*1 2áO wit prosecuting record, especially reading A
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mеt, raises
when he and defendant
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whether there was
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To the instant case we
therefrom.
drawn
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ductions
new RE APPEAL F.
IN OF W. MEYER AND OTHERS. HASTINGS,
CITY OF APPELLANT.1 26,842, 26,841, 26,843, 26,844, 26,845, 26,846, 26,847, 26,848, 26,849, 26,850. Nos.
January 18, 1929.
1 Reported in
Hastings city of the class, and the improvement was made to L. c. pursuant 1919, p. 62, 65, 10 of which for provides § reassessment to cover the cоst whenever the or original any part assessment thereof set aside for any reason whatsoever. Section 12 gives any aggrieved person ap- “who peared and filed objеctions” an assessment or reassessment the right of the district court. appeal There has been a reassessment, and the objectors same again appealed to thе district court. There cases, are ten which were all tried as one. The decision against was city, .the finding the determinative being fact that the reassess- ment was made “without taking into cоnsideration the special bene- fits to property” objectors of the and “that the same was ar- and bitrary greatly exceeded the said property.” The by from the judgment orderеd pursuant finding. the city proved
At the trial the reassessment and nothing more. very witnesses proof which that was made, some them at on least, admitted cross-examination that the cost of thе paving per ground lot or ascertained, parcel each being first yard square its paving with the between charged was appellants owned testified, one of them “without street, middlе front and question “how much of the land” or the cash value to the regard in of it.” such front One pavement was with the property better and without contradiction that unequivocally testified witness was not considered damage property” or of benefits “question more against might assessment a lot be that “an possibility nor the consequence in “a confiscation of that lot was worth” than the evidence otherwise that There is no direct very property.” ordered reassessment did not council who members lot resulting charge against parcel eaсh make sure reassessment was not more than the benefits included ground to such lot. actually accruing objectors each case the assess- is evidence
There than the aсtual benefit to the For some property. greater ment is or argument, be from record gathered reason not to by any opposing not met evidence for the objectors city. *3 in convinced learned opposition evidence the trial judge direct The in its notwithstanding presumption favor, the the reassessment that, it hence he set aside. confiscatory; was city overrates the effect of the argument reassessment elements of which it did infallibility pos thereto not and attaches True, legislative act, accompanied by it was a all the usual sess. validity. sustaining presumption of Such an assessment or reassess “legislative judgment” property expresses specially is extent of the assessment. State ex rel. Oliver I. Min. benefited 151 N. 40, 41, 545, of 129 W. Ann. Cas. City Ely, 1916B, Co. v. Minn. 22 City Paul, of St. Minn. 494. But even Rogers though v. the 189; it largely legislative character, is must not violate the proceeding against taking the of prohibition private property for constitutiоnal just compensation. Charging private without prop purpose public improvement for a to an amount public beyond lien the a erty with ivould by property the be such a In taking. received re Street, Concord 148 Minn. Paving 329, for 181 N. W. Assessment
243
Litchfield,
382,
of
152 Minn.
In express right view the appeal, we need concern our- selves with еxtent which the determination of the matter council would be conclusive otherwise. But it may be noted in subsequent cases 22 ruling Rogers case, Minn. as to the conclusiveness of the legislative determination, has been qualified. example, somewhat For in State ex rel. Cunningham v. Court, 62, 65, District N. 133,W. it was said that the legislative power “depart must not from the rule prescribed, which * * * makes benefit derived from the *4 and measure the limit of the as to particular assessment each tract If it such appears land. that rule has not been followed, the cannot stand.” And in assessment State ex rel. Shannon v. Judges 51 Minn. N. W. Court, District 55 800, N. 122,W. it question particular property while whether that the observed, judg- first is instance to what extent and is benefited make their duty it is to the assessment and that those whоse fraud or demonstrable mistake in the absence determination, and, if judgment, must exercise their conclusive, yet “they fact, an so, not done but have substituted they have that appears it of their their work can- judgment, rule instead inflexible arbitrary, not stand.” in the instant we to mean finding case construe determinative arbitrary applied an rule was without reference that, and that
just shown, assessment and benefit. As we have between relation to the testimony on to gave called sustain the assessment very witnesses on this the two way, record, escaping There is no that' effect. to it and arbitrary that was fatal to reassessment—one findings to the special benefits regard property without made it greatly the other that exceeded and objectors, property. affirmed.
Judgment (dissenting). J.C. Wilson, recognize legal they I and principles stated, I dissent. If I convinced it technically merely to affirmance. lead I trial, a would concur. meant new' when not asked. have granted
A is seldom it is But we new trial so, do and rare cases have done so. I think the to we power probable injustice may follow affirmance interest public reason us a prompt grant is sufficient new trial. Cer- herein must be available refute tainly might evidence confiscation, claim of and it does to me claim not seem that the objectors is of such character as to nature entitle them court, at hands of the A man for his any indulgence pay should of a local in front just public of his valuable proportion In casеs of this character, is not so property. abstract it is enforcement of rules as to see that sub- rigid much consequences done. justice opinion and its indicate stantial through objеctors are, technicalities, escaping just to me *5 whom it should upon to be those paid will have obligation fall. n.ot J. (dissenting).
Hilton, of the Chief Justice. in the views I concur Application por Reargument. Upon was filed: following opinion On March Stone, J. rehearing is denied. The burden of the
Appellant’s petition that our all petition alleged decision does considеr errors That claim in assigned support appeal. turn is reducible to L. c. point 1919, p. 62, 65, 11, requires objector an to § with an assessment file the clerk a written statement of his ob- jections аnd that objections specified all not so shall be deemed waived. claim is that that section applies to a reassessment as well original assessment and no written objectiоns filed to the reassessment here involved. The record does not show whether written objections were or were not filed, case went to decision on the merits without any objection on that ground. The point was not made even motion for a new trial and was not thought of apparently until the this court. Then of course it was too late.