State v. Johnson

• Decision Date: 17 June 1910
• Docket Number: 16,589 - (154)
• Citation: State v. Johnson, 111 Minn. 255, 126 N.W. 1074 (Minn. 1910)
• Parties: STATE v. ANDREW JOHNSON and Others
• Court: Minnesota Supreme Court

126 N.W. 1074

111 Minn. 255

STATE v. ANDREW JOHNSON and Others

Nos. 16,589 - (154)

Supreme Court of Minnesota

June 17, 1910

Proceedings in the district court for Clearwater county to collect taxes delinquent for the year 1905 against certain real estate. Forty-three objectors answered that they were homestead entrymen upon the lands belonging to them respectively, and the amount assessed was for one tenth of the assessment for the construction of a ditch illegally established under Laws 1901, c. 258. The cases were tried together before Stanton, J., who ordered judgment discharging and relieving each of the tracts of land from such portion of the tax for the year 1905 as represented and was entered as a part of the assessment against said tract for the construction of Ditch No. 1, Clearwater county, Minnesota.

From an order denying its motion for a new trial, the state appealed. Remanded with instructions to enter judgment for the proper amount, including one tenth of the assessment and interest against those tracts of land upon which final proof had been made prior to August 1, 1904, and as to the tracts of land upon which such proof had not been made at that date, that they be discharged from the lien of the special assessment.

SYLLABUS

Delinquent taxes -- answer -- installment of ditch tax.

Section 919, R.L. 1905, limiting the defenses which may be interposed by a landowner upon the application for judgment for delinquent taxes, applies to the installment of a ditch lien sought to be included pursuant to the provisions of the drainage laws.

Delinquent taxes -- remedies of landowner.

Under chapter 258, Laws 1901, as amended by chapter 38, Laws 1902, one whose lands are included in proceedings to establish a county ditch may (1) appeal upon the statutory grounds; (2) by certiorari bring up for review any order affecting a substantial right; (3) resist the application for judgment upon any ground allowed by section 919, R.L. 1905.

Application for judgment -- insufficiency of order.

Insufficiency of the order for the improvement cannot be made a defense upon the application for judgment.

Homestead entries -- federal statute.

Prior to the act of congress of May 20, 1908, land of the United States entered as a homestead, but not finally proved as such, was not subject to the lien of a drainage assessment.

Oscar T. Stenvick, Edward T. Teitsworth and J. M. Martin, for appellant.

W. E. Rowe and Thomas Keefe, for respondents.

OPINION

O'BRIEN, J.

Proceedings were instituted in the county of Clearwater for the establishment of a public ditch. Notice of the hearing upon the petition was given, viewers were appointed, as was also an engineer to make the necessary survey, and their reports were filed. The ditch was ordered, and the final assessment roll filed in the office of the register of deeds August 1, 1904. One-tenth of the amount assessed against each tract, with interest, was on the first day of January, 1905, entered on the tax lists of said county against the tract. The owners of forty-three of the tracts so assessed answered in the proceedings instituted to obtain judgment for the taxes so levied. The answers in each case were identical, and alleged want of jurisdiction in the proceedings making the assessment for the construction and opening of the ditch, also that the tract to which each answer referred had been entered by the objector as a homestead pursuant to the laws of the United States, but that final proof of the claimant's right to such tract was not made or filed until after August 1, 1904.

The court below refused to include the assessment in the tax judgment upon the ground that the order establishing the ditch was void for indefiniteness. In the memorandum attached to the findings the learned trial judge expressed the opinion that the ditch liens, even if all proceedings were regular, would not attach "to the tracts held under United States homestead application upon which final proof had not been made prior to the first day of August, 1904, the date upon which the auditor's statement was filed with the register of deeds." The court also found "that the county of Clearwater, acting through its board of county commissioners, without right and without authority so to do, caused said 'ditch No. 1, Clearwater county, Minnesota,' to be constructed, but that said county commissioners, in so doing, believed that they were acting under and pursuant to the drainage laws, and all their several acts were performed in good faith, in a bona fide attempt to do what they believed to be their duty under such laws, and not otherwise, nor for any other purpose."

