120 Minn. 1 | Minn. | 1912
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 em
The levy and assessment made by the city has been certified by the city clerk to the county auditor of Clay county, and by him entered upon the assessment roll and taxed against plaintiff’s property.
It is clear that as to all matters going to show that plaintiff’s property was not specially benefited by the improvement, and to show mistakes in the plans and specifications, or in making the assessment, plaintiff is without a remedy in this action. The charter of Moorhead provides that any person, interested in any property assessed for benefits resulting from any improvement, may appeal from such assessment to the district court of Clay county, and such appeal is declared to be the exclusive way in which such assessment can be in any wise reviewed, modified, or annulled. It is alleged in the complaint that plaintiff appeared before the commissioners and filed objections to the assessment of its property, but whether it appealed to the district court from the assessment made does not appear. In any event, such appeal is the sole and exclusive remedy, and whether taken or not, plaintiff cannot attack the assessment in an action for that purpose brought after the improvement is made and the contractor paid. This is true as to all matters that do not go to the power of the city to enter into the contract, and disposes of the entire complaint, except the charge that the city in entering into the contract incurred an indebtedness in excess of the limit provided by its charter.
Plaintiff contends that every contract made with a municipality which creates an indebtedness in excess of the legal limit is absolutely void, and that an assessment levied to pay the cost of work done under such a contract is absolutely void, and so subject to attack in an independent action to set it aside as a cloud on the title to property covered by it. Conceding but not deciding this to be correct, and also that failure to raise the objections before the work is actually completed, and the contractor paid, does not estop plaintiff from now claiming the invalidity of the contract as a ground
As we have stated, the city of Moorhead adopted a home rule charter in May, 1900, which charter fixed the limit of indebtedness at five per cent of the assessed valuation of the city’s property. The court will take judicial notice of the provisions of a home rule charter. This was so provided in the Laws of 1899, pursuant to which the city of Moorhead adopted its charter, and the same provision is in all subsequent legislation on the subject. We hold without hesitation that we will take judicial notice of amendments to the charter regularly adopted as well as of the original charter. The law requires amendments adopted by the voters to be certified and a copy deposited in the office of the secretary of state, as in the case of the original charter. An amendment so adopted and certified becomes a part of the charter, and there is no reason for saying that courts will not take judicial notice of such amendments.
It appears that at a special election held May 9, 1910, the voters of Moorhead adopted an amendment to the charter, which was duly certified and deposited as required by law. This amendment expressly authorized the -city to construct a permanent pavement on, or otherwise improve, the street in question, and to enter into the necessary contracts for such work, “all provisions of the charter to the contrary notwithstanding.” This amendment was adopted shortly before the contract in question was entered into, and its purpose was clearly to make legal the undertaking. So far as we can see the work was not prohibited by the original charter, except that the cost thereof would make the indebtedness of the city exceed the five per cent limit, and it is entirely fair to assume that the purpose of the amendment was to authorize the work notwithstanding the indebtedness limit. It was quite clearly within the power of the people of Moorhead to so amend the charter adopted by them as to authorize the expenditure of money for this improvement, though the limit was exceeded. And we think that the intention to do so is apparent, and that the language of the amendment is sufficiently
We agree with the learned trial court that the complaint did not state a cause of action.
Order affirmed.