Paul, and directing judgment against the property of relators. Writ quashed.
City of St. Paul -- Assessment for Paving Street -- Benefit to Abutting Property -- Paving Street Intersections.
In a proceeding instituted under the charter of the city of St Paul to obtain judgment for the amount of an assessment on account of paving a street, the court found from the evidence that it was the finding and judgment of the board of public works, which board makes the assessment in the first instance, that the real property abutting upon that part of the street which was to be paved was specially benefited, at least, to the extent of the entire cost; that such benefit was wholly confined to such abutting property; and that all of said property (that is, each lot) was uniformly and equally benefited per front foot. On this finding or judgment said board assessed the cost of the improvement upon the abutting property uniformly and at the same amount for each foot of lot frontage. It is not contended that this finding is unsupported by the evidence. In view of the finding and judgment, and the rule established in a number of cases in this court as to the conclusiveness of the same, it is held that the claim of counsel that the assessment was made arbitrarily upon a front-foot basis, and without regard to benefits, is without foundation; and it is held, further that the conclusive character of this finding and judgment is not affected or overturned by the mere fact that in making the assessment the board ignored the fact that the improvement did not include the paving of street intersections on the south half of the same, but did include such cost as to all intersections on the north half, or, in other words, by the mere fact that the intersections first mentioned were, for some unexplained reason, not paved under this contract, while those last mentioned were paved.
City of St. Paul -- Presumption as to Action of Board of Public Works.
The presumption is that the board of public works has exercised its proper judgment in levying an assessment for any particular local improvement, and until something appears in the record itself which amounts to and demonstrates a mistake of fact, and of an affirmative nature, by way of evidence to the contrary, the action of the board is final and conclusive, except in case of fraud, or when it appears that an illegal principle or erroneous rule of law has been applied.
Occupation of Street by Street Railway -- Agreement to Pave.
It was admitted at the trial that the street-railway company occupied the street with a single track for a distance of about three hundred feet, and that no deduction on the assessment had been made on account thereof. Held that, to make the point available, it was, at least, essential for the objectors to show that the company, when obtaining the right to use the street, had agreed to pave that part over which it actually ran its cars.
Fund for Repair and Maintenance.
Under the guise of paying the cost of constructing a pavement, a municipal corporation cannot collect a fund in advance, to be used at some indefinite time, for the repair and maintenance of such pavement.
Contract to Repair -- Guaranty.
The contract in question, for paving the street and keeping it in repair, examined, and the agreement to repair construed to be nothing more than a guaranty of the quality of the workmanship and material, and not a general obligation to make repairs, irrespective of the causes making repairs necessary.
Assessment for Repaving Street.
Unless restrained by the charter, under which the power to impose special assessments upon property specially benefited thereby is conferred upon a municipal corporation, that power is not exhausted when one improvement is made. It is a continuing power, and whenever its exercise again becomes necessary, by reason of the destruction or inutility of the original improvement, it may again be exerted. This rule is applicable to the city of St. Paul, which is empowered by its charter, and without limitation, to make assessments upon specially benefited property for the cost of "paving" any street, levee, alley, or highway.
Assessment for Repaving Street -- Charters of Other Cities.
The fact that the charters of one or more cities in this state expressly grant authority to "repave" as well as to "pave" cannot be accepted as conclusive proof that the legislature intended to abrogate the general rule, as above stated, in cities where the charters are silent on the subject of repaving.
Bishop H. Schriber and Ambrose Tighe, for relators.
This proceeding is the taking of property without due process of law. See State v. District Court, 29 Minn. 62; State v. District Court, 51 Minn. 539. The exaction from the owner of private property of the cost of a public improvement in substantial excess of the benefits accruing is, to the extent of such excess, a taking, under the guise of taxation, of private property for public use without compensation, and is a violation of the fourteenth amendment to the federal constitution. Village of Norwood v. Baker, 172 U.S. 269; Hutcheson v. Storrie, 92 Tex. 685; Asberry v. City, 91 Va. 562; City v. Chapin, 112 Mich. 588; Thomas v. Gain, 35 Mich. 155; Tidewater v. Coster, 18 N.J.Eq. 518. All intersecting streets should have been considered as property benefited. The intersections actually paved were a special benefit to intersecting streets. In any event, the corner lots which abut both on Cedar street and the intersecting streets, where the intersections were paved, should pay a greater proportion of the cost of the improvement than lots which have a frontage on Cedar street only. The fee of these lots extends not only to the center of Cedar street, but to the center of the intersecting streets, while the fee of inside lots extends only to the center of Cedar street. It was error for the board of public works to ignore the fact that the cost of the improvement did not include the paving of intersecting streets upon the south half of the improvement, or all south of Eighth street; and did include the cost of paving all intersecting and abutting streets on the north half of the improvement, or from Eighth street to Summit avenue, both inclusive.
