The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1897-03-27
COLLECTION OF PHALEN PARK
ASSESSMENT.
THE INJUNCTION is DENIED.
JUDGE OTIS SAYS PLAINTIFFS
WERE NOT EVEN ENTITLED TO
PRELIMINARY ORDER,
WHICH is NOW VACATED BY COURT
Text of the Memorandum Filled in
the Case by the Court-Suit Should
Have Started Earlier.

The DIRECTORS to the assessment for
Phalen park were fguratively thrown
out of court yesterday. In other
words Judge Otis sustained the city's
demurrer to the complaint of A. Whar-
ton, E. w. Winter and a number Of
other taxpayers asking for an injunc-
ton order restraining the mayor and
comptroller from signing the warrant
authorizing the city treasurer to COL
lect the assessment for Phalen park.
The complaint alleged that the pro
posed assessment was unfair and I'M
just, that Phalen park was not need
ed, and that the board of public works
acted in collusion with the owners of
the property to be taken for the park.
Judge Otis also vacated the temporary
restraining order In the memorandum
accompanying the order sustaining the
demurrer, Judge Otis says:
THE purpose of the action is TO en-
join the collection of an assessment
made and confirmed by the board of
public works to pay for lands con-
demne0 and taken for Phalen park
If the objections urged to the assess
ment are we'll grounded, and plaintiffs
are without other adequate remedy
then this action in equity will be, other
wise not. 1t appears that these pro-
ceedings have so far progressed that
a confirmation of assessments has been
made, and the next step therein is the
issuance of a warrant to the city treas
urer for their collection. And if not
paid within the unusually short time
limited, it becomes his duty to make
application to the district court for
judgment against the several tracts of
land so assessed for the amounts re-
spectively assessed against Them
The law requires IL & various officers
charged with the duty of making and
collecting these assessments to pro-
coed with reasonable dispatch, and
there speedily comes a time when the
property owner is afforded an oppOr-
tunity to contest in the courts, the
validity of such assessment.
At this time the property owner may
make any proper objection to it's valid
ity whether the objection go to the
authority Of the council to order the
Improvement or to the authority of the
board of public works to have the work
done. or go tC show that the assess
ment ought not to have been confirmed.
The gravity of the charge made
in this complaint is fraudulent collu-
sion between the owners of the prop
erty condemned and taken for park
whereby an exorbitant'y excessive val
uation was put upon the property, and
also misconduct on the part Of the
hoard in apportioning the assessment
On property alleged to have been bene-
flied by the Improvement amounting
to fraud or to a demonstrable mistake
of fact.
If these objections are sufficiently
alleged they go to the very root of the
assessment, and if established, they go
to show that the assessment ought not
tC have been confirmed.
1t follows that the property owners
may avail themselves of these objec-
tons when application is made for
judgment in these proceedings and IN
junction will not lie. See Albrecht
against the city. The case last cited
would seem to be exactly in point, for,
although the proceeding to which that
case had reference had so far pro-
crossed that application to the court
for judgment had been made when the
Injunction suit was brought, while her
suit has been brought at an earlier stage
of the proceedings, still the underlying
principles there laid down are quite as
applicable to the case at bar.
The making of the assessment and
steps thereafter taken, down TO it's III
innate collection by Judgment, are
treated as a single proceeding, and
since one Of those steps affords the
property owner his day in court, the
proceeding cannot be intercepted by in
junction, but the property owner must
resort to his remedy in the proceeding
itself. The cases cited by counsel, in
which an injunction has been allowed,
were cases where no remedy in the
courts was provided in the proceedings
and are not applicable.
And in another respect, there is q
marked difference, in that the proceed
ing sought to be enjoined created lien
and so operated as a cloud on the title.
No such consequences follow from
park assessments which do not become
liens until they ripen into judgment.
In my opinion, section 126, page 125,
of the Municipal Code of 1893 does not
apply to this class of assessments.
The statute provides that they are to
be collected in the same manner as
other assessments, but does not give
them the same effect. In my view.
this form of action will not lie at all
and cannot be helped by amendment
In vacating the restraining order,
the court further says:
AS l have held in this case, the COM
plant does not state facts sufficient 10
constitute cause Of action; it follows
that the plaintiff was not entitled to
a preliminary injunction aside from the
irregularity Of which defendants COM
plain that no writ of injunction was III
fact, allowed, or issued under the seal
of the court, but, instead thereof, a
general restraining order was obtained,
signed by the judge only, a practice
for which there would seem to be no
warrant in the statutes.