The record contains a summary of the testimony of Andrew Johnson, from which we quote the following: "That he and most of the other objectors were homesteaders on the lands involved in their respective answers herein; that they had filed on and were occupying said lands during the pendency of the proceeding for the establishment of ditch No. 1, and that they had not made final proof on said lands at the time said ditch was established." From this it fairly appears that the objectors were in the actual occupancy of the lands assessed, all of which were presumably in the immediate vicinity of the ditch and received more or less benefit from its construction. So far as the record shows, the first objection made by any person to the establishment and construction of the ditch or the assessment to pay for it was when the answers already referred to were filed in the proceedings to obtain judgment for the unpaid and delinquent taxes for the year 1905.

The method provided by the statutes of this state for the collection of special assessments levied for the construction of drains or ditches is to add each year one-tenth of the total assessment to the general taxes levied against the particular tract until the assessment is paid in full. The statute in force at the time of these proceedings was chapter 258, p. 413, Laws 1901, as amended by chapter 38, p. 90, Laws 1902. Section 12, c. 38, Laws 1902, made the assessment a lien upon the filing of the assessment statement with the register of deeds; and section 13 of the same act after providing for the inclusion in the general taxes for each subsequent year of one-tenth of the amount of such lien, provided "* * * one-tenth of such tax shall become due and payable, with accumulated interest thereon, at the time and in the manner and be subject to and be collected with like penalties as all other taxes for said year on said tracts in which such entry was made, and another one-tenth with and as the taxes of each successive year until all is paid. * * *"

It is contended upon behalf of the public authorities that respondents' objections come too late; that having stood by and witnessed the proceedings for the establishment of the ditch, and its subsequent construction, with the resultant benefit to their lands, they will not now be heard to question the validity of the assessment. The respondents, who were the objectors in the court below, insist that the proceedings for the establishment of the ditch were void abinitio, and that no rights whatever can be asserted under them. It must, we think, be conceded that the proceedings were so insufficient that, had an attempt been made to arrest them, it would undoubtedly have been successful. The defects pointed out in the findings of the court were almost identical with those considered by this court in Johnson v. County of Morrison, 107 Minn. 87, 119 N.W. 502. Therefore, if the objectors have not lost their right to take advantage of those defects, the conclusion of the trial court was correct.

1. There is abundant authority for the claim advanced by appellants that where a property owner stands by and witnesses the expenditure of public funds in improvements which confer special benefits upon his property, and where the character of the improvement is such that it must be paid for by an assessment upon the land benefited, he will not be permitted to question the validity of an equitable assessment levied for improvements made under color of law. Cooley, Taxation (3d Ed.) 1514; Board v. Plotner, 149 Ind. 116, 48 N.E. 635; Patterson v. Baumer, 43 Iowa 477; Kellogg v. Ely, 15 Oh. St. 64; Atkinson v. City Council, 169 Mass. 240, 47 N.E. 1029; Atwell v. Barnes, 109 Mich. 10, 66 N.W. 583. This court has held valid and given retroactive effect to a statute authorizing the reassessment of property to meet the expense of a local improvement made in pursuance of invalid proceedings. In re Piedmont Ave. East, 59 Minn. 522, 61 N.W. 678.

In State v. District Court of Ramsey County, 95 Minn. 183, 103 N.W. 881, it appeared that an assessment for a public improvement in the city of St. Paul had been held insufficient "for the reason, among others, that the order of the common council of the city purporting to authorize the making of the improvement was void. Thereupon the board of public works, upon receiving notice from the city treasurer that the original assessment had been set aside, made a reassessment for the cost of the improvement, upon the property benefited thereby, without any further order from the council." The assessment was sustained under the curative provisions of the city charter. The defect relied upon in that case was similar to that urged here. The order for the improvement was insufficient.

2. We do not find it necessary to hold that in the absence of a statute the objectors would be estopped from now taking advantage of any omission or defect in the order establishing the ditch, as in our opinion the question is disposed of by the statutory law. As provided by section 13, c. 38, p. 101, Laws 1902, one-tenth of the assessment is to be...