State ex rel. City of St. Paul v. District Court, 75 Minn. 292

75 Minn. 292 | Minn. | 1899

CANTY, J.

The city of St. Paul applied to the district court for judgment for certain delinquent special assessments on certain real estate claimed to be specially benefited by the establishment of Phalen Park, which assessments, were levied to pay the cost of condemning land for the park. The respondents (130 in number) appeared, answered, and objected to the entry of judgment on various grounds. On the hearing, the court denied the application for judgment. Thereupon the city sued out a writ of certiorari in this court, and the proceedings in the court below were brought up in the return.

1. While a public park is, to some extent, a general benefit to the whole city, it is also, as a general rule, a special benefit to the locality or part of the city in which it is established. The extent of these special benefits is a question of fact to be determined in each particular case, and, of course, the property specially benefited cannot be assessed for more than the amount of such special benefits. But, up to this amount, it may be assessed for such special benefits, even though the park is also a general benefit. See Steiner v. Sullivan, 74 Minn. 498, 77 N. W. 286. In such a case, the legislative authority has a very extensive discretion in determining whether the expense of the improvement shall be defrayed by a special assessment or a general tax, or partly by each.

2. There is nothing in the claim that Sp. Laws 1891, c. 35, permits the board of public works to assess as benefits more than the amount which the property assessed is actually benefited by the improvement. The statute will not bear that interpretation.

3. This chapter 35 provides that, when the board of park commissioners of St. Paul determine to take any tract of land for a park, they shall do so by resolution, and shall thereupon make- an order directing the board of public works to determine the amount of damages or compensation to be paid for the land so taken, and after deducting the amount of such compensation, to be paid out of the general park fund, to assess the balance on the property to be benefited. It is further provided that a copy of the resolution and of the order shall be certified to the board of public works.

Section 26 provides that the assessment for benefits shall be finally confirmed by the board of public works within four months after receiving the certified copies of such order and resolution from the park board. In this case the assessment was not confirmed within the four months, or until more than nine months after receiving the copies of the order and resolution from the park board. We are of the opinion that tbe provision in the statute requiring the assessment to be confirmed within the four months is mandatory, and not directory, and that at the end of the four months the board lost, jurisdiction to confirm the assessment. Where the purpose of the statute is merely to prescribe a prompt and orderly method of transacting public business, a provision designating the time within which a thing shall be done is generally construed to be directory; but, when the provision is intended for the benefit of particular individuals in proceedings in invitum, it is generally construed to be mandatory. In our opinion, the provision here in question is of the latter kind.

The statute provides that, on receipt of the order from the park board, the board of public works shall give 20 days’ notice of the time and place of the meeting for the purpose of making the assessment. All persons interested may appear and be heard. The board shall determine the value of the real estate to be condemned, and assess the benefits therefor, and, when the assessment is completed, the board shall give 10 days’ notice of that fact, and that, at a time and place specified, the board will meet for the purpose of hearing objections thereto, that objections may be filed and the matter heard.

When the assessment is confirmed the clerk of the board shall give notice of that fact, and any person who has filed objections to the assessment as aforesaid may, within 10 days thereafter, appeal to the district court from the order confirming the assessment. It is further provided that each of these notices shall be given by one publication of it in a newspaper. No personal notice is required., Then the party interested must watch for these published notices, and learn, at his peril, what steps are being taken by the board.’ But the statute has placed a limit on the time during which he may be thus kept watching in order to have an opportunity to defend his rights, and has limited that time to four months. Clearly, this provision of the statute is intended for the benefit of the persons whose property may be assessed for special benefits resulting from such taking, and it is immaterial whether there are 130 or only one of such persons.

4. [Respondents contend that the act in question is unconstitutional, because it provides for double taxation, as did the act passed on in State v. District Court for St. Louis Co., 66 Minn. 161, 68 N. W. 860. We cannot so hold. Section 22 of said chapter 85 provides :

“If the damages to any person be greater than the benefits assessed, or if the benefits be greater than the damages, in either case the said board of public works shall strike a balance and carry the difference forward to another column, so that the assessment may show what amount is to be received or paid by such owners respectively, and the difference only shall in any case be collectible of them or paid to them.”

Clearly, this section does not provide for assessing benefits twice on the balance of the parcel of land remaining after a part of it is taken for the park, but expressly provides to the contrary. Even if the act did provide for such double taxation, but was in other respects constitutional, it would be unconstitutional only to the extent of eliminating the feature of the act which provided for such double taxation. This disposes of the present appeal, and we will not at this time attempt to go into the other questions raised.

Order affirmed.