151 Minn. 115 | Minn. | 1922
Lead Opinion
Under the power conferred by chapter 128, p. 180, Laws 1915, the city council of the city of St. Paul established a restricted residence district along Summit avenue for a distance of some four miles, a
The action of the city council in establishing this district is called in question. It appears that where expensive apartment buildings stand on Summit avenue the land was not included in the district.
Also, that on the south side of the avenue between Prior and Cleveland avenues no lots adjacent to Summit were taken in. The legislature committed the establishment of restricted districts to the judgment of the city council, and courts will not disturb its decision, unless plainly contrary to the law under which it was required to act. There certainly was nothing arbitrary in not including property upon which already were expensive structures not suitable to be in a residential district. As to the property between Prior and Cleveland avenues, the explanation of its omission, suggested at the trial, is that a proceeding had been begun prior to the one before us, in which that and other adjacent property was sought to be set apart as a residential district, but which proceeding had been abandoned at the time of the trial herein. This situation presents no ground at all for judicial interference with the district established. The city council is at liberty at any time to make the omitted territory a residential district by itself or in connection with other territory.
An assignment of error challenges the propriety of charging the council appraisers’ fees and the cost of the proceeding against the benefits assessed. The law is silent in respect to the defrayal of the expenses, except that on appeal the compensation of the appraisers appointed by the court may be taxed as costs against appellant (subdivision 12, § 3), but, there being no provision for the payment of the expenses connected with the establishment of a residential
There are rulings on the exclusion and the reception of evidence complained of. They have been examined, but we find nothing therein that is erroneous or prejudicial to appellants. In appeals of this nature, when the court is authorized to interfere with the determination of the appraisers only if it is proven that they acted fraudulently, arbitrarily, upon a demonstrable mistake of fact or an erroneous principle of law, it is plain that the admission or rejection of some testimony of experts as to damages or benefits can have little or no effect.
The learned trial court refused to appoint appraisers as demanded by appellants, holding the determination made by the appraisers appointed by the city council final as to damages and benefits, unless, cn appeal to) the district court, it was shown that those appraisers acted arbitrarily, or upon an erroneous principle of law or a demon
The procedure in awarding damages and assessing benefits is found in section 3 of said chapter 128, p. 180, Laws 1915. It- is first provided that the city council shall appoint five appraisers to view the premises and appraise the damages which may be occasioned by the establishment of. the restricted residence district. ' It is to be noted that this appointment is made without notice to parties interested, and without their being heard upon the qualifications of the appointees. The appraisers shall give notice by publication of the time and place where they will meet to view the premises and appraise the damages and assess the benefits (third subdivision).
A copy of the published notice must also be served upon the'person in possession of the tract of land affected (fourth subdivision).
“At the time and place mentioned in the notice, the said appraisers shall meet and thence proceed to view the premises, and may hear the evidence or proof offered by the parties interested and may adjourn from time to time for the purposes aforesaid. When their view and hearing shall be concluded, they shall determine the amount of damages, if any, suffered by each piece or parcel of land of which each piece or parcel of land in the district is a part. They shall also determine the amount of benefits, if any, to each such piece or parcel of land. If the damages exceed the benefits to any particular piece, the excess shall be awarded as damages. If the benefits exceed the damages to any particular piece, the difference shall be assessed as benefits, but the total assessment for benefits shall not be greater than the aggregate net award of damages” (fifth subdivision).
The appraisers must file a report of their doings with the city clerk wherein they shall state costs of the proceedings (seventh subdivision).
Then a notice must be given of the time when the report will be considered by the council which “shall have power in their discretion to confirm, revise or annul the appraisement and assessment
“If not annulled or set aside, such awards shall be final, and shall be a charge upon the city, for the payment of which the credit of the city shall be pledged.” If any appeals are taken from the order confirming the appraisement, the payment of the damages awarded shall be extended until 60 days after final determination of all appeals taken, and, in case of any change in the awards or assessments upon appeal, the council may, within 60 days after such determination, by resolution set aside the entire proceeding (ninth subdivision).
The rights acquired by the proceedings shall vest absolutely in the city (tenth subdivision).
