30 Minn. 294 | Minn. | 1883
This is an action for equitable relief against special assessments charged upon the property of the plaintiffs on account
The work consisted of grading Mount Airy street from A to B, and from C to D, and of grading Broadway from B to E. For convenience we will designate that portion of Mount Airy street from A to B as the western section, and that from C to D as the eastern section. It appears from the complaint that that portion of Mount Airy street from B to C, separating the eastern and western sections referred to, is a rough, untraversable territory, unused and unimproved as a street or highway. The work on this eastern section consisted of making a deep cut in that part of the street, and all of the material taken therefrom was used in grading L’Orient street, none of it being used or required on the other portion of Mount Airy street or of Broadway; nor was the material taken from the western section of Mount Airy street or of Broadway used or required upon the eastern section of the former street. ' It is further alleged in the complaint that the eastern section of Mount Airy street is distinct and separate from the residue of such improvements, and is a distinct and separate local improvement, and of no benefit to real estate on the western section of said street or on Broadway, and of no special benefit to the plaintiffs’ property, the same not being in the locality of said eastern section. It is further alleged that the improvement on Mount Airy street
We have to determine whether the complaint shows that the assessment was invalid, and whether the plaintiffs are entitled to equitable relief. We will first consider whether the assessment was unauthorized and invalid because it included the cost of the separate and distinct improvement designated as the eastern section of Mount Airy street. The statute of 1874, authorizing the assessment of the cost of local improvements upon the property specially benefited thereby, does not authorize the prosecution of two or more separate and independent works of public improvement as an entirety — the letting of the whole in one entire contract, without apportionment of the price of the distinct parts, and the assessment of the gross cost of the whole upon the property deemed to be specially benefited. No such authority is expressly given by the act; and from the general tenor of it, and from the language used in prescribing the procedure, the statute seems to contemplate one improvement, and not several, as being prosecuted in any single proceeding. Again, by the amendment of 1875, it was enacted that “two or more streets may be ordered to be graded at the same time, so that the material taken from one street may be used in filling others.” This amendment involves a legislative construction of the act as it stood prior to the amendment, to the effect that it did not authorize the grading of two or more streets as one entire improvement. If the grading of several streets might not be thus prosecuted as an entirety under the act of 1874, there is nothing in the act indicating that several and distinct improvements of any other kind might be so united. Whether the pur
L.et us consider, in this connection, the effect of the amendment of 1875. That amendment must be regarded as authorizing the grading of two or more streets, under the conditions named, under one contract, and as an entire proceeding. To construe it as merely giving authority to prosecute the grading of several streets contemporaneously would make the enactment of no effect, for that might have been done before. The words, “so that the material taken from one street may be used in filling others,” are a limitation of what goes before, and are not merely the assignment of a reason by the legislature for enacting the law. Such recitals of reasons are not embodied thus in the midst of the enacting clauses of a statute. The effect of the enactment is to authorize the grading of two or more streets as one improvement, when, in the proper prosecution of the work, the material taken from one street may be used in filling the others. To such a case is such authority limited, for expressio unius est exclnsio altering.
The facts pleaded show that the grading of the eastern section of Mount Airy street, in connection with the other improvements, was not authorized by the amendment of 1875, nor, as we have construed the act of 1874, was it authorized thereby. The fact that it was a part of Mount Airy street is not inconsistent with the allegation that it was a .separate and distinct local improvement. It follows that the assessment is invalid if the question as to the character of the improvement and the validity of the assessment is open to inquiry.
It is claimed, however, that the assessment made and confirmed is
Anticipating tbe further proceedings which may be taken in tbe case, we advert to tbe facts, as pleaded, relative to the grading of Broadway and Mount Airy street as one improvement. It is apparent, from what has been already said, that the mere fact that tbe two streets were graded as one entire improvement does not show tbe assessment to have been invalid. Sucb a proceeding was authorized, under the conditions named in the amendment of 1875, and it does not appear that those conditions did not exist with respect to Broadway and tbe western section of Mount Airy street. While there may be qualifications upon tbe right to grade several streets together, and make assessment of tbe cost of the whole, we are not called upon to define tbe nature and extent of sucb qualifications. Tbe allegation
Gilfillan, C. J., because of illness, took no part in this case.