44 Minn. 244 | Minn. | 1890
Writ of certiorari, granted on the ex parte application of the petitioner, and directed to the district court for Bamsey county. From the return made to the writ it appears that in the matter of special assessments for the improvement of one of the streets of the city of St. Paul, proceedings were had under and by virtue of section 39, tit. 1, c. 7, of the city charter, (Sp. Laws 1874, c. 1,) which resulted in an order of the court overruling objections to the levy filed by the owners of the property against which assessments had been made, and directing judgment in favor of the city. The object of the writ herein is to review the proceedings and order. No judgment has been entered in accordance with its terms, or otherwise, and for this reason, upon the ground that the writ was improvidently and prematurely issued, the respondent moves that it be quashed.
We are of the opinion that the motion should be granted. The statute (Glen. St. 1878, c. 63, § 1) confers upon the supreme court the power to issue writs of this nature to all courts of inferior jurisdiction, in furtherance of justice, but the power can only be exercised
Further consideration is unnecessary, but the facts warrant us in an expression of our views upon the merits. The order of the council of which relators complain was in words as follows: “Improve Lawton street from Grand avenue to OaMand street, in said city, by constructing a wooden stairway, and grading and sodding said Law-ton street to conform with said stairway.” The charter (section 1, tit. 3, c. 7) directs the council to cause the establishment of grade lines, accurate profiles of which are to be kept and filed.' It also (section 1, tit. 1, c. 7) confers upon the corporation the power to levy assessments for local improvements, either upon property fronting on the same or upon that which may be benefited thereby. Such as
It is admitted herein that no grade had ever been established for the street upon which this improvement was ordered.’ It would seem somewhat remarkable if the streets of a city could be “graded,” in the sense in which the word is used in municipal charters, and property holders compelled to bear the expense of the work, without a prior establishing of grade lines to which the street must be brought. And this becomes the more apparent when we consider the peculiar provisions of the charter (title 3, c. 7) in reference to a change of grade, from which it appears that compensation to those whose property is injured by a change of grade is contemplated. The grading provided for and anticipated in section 2 is that done in. accordance with and with reference to some previously adopted plan and system, in' which lines have been fixed, and profiles made a ' matter of record. The establishment of gradient lines by the council, under the direction of the city engineer, was a prerequisite to its right to make any order in reference to the grading of the street, and
Finally, as to the claim made that part of the improvement described as the wooden stairway could be considered as a sidewalk, we need but to say-.that it was not. In case of walks, the cost of construction must be assessed against the real property fronting thereon. Here the board proceeded against lots lying elsewhere, and which it judged were benefited thereby. It was well said in Sewall v. City of St. Paul, 20 Minn. 459, (511,) that “the authority of municipalities to impose burdens of any character upon persons or property is wholly statutory, and, as its exercise may result in a divestiture and transfer of property, it must be clearly given, and strictly pursued.”
Writ quashed.
Mitchell, J., took no part in this case.