City of Stillwater v. Henningsen

109 Minn. 132 | Minn. | 1909

O’BRIEN, J.

On June 20, 1908, the authorities of the city of Stillwater transmitted to the treasurer of that city a warrant commanding him to proceed to collect the special assessment, which the warrant recited was “duly adopted by the city council of the said city of Stillwater on the 16th day of June, 1908.” The treasurer instituted the proceedings and gave the required notice. The appellant, who owned seven of the assessed tracts, appeared and answered, alleging that the repaving was unnecessary and unauthorized, that no commissioners had been appointed by the common council to assess benefits and damages, and that one of the aldermen of the city who voted for the improvement was, in violation of the charter, financially interested in the repaving contract.

At the hearing the warrant and a certified copy of the assessment roll were received in evidence over the objection of appellant “as incompetent because there are no warrants, as required by the city charter, and because the report fails to show any proceedings to give the city council authority to order said assessment.” It was stipulated in open court that no commissioners had been appointed to make the assessment, that the street was formerly paved with cedar blocks and subsequently macadamized, and that such macadamizing was paid for by a special assessment, was subsequently' removed, and the present brick pavement substituted. There was some difference in the description of one tract as given in the assessment roll and as set forth in the answer, and it was stipulated that the description in the amended answer was correct, “and that all the proceedings herein may be amended so as to conform to the said description.” Upon this evidence a separate judgment was ordered and entered against each tract for the assessment levied against it.

Section 8, sube. 10, c. 92, p. 584, Sp. Laws 1881, as amended by section 38, c. 6, p. 313, Sp. Laws 1887, contains the provisions of the charter of the city of Stillwater authorizing the levying of special assessments to repave a street. It provides that, when the city council determines upon that or a similar improvement, it shall be the duty of the city engineer to make and present to it a report as to the proposed improvement, which is required to be published in the official paper, laid over until the next meeting of the'council, occurring at least one week after its reception of the report, at which time all persons interested may appear ánd be heard, and thereafter the council may adopt an assessment roll, which “may be in the following or any other form which the city council'may deem proper.” The form as given provides for the name of the owner, if known, description of land, and the amount of the assessment, terminating with the signature of the president of the council and of the city clerk. The assessment roll offered 'in evidence did not contain the name of the owner, and was not signed by the president of the cohncil, or attested by the city clerk; but the warrant to the city treasurer was signed by the mayor and clerk and recited the due adoption of the assessment roll.

' To give the council authority and jurisdiction to levy a valid assessment, it was necessary that the preliminary steps provided for in the charter should have'been taken. Overmann v. City of St. Paul, 39 Minn. 120, 39 N. W. 66; Sewall v. City of St. Paul, 20 Minn. 459 (511); Minnesota Linseed Oil Co. v. Palmer, 20 Minn. 424 (468); State v. McGuire, supra, page 88, 122 N. W. 1120. The jurisdiction of the district court to entertain the proceedings and adjudicate upon their validity would not be affected by the omission of any preliminary step to be taken by the council or engineer, and when appellant appeared and answered the court had complete jurisdiction to render judgment against the property, if the evidence produced at the hearing justified that result. City of Duluth v. Dibblee, 62 Minn. 18, 63 N. W. 1117. The charter of the city provides (section ,16, sube. 10, c. 92, p. 590, Sp. Laws 1881): “* * * And the assessment roll, and the record thereof kept by the city clerk, shall be competent and sufficient evidence that the assessment was duly levied and the assessment roll duly made and adopted, and that all other proceedings antecedent to the adoption of such assessment roll- were duly had, taken and performed as required by this charter. ■***’■’

' The warrant and assessment roll offered in evidence, while not precisely in the form given in the charter, were sufficient, in view of the charter provision that the council might adopt any form, to estabr lish prima facie the presumption that the preliminary proceedings requisite to the making of a valid assessment had been taken. State v. District Court of Ramsey County, 33 Minn. 164, 22 N. W. 295; State v. City of Hastings, 24 Minn. 78; State v. District Court of Ramsey County, 29 Minn. 62, 11 N. W. 133; City of Duluth v. Krupp, 46 Minn. 435, 49 N. W. 235; Wathen v. Allison, 213 Ill. 138, 72 N. E. 781. No evidence was offered to overcome this presumption; the appellant resting upon his objection to the evidence, the fact that no commissioners" were appointed to make the assessment, and his- claim- that one of the aldermen was pecuniarily interested in the contract. If commissioners were required, the fact, as stipulated, that none were appointed, would be sufficient to overcome the presumption of regularity; but the charter places the authority to order an improvement of this character and to levy , an assessment entirely with the city council. The necessity, for commissioners only exists when the improvement- as proposed contemplates the'taking of land for public-use. If, as is claimed^ one of the aldermen voting for the improvement was pecuniarily intérested in the contract, that fact would not 'invalidate the assessment. ' The propriety óf his conduct, as well as its effect, must be determined in some other proceeding to which he is a party. The presumption of regularity which followed the introduction of the-assessment'roll and the-warrant was-not-overcome. - • ‘

The trial judge made-orders for judgments against each tract separately, and six judgments were entered, in éach of which-'costs were included to- the fullest extent. There was only one assessment roll, one application-, one ánswer, and one hearing. The charter of the city; provides (section .36, c. 50, p. 538, Sp. Laws 1891) that' each report of the treasurer to the district court “shall constitute a separate proceeding or suit,” and, further, “that the court may, by rule or otherwise, direct how and in what form such proceedings and judgments may be entered or docketed.” In our opinion the provision that each report shall constitute a separate proceeding or suit is controlling, and the discretion- vested in the court' to direct the form of judgment does not go to the extent of authorizing separate judgments as to each tract. The method adopted was irregular, the principal effect of which was to increase the costs.

Ordered that the proceedings be remanded to the district court, with direction that upon application of either party the judgments so entered be vacated, and one general judgment entered confirming the assessment.

JAGGARD, J.

I dissent.