10 N.W.2d 722 | Minn. | 1943
Lead Opinion
The land in question was benefited by and assessed for the construction of Consolidated Ditch No. 1 and Judicial Ditch No. 78. Petitioner paid this assessment. The ditch assessment in question purported to be one for the repair of said ditches and also of Judicial Ditch No. 64.
On July 24, 1941, the county board ordered that "repair assessments be levied against all lands originally assessed for the construction" of the ditches "as provided by Section 6840-53, Mason's Minnesota Statutes of 1927 as more particularly appears in a copy of said Order on file in the office of the County Auditor." At the trial the county auditor produced what purported to be the order referred to. The order recited that the accounts of the ditches in question were or would be overdrawn and that there were no funds available for the payment of the maintenance or repair of the ditches. It ordered "that an annual assessment be levied against *492 all the lands originally assessed for benefits in the proceedings for the establishment and construction" of the ditches in question "in a sum not to exceed Thirty (30) mills on each dollar of such originally assessed benefits, as provided by Section 6840-53, Mason's Minnesota Statutes, 1927."
The petition recites that, pursuant to the order, the county auditor levied an assessment against the lands of petitioner for the year 1941 payable in 1942 in the sum of $19.15 for Consolidated Ditch No. 1 and $4.10 for Judicial Ditch No. 78.
Numerous objections are made to the purported ditch assessment to the effect that the county board had no authority in law to make it; that the assessment was unauthorized because of the fact that there was to the credit of the ditches in question, available for use in making repairs, an amount in excess of three percent of the total original assessment of benefits; and that, because of the facts stated, the purported assessment was wholly illegal and void. The county contends that the objections cannot be raised in this proceeding and that the petitioner's exclusive remedy is either by appeal from the action of the county board or by writ ofcertiorari.
The court below sustained the contentions of the county and denied petitioner any relief. Petitioner appeals.
1. Under Minn. St. 1941, §
It is the duty of the county auditor "following thelevying of such assessment" (italics supplied) to enter the amount thereof upon the tax lists against the lands affected, to be collected in the year following in the same manner as real estate taxes. To prevent abuse of power and to limit its exercise to present necessities, it is further provided: "Whenever the amount in the general ditch fund standing to the credit of any drainage system, available for use in making repairs, shall exceed 3 per cent of the total original assessment of benefits, no further assessment for the purpose of creating such fund for general repairs shall be made until such fund shall have fallen below said percentage."
It is the function and duty of the county board under sub. 3 (subsection [c]) to determine the rate of any assessment for ditch repairs. The words "not exceeding 30 mills" are in the nature of a ceiling on the amount of assessments beyond which the county board cannot go. As used in the statute, the words "not exceeding" are words of limitation. City of Kingsville v. Meredith (5 Cir.)
The statute, subject to the limitations therein contained, vests the county board with discretion to levy an assessment less than, but not exceeding, 30 mills. The assessment may be a fraction of a mill or it may be the full 30 mills, dependent on the amount required to be raised. Where there is an amount to the credit of the ditch fund available for use in making repairs, the county board is required to take it into consideration in fixing a rate so as to keep within the three percent limitation. The county board is required to exercise its discretion by determining the definite rate of a particular *494 assessment. The language of the statute is that it shalllevy an assessment at a rate. It is, therefore, mandatory that a particular rate be determined by the board.
The power to levy an assessment is a legislative one, and the levy of an assessment is a legislative act. Lien v. Bd. of Co. Commrs. of Norman County,
2. The order for the assessment left it to the county auditor to determine the rate of the assessment. The county board simply passed on to him the determination of a matter which was its sole *495
function and duty. The power to levy assessments for the construction and repair of ditches is a delegated legislative power. Dowlan v. Sibley County,
3. It is, of course, elementary that a valid levy is essential to a valid tax or assessment. Where there is no valid levy the county auditor is unauthorized to supply the deficiency. The county auditor is without power to levy taxes and assessments. State v. Republic Steel Corp.
4. Petitioner was entitled to have determined in these proceedings the legality of the assessments spread against her property. The same defenses may be asserted by petition under Minn. St. 1941, §
The petitioner's remedy was not by a prior review of the alleged assessment, either by appeal or by certiorari. The statute authorizing the assessment does not provide for an appeal. Hence that remedy was not open to petitioner. Neither does it provide for review by certiorari. Petitioner was not entitled to certiorari, not only because the remedy is not authorized by the statute, but also because a property owner's defense assailing on the merits the validity of an assessment can be asserted by him in the proceedings to collect it as part of his taxes. In State ex rel. Brown v. Board of Public Works,
Objections to a ditch assessment that could have been raised in the ditch proceedings could not be interposed by answer under the prior, nor can they be by petition under the present, law. The rule is limited to those cases where the proceedings themselves afford the landowner a remedy, as they do by an appeal from an assessment in the proceedings for the establishment and construction of a ditch and in those for widening, deepening, and extending one. In re Delinquent Taxes, Aitkin County,
"This section of the general tax laws is valid, and applies to the proceedings to enforce the collection of ditch liens. It must be liberally construed, for by its provisions every material right of the property owner is under the protection of the court, and he is held to have waived only such technical objections as go merely to the regularity of the proceedings and do not affect the merits of the tax."
In the instant case the landowner's objection goes to the merits. It is that the ditch assessment is entirely null and void. There having been no opportunity for a prior review (in fact there was nothing to review for lack of any assessment at all), petitioner is entitled *498 to contest in these proceedings the validity of the alleged assessment.
Since the purported assessment is null and void, petitioner is entitled to judgment to that effect.
Reversed with directions to enter judgment that the ditch assessment in question is null and void.
Addendum
The county appeals from the taxation of costs and disbursements in favor of petitioner by the clerk of this court. The question is whether the court can and should allow petitioner her costs and disbursements.
Minn. St. 1941, §
"If the tax so determined shall be less than the amount thereof as levied, the court may, in its discretion, award disbursements to the petitioner, which shall be taxed and allowed and be deducted from the amount of the taxes as determined. If there be no judgment for taxes, a judgment may be entered determining the right of the parties and for the costs and disbursements as taxed and allowed."
It is clear that a successful petitioner may be awarded costs and disbursements under the statute. In the instant case petitioner was awarded judgment that the purported ditch assessment attempted to be collected as part of the taxes against her land was illegal. There was and could be no judgment for such taxes. Petitioner has been put to considerable expense in freeing her land from what was clearly an attempted illegal exaction. It is our opinion that the legislature intended that in such a case the petitioner should be allowed costs and disbursements.
The clerk's taxation of costs and disbursements is affirmed. *499