2 Minn. 295 | Minn. | 1858
By the Cov/rt
The grant of power to tbe Legislature by tbe sixth Section of tbe Organic Act of Minnesota, conferred upon that body as ample powers over all subjects as compatible with tbe Territorial existence as is possessed by a State, including tbe power of taxation in all its aspects. Tbe assessment of the expense of grading a street in the City of St. Paul upon tbe lots fronting upon such street under Section 5, Chapcer 'T, of tbe Charter of that City is an exercise of tbe taxing power of the government and not tbe right of eminent domain. This can hardly be considered an open question since tbe decision in tbe case of People ex rel, Griffin vs. The Mayor, &cc. of Brooklyn, 4 Coms. 419. Tbe reasoning of tbe Court in that case is conclusive to my mind and removes all doubts about tbe power conflicting with tbe provisions of tbe Constitution prohibiting tbe taking of private property for public use without compensation: I shall not attempt to fortify tbe position by reasons, as tbe doctrine is too well settled.
In order to make tbe lots fronting upon a street chargeable with tbe expense of grading it, every act wbicb tbe statute requires tbe city officials to do, must be fully performed or an assessment will be void. “ Every Statute in derrogation of tbe common law to divest tbe title of one and transfer it to another must be strictly pursued or tbe title will not pass. This is a mere naked power in tbe corporation, and its due execution is not made out by intendment; it must bejproved. It is not a case for presuming that public officers have done their duty, but what they have in fact done must be shown,” Per Bronson J. Sharp vs. Spier, 4 Hill, 86, wbicb was an action of ejectment, tbe defendant relying upon a title under a tax sale for tbe making of a well and pump in tbe City of Brooklyn. Tbe onus of proof rests on tbe purchasers under such sales, and “ be must show, step by step, that every thing has
The numerous cases cited by Justice Bronson fully sustain the doctrine he lays down.
Now what are the Street Commissioners of St. Paul to do before they can grade a street in that City, and charge the expense upon the property fronting upon it ? After determining that the grade is to be made, they are to estimate the whole expense of it, and also the proportion to be assessed and charged to each lot, and the number of cubic yards to be filled in or excavated in front of each lot, and file the estimate with the City Comptroller, for the inspection of the parties interested. They are then to give notice to the owners or occupants of the land fronting upon the street by advertisement in one of the city papers of ten days requiring them to do the work mentioned in the notice within a reasonable time, and if the party owning the property does not do the work, then the Commissioners can contract for it. The making the estimate, and giving notice are very important conditions precedent to the letting of the work by the Commissioners, and an omission to do either would vitiate the assessment upon the lands of the expense of the work, and all subsequent proceedings under it. Sess. Laws, 1854, p. 30, Sec. 6.
The Statute designs giving the contractor two remedies under his contract for the labor performed. First, by having the amount due him assessed upon the lots, and collected for his use as other taxes are collected. Secondly, by a personal action against the owner of the lands. Same Act Sec. 10, as amended by Sess. Laws of 1856, p. 35, Sec. 17; and again by Sess. Laws of 1857, extra, session, p. 72, Sec. 1. If he adopts the first method, and the collection of the tax is resisted, or title under the tax sale is brought in question at any time it will be necessary to prove that the conditions precedent were all performed, or in other words that the estimate was ■ made and filed, and the notice given before the contract was let, and that the contract was properly countersigned by the Comptroller and all other acts fully performed or the tax cannot be sustained. Now if the contractor determine to pursue the remedy by personal action against the owner under the Stat
The complaint in this action does not show these acts to have been done by the street Commissioners of St. Paul before they let the contract, nor that the contract was countersigned by the Comptroller, and consequently contains no cause of action against the Defendant. This alone would suffice to dispose of the case, but as the Court below decided it upon other points, and as several other questions are clearly presented by the demurrer, in consideration of the importance of the questions, we will pass upon them all.
After the contract for work of this kind has been properly let by the street Commissioners and the work completed, the Commissioners are to give to the contractor a certificate under their “grants” (evidently meaning “hands”) stating the amount of work done by the contractor, which means the amount of excavating or filling in, represented by cubic yards, as in the estimate required by Section 6, or such other standard as is adopted in the contract, and adapted to the nature of the work, and the value of such work in dollars and cents.
The estimate and the statements in the certificate are checks upon each other for the protection of the owner of the land. The certificate should also contain the description of each lot or parcel of land upon which this expense is chargeable and the proportion chargeable to each, both in amount and value, in the manner adopted in the original estimate. There should be but one certificate for each contract. The owner of the land has until the making out of the next annual assessment Eoll after the issuing of the certificate, ■ to pay the amount charged against his land, then if the same is not paid, the contractor can have the amount which by said certificate is apportioned against each lot, assessed against the same on the Eoll, and collected for his use and benefit as other taxes are collected, by virtue of the City Charter.
The Court below held that the amendment of 1857, allowing the contractor or the endorsee of the certificate to sue the own
The effect of the amendment was not overstated by the Court below: under it two persons owning adjoining lots could be treated in a very unequal manner. The lands of one could be assessed and sold with all the advantages to the owner of redemption under the tax sale, which would be a proceeding entirely m rem, while his neighbor could be prosecuted in q civil action, and all his property real and personal made subject to the judgment and execution, and if real estate was sold to satisfy the judgment, he would have but the time to redeem allowed on such sales: it is useless to enumerate all the opportunities for oppression and injustice that such a power placed in private hands would allow, as I am clearly of the opinion that it is not in the power of the legislature to say that taxes shall be collected of one citizen by one procees, and of another by one entirely different, and it follows a fortiori that what it could not do directly it cannot make dependent upon the will of a private citizen.
I think the clause allowing the holder of the certificate to prosecute the owner of the land by ¡civil action, as the statute stands, is invalid, andjan action cannot be maintained under it at any time.
The judgment of the Court below is affirmed.