33 Minn. 164 | Minn. | 1885
Lead Opinion
Certiorari to review the judgment and proceedings of the district court upon an application by the city of St. Paul, under its charter, for judgment upon an assessment for grading Rice street. On the trial below the city introduced the assessment warrant and rested. That made a prima facie case under section 54, chapter 7, of the charter of the city, (Sp. Laws 1874, c. 1, as amended by Sp. Laws 1875, c. 1, § 15.)
The relator makes here, as we understand him, substantially these objections to the assessments, all of which were made in the court below : First. The order of the common council to the board of public works was merely to “grade” the street, whereas the board caused stone gutters and curbing to be put down and the street to be macadamized, — much more expensive wmrk than mere grading, — and the board had no authority to do the work for which the assessment was made. Second. The assessment was not recorded as required by section 21, chapter 7, of the charter, but was upon a mere fugitive or loose piece of paper, not signed, certified, or identified. Third. The assessment was not confined to property fronting on Rice street, but took in all property within a quarter of a mile on each side of Rice street north of Sycamore street to the city limits, making upon that property a merely front-foot assessment, regardless of any fact except
After the city rested its case, the relator, to establish the objections made by him, introduced — First. An order of the common council referring the matter of grading Rice street between designated points to the board of public works, to examine and report. Second. The report of the board to the council, stating that they considered the said improvement necessary and proper; that they estimated the expense at $52,000; that in their opinion real estate to be assessed for the improvement could be found benefited to the extent of damages, cost, and expenses necessary to be incurred thereby; that the improvement was not asked for by a majority of the owners of property so to be assessed; and that they transmitted with the report a plan or profile of the work to be done, and of an order directing the work. The plan or profile was not introduced. Third. An order of the council directing the board to grade the street between the points designated. Fourth. A notice of a meeting of the board for December 31, 1883, to make assessments for grading the street between the points designated, specifying the property to be assessed as that fronting on the street between those points, and stating the aggregate amount to be assessed as $48,311.35. Fifth. A resolution of the board on March 17, 1884, annulling the previous notice, and directing a new notice. Sixth. A notice pursuant to the terms of said resolution, for a meeting of the board on March 31st, to make assessment for grading the street between the points designated, specifying the property to be assessed as that fronting on Rice street, from College avenue to the north city limits, and all within a quarter of a mile on either side of Rice street north of Sycamore street, and such property in Green’s addition, Jilson’s subdivision, Guerin’s outlots, and Flynn’s subdivision as fronts on Sycamore street; and such other property as might be deemed benefited thereby; and stating the aggregate amount to be assessed as $48,463. Seventh. The entry in the records of the board, declaring the assessment completed, and directing the clerk to give notice of the meeting for confirming the report. Relator admitted that proper notice of the meeting to confirm was given,
The question is, did the evidence so introduced establish the objections raised, so that the court below ought to have rendered judgment against the city? This must be determined upon the provisions of the city charter regulating such assessments. Controlling general rules to be applied upon the trial of any contest on an assessment are found in section 39, chapter 7, (as amended by Sp. Laws 1875, c. 1, § 12,) and section 54, (as amended by Sp. Laws 1875, c. 1, § 15.)
Sec. 39. * * * “No objection shall be interposed or sustained in relation to any of the proceedings prior to the confirmation of the assessment, except that the common council had no authority to order the said improvement, or that the board of public works had no authority to have said work performed, and no objections as to any other of the proceedings shall be sustained on any mere formal irregularity or defect.” (Mun. Code, St. Paul, p. 91.)
Sec. 54. “No error or omission which may have heretofore been or may hereafter be made in the order or in the proceedings of the common cóuncil or board of public works, or of any of the officers of said city, in referring, reporting upon, ordering, or otherwise acting concerning any local improvement provided for in this chapter, or in making any assessment therefor, or in levying and collecting such assessment, not affecting the substantial justice of the assessment itself, shall vitiate or in any way affect such assessment. The reports of the city treasurer and assessment warrants held by him, referred to in section thirty-six of this chapter, shall be prima facie evidence that the proceedings up to the date of such warrants were valid and regular. * * * ” (Mun. Code, St. Paul, p. 98.)
When, in this case, the city had introduced the assessment warrant, it had proved, prima facie, that everything essential to the va
The provision making non-essential errors or omissions not affecting the substantial justice of the assessment, disposes of the relator’s second objection above set forth. The assessment seems to have been at first entered on sheets of paper, attached together in a roll, with a proper caption, and kept in the office of the board; and, upon being confirmed, to have been recorded in a book. We do not see that it is necessary to record in a book, or sign or certify the assessment, before it was confirmed, and while it was incomplete, in the nature of a proposed assessment, which might or might not become final. Even if it ought to have been done, the omission to do it did not affect the substantial justice of the assessment, and consequently cannot vitiate it.
