66 Minn. 114 | Minn. | 1896
Appeal from an order overruling a general demurrer to an amended complaint, which contains many allegations purposely inserted that the views of this court might be obtained upon the principal question of law, without first trying the questions of fact.
From these allegations it appears that, prior to any of the proceedings now before us, a public street had existed in the city of St. Paul known as “East Third,” running from Earl street easterly to White Bear avenue, 1^ miles. From this avenue to the city lim
It stands conceded that the gradient lines on East Third, from Earl street to White Bear avenue, were established June 16, 1891, about two months prior to the commencement of the condemnation proceedings through which the city acquired land for slopes; and it also stands admitted that on so much of the street as had been laid out on the Hennessy land gradient lines were not established until September 22, about one month after the passage of the final order directing that the grading be done; and, further, that, when the final order just mentioned was passed, the condemnation proceedings had not been consummated, for the confirmation did not take place until December 14, 1891.
Stated in a general way, the position of counsel for appellant city is that a contractor cannot recover for work done in grading a street under a contract with the city, unless the permanent grade of the street has been established, and the title to the property to be used has been acquired, before the board of public works has been directed to proceed with the work. If all of these preliminaries are not complied with before the council determines to proceed with the improvement, a contract subsequently entered into for the performance of the work is ultra vires; prejudice to the public interest will be presumed; and the city can successfully resist any attempt to recover on the contract. If this be the law, it is immaterial whether the city orders a suspension of the work before the contract is fully completed, or allows it to proceed until finished, and then, having induced the contractor to invest his money and his labor, appropriates and enjoys the benefit thereof, refusing to make compensation, because of an irregularity in the order on which the preliminary steps were taken, for which irregularity its officials were alone responsible. An injustice so great as this would be should not be favored.
The cases on which the city relies as sustaining its contention are State v. District Court, 44 Minn. 244, 46 N. W. 349; State v. District Court Judges, 51 Minn. 539, 53 N. W. 800, and 55 N. W. 122; and Sang v. Duluth City, 58 Minn. 81, 59 N. W. 878. In the Lawton case, which was certiorari to review an assessment proceeding under this same charter, it was said, obiter, that the establishment of gradient lines, was a prerequisite to the right of the city council to make any order in reference to the grading of the street. In the Shannon case (also
Neither of these cases is authority for the contention of counsel for defendant city. The first two mentioned may be regarded as authority for the proposition that a failure to establish a street grade before instituting assessment proceedings is a serious omission, and, if interposed seasonably, a sufficient objection to the confirmation of the assessment. And in the later case of Fitzhugh v. Duluth City, 58 Minn. 427, 59 N. W. 1041, it was held that an omission to establish the grade of a street before instituting assessment proceedings was an irregularity only, and did not go to the jurisdiction of the
This is altogether different, and falls very far short of sustaining the contention of the city that a contract to grade a street on which gradient lines had been established when bids for the work were called for, and when the contract was entered into, is absolutely void if such lines had not been fixed prior to the passage of an order by the council directing that the improvement be made, or if the condemnation proceedings to obtain an easement for slopes on the abutting land had not been fully completed when the order for grading was made. These irregularities may never be urged as against an assessment, and there comes a time when they cannot be. Should we adopt the views of counsel, we should put it in the power of the city authorities to repudiate the contract, and decline to pay a contractor, although every dollar of the amount assessed upon property benefited by the improvement has been paid into the city treasury; for, if such a contract is void, it must be for all purposes and under all circumstances.
The city further claims that in no event can plaintiffs recover, because the contract provides that the contract price shall be payable out of funds collected through assessments, which provision is in accordance with the terms of the charter. Sp. Laws 1887, c. 7, subc. 7, tit. 1, § 3. We need not go into a general discussion as to this claim, because it is admitted by the demurrer that the city has collected by assessments made for this improvement, and has in its possession, nearly $4,000, and as to this amount the complaint states a good cause of action. But on this question attention is called to Moritz v. City of St. Paul, 52 Minn. 409, 416, 54 N. W. 370.
Order affirmed.