State Ex Rel. City of Minneapolis v. Boucher

Dibell, J. Certiorari to review an order of the district court of Hennepin county refusing to dismiss an appeal of the respondent property owner from an order of the city council of Minneapolis confirming an assessment of damages and benefits in the condemnation of an alley for public purposes. The ground of the motion to dismiss was that the property owner, not having filed her objections on the hearing *298 before tbe committee of tbe council, as required by tbe statute, bad no right of appeal to tbe district court. Tbe condemnation proceeding was bad under L. 1925, p. 676, c. 417, wbicb amended Gr. S. 1923, §§ 1553, 1554, 1555, 1558 and 1563. Under § 1553 as amended by § 1 of tbe 1925 act tbe council adopts a resolution for tbe proposed improvement and appoints five freeholders as commissioners to view tbe premises and award compensation and to assess benefits. They give published notice that at a time and on a date at least ten days after tbe first publication they will meet and view tbe property and award compensation and benefits. They file their report with tbe city clerk, and be then gives notice by publication to all interested parties. Tbe notice contains descriptions of tbe property, tbe amounts awarded as compensation or as damages, tbe names of tbe owners, and fixes a place and time, not earlier than three weeks from tbe first publication, at wbicb a committee designated by tbe board of park commissioners or by tbe council will meet to bear and consider objections to tbe making of such improvement, tbe amount of damages, tbe amount of benefits, and all claims of irregularities in tbe proceedings of tbe city council, tbe board of park commissioners, or tbe commissioners appointed to make tbe award. Immediately after tbe publication and at least two weeks prior to tbe time designated for tbe meeting of tbe committee tbe city clerk serves upon each of tbe owners a copy of tbe published notice by depositing tbe same in tbe post office, postage prepaid, in an envelope upon wbicb are tbe words, “Notice of tax assessments for improvements affecting your property,” directed to each of tbe owners at bis last known place of residence, if known to tbe city clerk, otherwise as obtained from tbe records in tbe office of tbe county treasurer; but tbe failure to receive tbe notice does not invalidate tbe proceedings. Any person whose property is to be taken or is to be assessed for benefits “shall file with said city clerk, at least one week before tbe bearing designated in such published notice, bis written objection to tbe making of such improvement, or bis objection to tbe damages awarded or benefits assessed, or bis claim of said irregularities, *299 specifically designating the same, and a description of the property affected by such proceedings.” At' the time of the bearing the city clerk presents to tbe committee the report of tbe commissioners “together with all written objections so filed with said city clerk,” and the committee then considers them and hears the objectors or their representatives. Within ten days from the conclusion of the hearing the committee files with the city clerk its report and recommendation, and upon such filing the city clerk gives notice that such report and recommendation have been filed and will be considered by the city council at a meeting designated in the notice, which notice is published for two consecutive weeks, the last publication at least two weeks before the meeting of the city council. The city council considers such report and may confirm or annul it. The respondent did not file her objections as required by the statute. She appeared before the committee and was heard. She filed her objections some weeks later, but before the council confirmed the assessment. By section 2 any person whose property is affected “shall have the right to appeal from such order of confirmation of the city council, to the district court of the county at any time within twenty days after such order.” The appeal is made by serving a written notice of appeal upon the city clerk “which shall specify the property” affected and “refer to the objection filed as aforesaid.” There is no pleading on the appeal, but the court determines whether there were irregularities prejudicial to the appellant “specified in his said written objections.” For present purposes it is unnecessary to consider the further provisions of the statute. It is our view that the statute conditions the right of appeal upon the filing of objections within the time specified. If we hold otherwise we disregard the various provisions relative to the objections made by the property owner, and eliminate the requirement that the notice of appeal shall refer to the objections, and the further provision that the trial in the district court on appeal shall be based upon the objections and not upon a new pleading. *300 Throughout-the statute the requirement of filing of objections by the property owner is featured. Under the constitution a man’s property may not be taken in a condemnation proceeding without compensation or the land of another assessed for benefits without a judicial hearing. State ex rel. Hunt v. City of Montevideo, 142 Minn. 157, 171 N. W. 314. There is always a right of review in this court. County of Brown v. Winona & St. P. L. Co. 38 Minn. 397, 37 N. W. 949. The statute may provide a review by appeal, and if it does so and the conditions to the right of appeal are not observed, the court does not acquire jurisdiction. Klein v. St. Paul, M. & M. Ry. Co. 30 Minn. 451, 16 N. W. 265; Schwede v. Town of Burnstown, 35 Minn. 468, 29 N. W. 72; Runyon v. Alton, 78 Minn. 31, 80 N. W. 836. This is the situation in the case before us. Order reversed.