“Any owner of land within said district who deems that there is any irregularity in the proceedings of said council, or action of the appraisers, by reason of which the award of the appraisers ought not to be confirmed, or who is dissatisfied with the amount of damages awarded to him or the assessment thereon, may, at any time before the time specified for the confirmation of the award and assessment, * * * file with the city clerk in writing, his objections,” and thereby secure the right to appeal to the district court by serving a specified notice. “There shall be no pleading on any appeal, but the court shall determine in the first instance whether there was in the proceedings any such irregularity or omission of duty prejudicial to the appellant and specified in his written objection that as to him 'the award or assessment of the appraisers ■ ought not to stand, and whether said appraisers had jurisdiction to take action in the premises” (eleventh subdivision).
Then follows the here important provision of the twelfth subdivision: “The case may be brought on for hearing on eight days’ notice, at any general or special term of the court, and the judgment of the court shall be to confirm or annul the proceedings, only
As we construe the foregoing provisions, a landowner, who' has filed objections to a confirmation by tie city council, may appeal, and, if tie court determines that tie proceedings are valid, he may, nevertheless, have a reappraisement by appraisers appointed by- tie court whenever one of tie objections filed by him complains of tie amount of damages awarded or benefits assessed as to his land. Tie last part of tie eleventh subdivision above quoted as to tie question to be determined by tie court, in tie first instance, refers, not to tie amount awarded or assessed by tie council appraisers, but to tie proceedings themselves as to whether there are irregularities therein which prevented tie council appraisers from taking any valid action. If tie proceedings are found valid without considering tie objector’s complaint in respect to damage or benefits, tie court, under tie last provision of subdivision 11, siall let them stand, and then proceed, under subdivision 12, to appoint appraisers if tie appellant has, in his objections, complained of tie damages or benefits.
The language in tie twelfth subdivision is mandatory as to tie appointment by tie court of reappraisers in the given case, and for a hearing as to tie disinterestedness of suci appraisers. And there appears good reason why this should be so. This law combines the
Aside from the explicit language that the court, on appeal, shall appoint appraisers to determine damages and benefits anew, where the objections filed include a complaint as to damages awarded or benefits assessed, consideration should be given to the apparent difference in the wording of the directions to the appraisers appointed by the council and to the appraisers appointed by the court. As to the former the direction is that they “may hear the evidence or proof offered by the parties interested;” as to the latter it is they “shall proceed to view the premises and to hear the parties interested with their allegations and proofs pertinent to the question of the amount of damages or benefits.”
It is true that in statutes courts sometimes construe the word “may” as mandatory as the word “shall.” But there is no occasion for such a construction here, for we think the appraisers appointed by the council do not constitute such a tribunal as our law intended to invest with full power to authoritatively hear and determine a matter. The party interested has ordinarily some rights to be heard upon the disinterestedness and general qualifications of triers of fact, unless such triers are selected by virtue of being elected to some office or position. This law assures this right in respect to the ones appointed by the court only. This would seem to be a valuable right, the denial of which might challenge the validity of the award or assessment on constitutional grounds. In all cases
In City of St. Paul v. Nickl, 42 Minn. 262, 44 N. W. 59, the board of public works appraised and the court reviewed the amount of the appraisal.
In Bruggerman v. True, 25 Minn. 123, the law provided for an appeal to three members of the board of county commissioners, and it was held this secured impartial appraisers, since they were duly elected officials.
In McKusick v. City of Stillwater, 44 Minn. 372, 46 N. W. 769, the act provided for an appeal on the question of damages to appraisers appointed by the court, and the same is the case of State v. City of Montevideo, 142 Minn. 157, 171 N. W. 314; the charter provisions there involved give the landowner the right upon appeal to have a reassessment of damages by court appointed appraisers as stated in the opinion.
The foregoing consideration naturally leads to the conclusion that the legislature advisedly used mandatory language when assuring the owner of the right to have final appraisers appointed by the court and as to whose qualifications he may be heard. We hold that an interested party in a proceeding under chapter 128, p. 180, Laws 1915, is entitled to have his damages awarded and benefits assessed by court appraisers, if he seasonably files proper objections and appeals to the district court from the city council’s order of confirmation.
The order, insofar as it denied appellants a hearing on the question of damages by appraisers appointed by the court, is reversed, and the cause remanded for further action in eonformity.herewith.
Reversed and remanded.
Concurrence Opinion
(concurring in result).
I concur in the result. I agree that on appeal to the district court the statute gave the appellant the right to a reappraisement by appraisers appointed by the court and gave the parties the right to be heard on the appointment' of such appraisers. The question whether a party has a constitutional right to be heard upon the qualification of the appraiser selected, does not seem to me to be involved in this case. The legislature has not denied the right; whether it could do so is a moot question.