State ex rel. Bunnell v. Ensign

Collins, J. To an application made', in accordance with the charter of the city of Duluth, (Sp. Laws 1887, ch. 2, subch. 5, § 10,) to a judge of the district court by the board of public works for an order confirming a- special assessment against his real property, the [377] relator filed six separate objections, all of which were overruled, and such assessment was confirmed. This proceeding was then instituted to test the validity of the confirmatory order. 1. It is urged by counsel for relator that the charter provisions under which the assessment was made and confirmed are unconstitutional and void, because the proceedings which end in the order of confirmation made by the District Judge are not required to be filed in the District Court and to become a part of the record of such court. To the contrary, it is expressly provided that the assessment roll, with the order of the judge confirming the same, shall be filed and preserved in the office of the board of public works as a part of the city records. To support their position counsel for relator have indulged in illustrations of what might happen should the ordinary files and records of the District Court be scattered about in various offices by means of similar enactments, but they have entirely omitted to specify what part of the fundamental law of the state has been encroached upon by this particular charter provision. As is said by respondents’ counsel, discussion upon this branch of the case would have been greatly facilitated had the violated provision of the constitution been pointed out, and not left for conjecture. We have discovered no reason, constitutional or otherwise, why the assessment roll with the attached order of confirmation cannot be filed and preserved among other city records, to which they pertain, as well as in the office of the clerk of court. 2. It is argued in relator’s behalf that the assessment roll and confirmatory order cannot stand because the city had the power to compel the railway company to viaduct or bridge the street where it was crossed by the tracks. If ¿his were true, it would involve the proposition that because the city had this power it was without authority to make the improvement itself, assessing the cost of the same upon real property actually benefited. But in that part of the charter (subch. 5, § 2, supra) which confers authority upon the city to levy special assessments, it is expressly provided that “such assessments may be made for bridging any street.” It is plain that, without regard to the compulsory power of the city over the railway company, the former was authorized to proceed with the street improvement itself, and to assess the cost of the same against all property thereby benefited. Again, even, if the charter provision [378] did not exist, it would be incumbent upon the relator to show that the street in question was within some statute which cast upon the railway company the duty of constructing the structure contemplated by the city authorities. Our attention has not been called to any such statute by counsel. They seem to assume that tne law construed in State ex rel. v. St. Paul, M. & M. Ry. Co., 35 Minn. 131, (28 N. W. Rep. 3,) applies, but that was a provision found in the charter of the railway company, relator in that action, and was simply held applicable to a street laid out and established prior to the construction of the railway. 3. It nowhere appears in the record that this assessment was not based upon the rule of actual benefits to the property assessed, or that such rule was in any degree disregarded. Taking the plat marked “Method Employed in Making Special Assessment” as part of the case, and of this there is a doubt, it was not shown that the assessment was made according to areas, to the exclusion of any consideration of benefits. On this point the case is entirely different from that of State ex rel. v. Judges of District Court, 51 Minn. 539, (53 N. W. Rep. 800.) It was shown in that case that in making assessments the board had not in many instances exercised its judgment as to benefits, but had based its assessments upon an arbitrary inflexible regulation as to areas. This vitiated the assessment, it was held. 4. Nor does it appear anywhere in the record that property of the railway was benefited, and should have been assessed in common with other benefited property, as provided in said subch. 5, § 8. It was incumbent upon the relator to establish the fact, if it existed, as his counsel seem to assert. That, under contract with the city, the railroad company bore the greater part of the expense of making the improvement does not prove that its property was benefited, and should have been assessed, any more than it confesses and establishes another proposition made by counsel, namely, that the company was under legal obligation, and could have been compelled by the city to construct the viaduct and its approaches at its own expense. 5. The relator asks ns to review and reverse what amounted to a finding of fact by the district judge when confirming the assessment. This was that the relator’s property had been benefited by [379] the improvement in question to the amount of the assessment as shown by the assessment roll. The well-settled rule in regard to ordinary findings of fact in cases tried by the court without a jury applies to this case. There was an abundance of evidence reasonably tending to support the conclusion of the judge, and we decline to disturb it. Nor is it necessary, in order to apply this rule, for us to determine that the action of the judge when confirming an assessment is a judicial proceeding, for the same rule applies where a finding on a question of fact is confided to the determination of an administrative officer. Nor do we determine that the action of the judge is res acljudieata, as it is declared to be by the charter. {Opinion published 56 N. W. Rep. 41.) 6. The last point made by counsel is fully covered by the finding just referred to in respect to benefits to relator’s property. Further, there is nothing in the charter which prohibits a change in sewer plans, and the adoption of another system than that provided for in the so-called “Herring Plans.” That is what seems to have been done here. In any event, the claim that the relator is subject to a future assessment for a storm sewer constructed in accordance with the Herring plans need not be disposed of in advance. It will be proper to dispose of such an assessment when it is made. Writ quashed.