The relator’s third objection above stated is not established by the evidence. The matter of determining what property is specially benefited by a local improvement, and the extent of the benefit, belongs, under the charter of St. Paul, to the board of public works, and their decision is conclusive except in case of fraud or demonstrable mistake of facts. Rogers v. City of St. Paul, 22 Minn. 494; Carpenter v. City of St. Paul, 23 Minn. 232; State v. Board of Public Works, 27 Minn. 442; State v. District Court, 29 Minn. 62. The evidence of the relator discloses only a difference in opinion between him and the board of public works as to what property was to be benefited, and the extent of the benefits; but does not show that the board acted upon an illegal principle of assessment, or that they were under any mistake of fact, or that they did not to the best of their ability exercise their judgment in the matter.
His first objection presents more difficulty. Not by reason of the stone gutters and curbing; for, as was held in State v. District Court, 29 Minn. 62, if such work be a necessary or proper part of the general work of grading, it may be done in proceedings for grading the street; and the evidence on the point shows the gutter and curbing to have been a necessary part of the general work of grading. But the
By section 5, chapter 7, of the charter, (Mun. Code, St. Paul, p. 69,) any proposition for a local improvement must be referred by the council to the board; and if the latter determine the improvement to be necessary and proper, they shall report the same to the council, with an estimate of the expense thereof, and a proper ordinance or order for doing the work; and by section 6, where the improvement relates to opening, straightening, widening, contracting, altering, extending, or grading any street, etc., they shall furnish the council, as a part of their report, with a plan or profile of the contemplated improvement; and, by section 5, the council may make such modification of the proposed plan as may be petitioned for by any of the owners of the property to be assessed, or as the council may think proper, not materially changing the character and object of the improvement as reported by the board, or materially increasing the expense thereof.
By an amendment of section 6, (Sp. Laws 1875, c. 1, § 7,) the report of the board is to be construed as advisory to the council, and not essential to its authority to order any local improvement. By section 23, if the council pass the order for doing the work, the city clerk is to transmit a copy to the board, who then let the work. By section 27, proposals for doing the work are to be advertised by the board; a plan or profile of the work to be done and specifications for doing it being deposited with the clerk of the board for public inspection. By section 28, (as amended by Sp. Laws 1875, c. 1, § 9,) the contract for doing the work is to be awarded to the lowest reliable and responsible bidder; but no contract shall be awarded except by a vote of at least two-thirds of the members of the board in favor thereof, nor except with the approval by the council by a two-third vote of the members thereof elect. Upon being so awarded and approved, the
The provisions of sections 5 and 6 show what the council has before it, and what it considers and passes upon when it makes the order for the board to do the work. It considers and passes on, not solely the report, but also the plan or profile for the work sent with the report. The plan or profile may, and probably in most cases-does, show more clearly and definitely than the report the character of the improvement recommended by the board. Thus, in a case like this, the report might designate the work as grading, while the plan or profile might be such that the work should properly be designated as macadamizing; and in passing on the matter the council would be passing on a proposition to macadamize, though in the report it-was called grading. It would be merely a case of misnomer; and if the council in such case made no modification in the plan, but appeared to approve it by an order to do the work, designating it by the term grading, the work to be done might be that appearing by the plan. That is, to determine what the order authorized the board to do, the report and plan and order should be construed together.. From the failure to introduce the plan, it is impossible for the court to say precisely what the board was to do, or that they departed from the authority given them. The presumption raised by the introduction of the warrant is that they did not; that all their subsequent acts were valid.
But the relator makes a mistake in assuming that the authority of' the board to have the work performed must rest on, or is derived exclusively from, the order. All that the board can do, upon the order-
The final authority of the board to have the work performed, is, in effect, derived from the council’s approval of the award of the contract to perform it. The previous order, however worded, gives authority only to take the preliminary or preparatory steps necessary for the final action of the council. Any departure from the order in those preliminary steps, as to the character of the proposed improvement, could not affect the authority given by the approval of the award, as the council, being assumed to have the award before it, with full knowledge of the extent and character of work awarded, must be held by the approval to ratify such-departure. We are speaking of cases where, as in this case, the authority of the council to undertake the improvement does not depend on an application of property owners. We do not decide what effect such a departure might have in a case where the authority of the council depends on such an application.
Judgment affirmed.
Concurrence Opinion
I concur in the final result of the majority opinion, but upon the ground taken by the city attorney, viz., that what is spoken of in this particular case as “macadamizing” is not macadamizing proper, but merely a mode of surfacing, and therefore properly enough designated as grading. As to the “plan or profile,” I agree to what is said below by my brother Mitchell. As to the “award” of the board of public works, it was, as the record expressly shows, an award for “grading” only, and therefore I do not perceive how its approval by
Concurrence Opinion
I concur in the result, but do not assent to the first ground upon which it is held that the first objection to the assessment was not established by the evidence. The order of the council referred to the board of public works merely the matter of “grading” Rice street. The report of the board to the council, as appears on its face, relates solely to the matter of “grading.” I do not think there is any presumption that the plan or profile of the work transmitted by the board to the council, and accompanying their report, included anything more than the matter referred to them, and to which their report refers, to wit, the “grading;” and in my judgment “grading” does not include “macadamizing.” I would, therefore, place the decision of this point exclusively upon the second ground, viz., that the approval of the award by the council gave the board authority to do the work.
