Minnesota Transfer Railway Co. v. City of St. Paul

1 Reported in 205 N.W. 609, 207 N.W. 320. This is a proceeding to enforce the payment of a special assessment for a local improvement, namely, paving on Prior avenue. The appellant owns land abutting on this avenue. It is a railroad corporation. The city assessed it for the improvement. It interposed an answer. It now appeals from the judgment entered against it. *Page 10 Section 2226, G. S. 1913, provided a gross earnings tax and gave an exemption of all taxes and assessments in lieu thereof. By virtue of the amendment to this statute resulting from the approval of chapter 533, p. 755, L. 1919, in accordance with article 4, § 32a, of the state Constitution, the words "and assessments" were eliminated. This was confirmed by the proclamation of the Governor on December 1, 1920. In 1917 the city council passed a final order for the improvement, and work was commenced at once so that the curbing, sewer and water connections were made without delay. Due to the conditions incident to the World War, no paving was done until May 12, 1921, when it was commenced; it was completed on July 5, 1921. When the work was ordered, the railroad company was exempt from liability, but before the assessment was made the exemption had been revoked. The city charter provides that, when a remonstrance is signed and filed by 4/5 of the abutting property owners in opposition to such improvement, the same shall be denied. If appellant and other objectors had done this, they would have had the necessary 4/5, and had appellant considered their abutting property, which was owned for railroad purposes, liable for assessment, it and others would have filed such remonstrance, but the charter further says "provided, however, that no such petition of remonstrance shall have any force or effect whenever the council, by * * * a five-sevenths vote of all its members elect including the mayor, and adopted within twenty days from and after filing of such petition, shall declare such improvement or improvements to be a public necessity." Upon the inauguration of such special improvement the charter provides for notice to the property owners. This notice was given to appellant and it wrote a letter to the city acknowledging the receipt of such notice and announced that it would not pay any part of the cost of the improvement unless legally compelled to do so. The principal inquiry is, can an improvement ordered and commenced at a time when the property of appellant was not liable to *Page 11 assessment, be assessed against the property, the improvement having been completed and the assessments made after the exemption from assessment has been revoked? The appellant's urgent opposition to an affirmative answer to the inquiry is that such would infringe upon its constitutional right and would be a taking of its property without due process of law, because it would be compelled to pay without an opportunity to be heard in opposition to the desirability and necessity of the improvement. It insists that it had no opportunity of being heard — not because of lack of notice which is acknowledged, and we assume the notice was in form an invitation to appear and participate as an affected property owner — but because it says under the law it had no right to be heard even if it had appeared. It is suggested that, had it appeared in response to the notice, or otherwise, the city would have been strictly within its legal rights to have refused to hear them. Whether the conclusion is right depends upon what the law is. Appellant begs the question. The appellant enjoyed an exemption from paying assessments. It had been given by the people. It could be taken away by the people. The exemption was in the nature of a privilege. It was revocable at the will of its creator. It was not a vested right. Appellant was charged with this knowledge and when it received the notice it had to decide whether it would act upon the possibility of its exemption being revoked or upon the theory that the exemption would continue. It elected to pursue the latter course. It had a right to notice, which it received; it had a right to appear and be heard, which it failed to exercise because of a possibility of a revocation of its exemption and the city could not refuse to hear it as an interested party. It received the legal notice. It refused to heed it. It took its chances on the outcome. The city did all the prerequisite things to acquire jurisdiction. The law tendered it a day in court to litigate the question of advisability of making the improvement. It did not avail itself of this opportunity. It cannot now complain of having had no opportunity to be heard. State v. Holmes,162 Minn. 173, 202 N.W. 440. *Page 12 The revocation makes no reference to pending improvements. It does not except them. The learned trial court in his memorandum gave a very potent reason in support of the conclusion reached when he said: "If there had been no exemption from special assessments prior to December 1, 1920, and if the legislature had seen fit to so amend the law as to grant such exemption, no one would contend that the Railroad Company's property would be liable for an assessment for an improvement which was not completed prior to the going into effect of the amendment and for which no assessment proceedings had been initiated. This being so, clearly, the Railroad Company is liable for an assessment * * * properly levied subsequent to the revocation of the exemption from special assessment." In State v. Johnson, 111 Minn. 255, 126 N.W. 1074, ditch assessments were completed August 1, 1904. Lands of the United States were not subject to liens assessed in drainage proceedings prior to an act of Congress passed May 20, 1908. The property owners who objected made no resistance to the proceedings until after the construction of the ditch and until it was sought to obtain judgment against their lands for the first instalment of the assessment. They then claimed that their property was not subject to taxation. They had made entry under the United States Homestead Laws and the United States remains the owner of such land until final proof is made and the entryman is entitled to a patent without the performance of any further act upon his part. Assessments were levied on 43 tracts. Final proof was made as to 13 of these tracts before August 1, 1904, and as to 30 after August 1, 1904. The court remanded the proceedings with instructions to enter judgment subjecting to assessment the 13 tracts which were finally proved pursuant to the homestead laws prior to the filing of the assessment roll on August 1, 1904, disregarding the time when the improvement was ordered and the time when the jurisdictional notices in the proceedings were given, although the tracts may then have been exempt from assessment. *Page 13 In this case no assessment proceedings could have been initiated before the revocation of the exemption, because the work was not completed. The case of In Re Paving Snelling Avenue, 155 Minn. 168, 193 N.W. 115, and same in Re Paving Lincoln Ave. 155 Minn. 171, 193 N.W. 116, call for affirmance in this case. There is little difference in principle in changing the law so as to modify the extent of assessment or in changing the law so as to remove the exemption from taxation. Our conclusion is consistent with Pittsburgh Coal Co. v. City of St. Paul, 150 Minn. 166, 184 N.W. 788. This proceeding is instituted pursuant to the provisions of the city charter. It has not been repealed or changed. Hence section 10930, G. S. 1923, which protects "any right accrued" under a law which has been repealed is of little importance. We hold that under the facts in this case the law which was in force when the assessment proceedings were initiated and consummated should control. Appellants claim that chapter 533, p. 755, L. 1919, is unconstitutional. The only reason for the constitutional amendment of 1871 was to permit a gross earnings tax which arose from the fact that the Constitution then provided that all taxes were levied on a cash valuation. Sec. 1, Art. 9, State Constitution. The amendment requires that all amendments to the law must be ratified by a vote of the people. The provision for amendment shows that amendments are contemplated. Obviously the gross earnings tax is in place of general taxes and permitting the assessment of railroad real estate for special improvements is only requiring the railroad to pay for special benefits accruing to its property. It treats all railroads alike. We do not think that this in any way contravenes any provision of the Constitution. Affirmed.