40 Minn. 22 | Minn. | 1889
Certiorari, to review the action of the district court in confirming a special assessment of the board of public works of the city of Duluth, to defray the expense of a local improvement, pursuant to section 10, chapter 5, of the city charter, (Sp. Laws 1887, c. 2.) Notwithstanding that the charter provides that when the district judge makes an order confirming such an assessment, the assessment-roll, and all things contained therein, shall be res adjudicates, and no appeal shall be allowed from the assessment, yet ’the proceedings may be reviewed on certiorari. To deprive parties of this right, if it can be done at all, the intention to do so must be expressed with unequivocal clearness. Dill. Mun. Corp. §§ 440, 926; Tierney v. Dodge, 9 Minn. 153, (166 ;) City of St. Paul v. Marvin, 16 Minn. 91, (102.)
The district judge, in obedience to the writ, makes return that the following constitute all the proceedings taken or had before him in the matter: (1) The board of public works submitted the assessment, [Exhibit A,] which they asked to have confirmed. Indorsed upon the assessment-roll is the approval of the assessment by the board, and stating that it was made to defray in part the expense of grading and paving Superior street, and the construction of certain storm sewers, among which was one on First avenue west, from St.
From this very meagre showing, it is quite difficult to understand the situation or ascertain the facts. Probably both court and counsel, being familiar with the situation, took notice of and assumed facts not disclosed by the record. If the board of public works undertook the work of diverting a natural stream as an independent enterprise, and not for the purpose of draining the city and as a part of a sewerage system, they certainly had no authority under the charter for making assessments for any such improvements. But, on the other hand, if the proper drainage of the city for purposes of public health, the protection and improvement of streets, or the like, required that a stream running through the city should be diverted from its natural course, taken into and carried off by a sewer, then we have no doubt that the city had, under its authority to construct sewers and drains, ample power to do so, and to levy assessments therefor
Supplementing the record by the statements made by the relators themselves in their petition for the writ, and in their brief, we gather the following outline of the situation: First avenue west, in which the sewer was constructed, runs at right angles with Superior street from some point on the hill, near Cascade square, down towards the lake. Into the sewer built in this avenue a considerable territory, including relators’ lots, would be drained. On the hill, near Cascade square, rises a small streamlet known as “Clark House creek,” which in its natural course ran irregularly towards the lake in the same general course as First avenue west, crossing the lots of relators.
Order affirmed.