Love v. Town of Preston

Jaggard, J. Plaintiff brought this action against the town of Preston and the auditor of Fillmore county to prevent the officials of the town from levying, extending and collecting a tax on property in the village limits for roads and bridges to be expended outside the village lim [461] its but within the township limits. Various demurrers were interposed and overruled. This appeal was taken from the orders to that effect. The substance of the present controversy arises from the following state of facts: The village of Preston was organized under chapter 35 of the Special Laws of Minnesota of 1889, (p. 612) and acts amendatory thereof. It was composed of territory a part of which was in each of the four defendant townships. The immediate ques-. tion is whether the defendant township had authority to vote or levy taxes on property within the corporate limits of the village of Preston for the construction and maintenance of roads and bridges within the township, but beyond the city limits. IJnder the charter of the village of Preston, “the citizens incorporated by this act shall be and remain citizens of the townships in which they reside, respectively, for all township purposes in addition to the powers and privileges conferred by this act.” As such they had a right to vote at township meetings of their respective towns. The village was charged with the construction and maintenance of its own streets and bridges, and was responsible for injuries consequent upon neglect with respect thereto. No expense in connection therewith could be imposed upon the township. On the other hand, under the charter provision, such citizens remained citizens of the township, with the privilege of voting, inter alia, for the imposition of road and bridge taxes upon the township, and of representation on the town board. With that privilege went also the responsibility for the taxes imposed. It is true beyond any controversy that the statutory construction should be adopted, if possible, which would avoid the double taxation thus imposed on property owners of the village. Board of County Commissioners of Rice County v. Citizens National Bank of Faribault, 23 Minn. 280. We are unable, however, to see how this may be done in the present instance. The statutory provision is clear; its. construction necessary. In McNeal v. Lippincott, 57 N. J. L. 540, 31 Atl. 399, a state of facts not distinguishable from those at bar was presented. It was there held that it was within the power of the legislature to [462] create such a dual municipality as was here created, to confer the power to tax here exercised. On the other hand, Bradish v. Lucken, 38 Minn. 186, 36 N. W. 454, involved a state of facts in many respects similar; but there, there was no charter provision corresponding to the one here, by which the citizens of the village remained citizens of the township for township purposes, with the right to vote. The village in that case was originally incorporated under Sp. Laws 1881, p. 106, c. 15. It is reincorporated under Laws 1885, p. 148, c. 145. We have been unable to find anything in that law or in the general law corresponding to this provision. Certainly section 43, (p. 167) which is relevant, does not contain it. Defendant is not without an ultimate remedy in the premises. That remedy is not, however, an appeal to the courts, but is to be. found in pursuing the legislative enactment on that subject; that is to say, under section 708, R. L. 1905, pertaining to separate elecion and assessment districts. Reversed.