The exemption of the street-railway company from any share of the cost of the improvement, vitiates the assessment. See City v. Prescott, 51 La. An. 1895, 46 L.R.A. 193, and notes.
The contract for the improvement embraces an independent agreement to maintain and keep the street in repair for a period of ten years. The following cases hold contracts similar to this to embrace an independent agreement for repairs, and not to be a guaranty merely: Portland v. Bituminous, 33 Ore. 307; Verdin v. City, 131 Mo. 26; Fehler v. Gosnell, 99 Ky. 380; Bullitt v. Selvage, 20 Ky. L. 599; People v. Maher, 56 Hun, 81; McAllister v. City, 9 Wash. 272; Boyd v. City, 92 Wis. 456; Brown v. Jenks, 98 Cal. 10; Excelsior v. Leach (Cal.) 34 P. 116; Partridge v. Lucas, 99 Cal. 519. The city has no authority to levy an assessment for repairing a public street. Statutes conferring powers of taxation are to be strictly construed. 2 Dillon, Mun. Corp. (4th Ed.) § 763; Mayor v. Hartridge, 8 Ga. 23; Kyle v. Malin, 8 Ind. 34; Orange v. City, 17 Grat. (Va.) 176; Black, Interp. Laws, §§ 113, 115, 119; Cooley, Tax. 609. Legislatures and the courts generally recognize that paving and repaving are different sorts of public improvements. Hammett v. Philadelphia, 65 Pa. St. 146; Appeal of the Protestant Orphan Asylum, 111 Pa. St. 135; City of Beck, 128 Pa. St. 147; City v. Segelbaum, 151 Pa. St. 172; Leake v. City, 171 Pa. St. 125; In matter of Phillips, 60 N.Y. 16; In matter of Garvey, 77 N.Y. 523; In matter of Grube, 81 N.Y. 139; Jex v. Mayor, 103 N.Y. 536; In matter of Smith, 99 N.Y. 424; Gilmore v. City, 121 N.Y. 561; City v. Palmer, 67 Iowa 681; Boyd v. City, supra; Adams v. City, 105 Wis. 363; Dickinson v. City, 111 Mich. 480; Burckhardt v. City, 103 Ga. 302; Bradley v. McAtee, 7 Bush, 667; Holland v. Mayor, 11 Md. 186; Robertson v. City, 55 Neb. 718; Chicago v. Sheldon, 9 Wall. 50. The successive acts for the government of St. Paul are persistently silent on the subject of repaving. On the other hand, in respect to Minneapolis and Stillwater, the history of legislation has been different.
James E. Markham and Franklin H. Griggs, for respondents.
The assessment was not one arbitrarily made according to frontage and without regard to benefits, but was properly levied within the rule prescribed by the charter. State v District Court, 29 Minn. 62; State v. District Court, 33 Minn. 295; State v. District Court, 68 Minn. 242. The railway company could not have been assessed for any part of the cost. The assessment is not rendered invalid by the terms of the contract, whether it provides simply for a guaranty of the payment or contains provisions for what may be termed repairs. The so-called repair clause is at most a mere guaranty. City v. Hanson, 60 Kan. 833; Brown v. Jenks, 98 Cal. 10; City v. Henderson, 5 Bush, 515, 520; City v. Dressman, 6 Bush, 210, 214; Osburn v. City, 104 Iowa 160; City v. Trustees, 66 Hun, 179; Barber v. Ullman, 137 Mo. 543; Seaboard v. Woesten, 147 Mo. 467; Robertson v. City, 55 Neb. 718; Gosnell v. City, 14 Ky. L. 719; Cole v....
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