A. A. White Townsite Co. v. City of Moorhead
| Decision Date | 13 December 1912 |
| Docket Number | 17,729 - (82) |
| Citation | 138 N.W. 939,120 Minn. 1 |
| Parties | A. A. WHITE TOWNSITE COMPANY v. CITY OF MOORHEAD and Others |
| Court | Minnesota Supreme Court |
Action in the district court for Clay county to have a certain contract declared void and to set aside certain assessments levied against plaintiff's property for a retaining wall and pavement. From an order, Taylor, J., sustaining defendants' demurrer to the complaint, plaintiff appealed. Affirmed.
Assessment for local improvement -- remedy of landowner.
Where under the charter of a city, the assessment of benefits for public improvements is given to a board of commissioners with a right of appeal from the assessment to the district court, the owner of property assessed cannot maintain an action to set aside the contract for the improvement and the assessment against his property on any grounds not going to the want of power or jurisdiction on the part of the city to make the improvement, or the assessment. His remedy by a hearing before the commissioners and by appeal is exclusive.
Judicial notice -- home rule charter.
The court will take judicial notice of the contents of a home rule charter, and of amendments regularly adopted thereto, certified and deposited as required by law.
Limit of municipal indebtedness.
An amendment to the charter of Moorhead construed and held to empower and authorize the city to construct a pavement on and retaining wall along a certain street, notwithstanding that the cost of such improvement would make the indebtedness of the city exceed the limit prescribed by the original charter.
Christian G. Dosland, for appellant.
Garfield H. Rustad and F. H. Peterson, for respondents.
This action was brought by plaintiff to have declared void a contract entered into by defendant city of Moorhead for the construction of a retaining wall and pavement on one of its streets, and to have set aside the special assessments levied against property of plaintiff for such construction. Plaintiff appealed to this court from an order sustaining a demurrer to the complaint.
Does the complaint state a cause of action? Its allegations are in substance as follows:
Plaintiff a corporation, is the owner of certain lots and tracts of land within the corporate limits of the city of Moorhead, which city in May, 1900, adopted a home rule charter pursuant to article 4, section 36, of the state Constitution, and chapter 351, p. 462, Laws 1899. This charter provides that "the debt of the city shall not be increased, by bonds or otherwise, beyond five per cent of the total value of the taxable property of the city, according to the last preceding assessment for the purposes of taxation." The city is empowered to levy assessments for local improvements, to the extent of benefits only. The bonded indebtedness of the city is $92,000; the total value of the taxable property of the city, according to the assessment for the year 1909, was $1,227,650. On May 25, 1910, the city entered into a contract with one Kennedy, by which the contractor agreed to construct a retaining wall to furnish lateral support to the soil in a street running along the lots owned by plaintiff, and to construct a pavement on such street. For this work the city agreed to pay Kennedy the sum of $14,562.33, and pledged its good faith and credit for such payment. It is alleged that the plans and specifications for the construction of the retaining wall and pavement were wholly inadequate, defective and impractical, for reasons specifically pointed out; that the wall and pavement were constructed under the contract and specifications, but not according to the best and approved engineering methods, in that the wall was constructed of rows of piling and planks, whereas a solid concrete wall extending beneath the quicksand was necessary, in order to prevent the quicksand constituting the subsoil of the street from flowing under the wall, thus causing the pavement to settle. It is alleged that the pavement has settled and will continue to settle, and that it will in a few years be absolutely worthless. The president of plaintiff appeared before the city council when the plans and specifications were under consideration, pointed out the defects, and protested against the construction of the wall and pavement in accordance with such plans and specifications, but his protest...
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