The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1897-09-21
SAMUEL WHALEY CONTENDS, THE
PHALEN PARK ASSESSMENT
IS INVALID.
CASE Is ARGUED AT LENGTH
IN THE DISTRICT COURT BY A
GALAXY OF PROMINENT
LAWYERS.
JUDGE BUM TAKES TWO WEEK!
In Which to Decide What He Will
Do About the Much-OppOsed
Assessment.

In special term yesterday the famous
Phalen park assessment case came up
before Judge Bum, in the district
court, and after hearing arguments,
which consumed the entire day, the
question of the constitutionality of the
law which authorized the assessment
was taken under advisement. Judge
Bum announced that he would render
a decision On the point Oct. 7, at the
next regular court term. Upon this rul-
ing will hinge the fate of the suit. If
the court should hold that the law is
dropped; if he should hold that the law
is valid, then the case will be carried
Immediately to the supreme court in
briefs for final adjustment.
AT his hearing the 142 directors were
represented by an array of prominent
lawyers, among whom were: Hiram F.
Stevens, G. A. Severance, Gen. John
B. Sanborn, Harold Harries, Edward
Young, Samuel Whaley, c. w. Horn
and Judge Gribble. Assistant Corpora
ton Attorney H. w. Phillips conducted
tilC ivy . lhICISSto Ill liz llllSdllOIl. ~
total of S115, 900 worth of property was
represented by attorneys for the pro-
testers, and the combined energies of
the attorneys for the DIRECTORS were
directed towards the demolition of the
present park assessment law. Mr..
Whaley presented the general objec-
tic ms to the assessment as follows:
First-This court has no jurisdiction
to enter any judgment sustaining the
assessment.
S~econd-That the board of public
works had no jurisdiction or authority
to make or affirm the assessment or to
condemn the land.
Third-That the board of park COM
missioners or the city of st. Paul had
no jurisdiction or authority to acquire
the land attempted to be taken, or to
cause an assessment to be laid there
on.
Fourth-That the law, Chapter SO,
special laws of 1S91 does not prescribe
any lawful method of procedure in ac-
curing lam or levying assessment to
pay for it.
Fifth-Because the warrant discloses
that the improvement is a general and
not a local one.
Sixth-Because the law does not re-
quire any inquiry to be made by the
park board or n other agency of the
city, before deciding to take the land,
whether the land can be found to be
specially benefited to extent of cost.
Seventh-Because the right to levy
.1nO9l aSSeSSTnnptS IN YaiSo nonnnU tO
pay for land taken for a park is not
given by constitutional amendment.
Because by the law Chapter 80 there
is not just compensation secured for
the land to be ken.
The arguments were conducted in the
nature of an interchange of views after
MIR. Phillips had made a lengthy state
ment of the city'S attitude in the con-
trOyerSy and an exhaustive argument
in support of the conStitutionality of
the law, which, he claimed, could not
be questioned since the supreme court
ruling in the Indian Mound park case.
law, as raised by the DIRECTORS, was
that the levy of the assessment was in
valid for the reason that it had been
made after the expiration Of four
months as provided by law. Mr.. Phil
lips commended that in the ndian
Mound park case it had been held that
a municipality could take it's own time
in which to levy and collect authorized
assessments.
The official notice of assessment was
published July II, 1897, and the allega-
ton of counsel for the DIRECTORS was
hat it was incorrect and insufficient.
In this connection a brief history Of
the cas- was brought out. The board
OF park commissioners had decided to
institute a park at Lake Phalen, and
after going through the regular Gu
tine of condemnation of property the
board of public works was called upon
to order the condemnation and make
an assessment in the district for the
improvement. Then the property own
ers went into court to object to the as
sessment. Counsel for the DIRECTORS
held that the action of the board of
park commissioners was illegal and
that the original notice Of assessment
issued by the board Of public works
was not valid because it did not de-
scribe particularly the property as
sessed; that the assessment for dam
ages and benefits was not according to
law n that in not confirming the as
until twelve month after 1t
was made, the board of public works
erred; that the assessment was levied
in an arbitrary manner without TAX
ing into consideration the benefits con-
ferred on the property, because the as
sessment district was not all assessed.
In reSard to his last objection it
may be stated that the DIRECTORS rep-
| resent. property covering the distance
from Lake Phalen to the Seven Cor
ners in this particular district. When
the assessment was levied it was car
ried, it is alleged, to Wabasha street,
bv which time a sufficient sum had
been raised to make the improvement.
There the assessment is said to have
rested, and as a result a great deal OF
property in the district did not come
in for it's share of the burden for the
park. It is also claimed that the park
act is unconstitutional under a decis-
ion by the supreme court in the Duluth
mark case, for the reason that when the
nroperiy was assessed the amount of
| damage the property sustained should
be deducted from the benefit it re-
ceiyed. and that the park commission
should have proceeded to assess the
benefits of all property thus benefited,
thus providing for two assessments On
the property for a single benefit. In
stead of that the assessment is alleged
sessment which practically destroys all
the benefits and property rights to
damages.
Summarizing the objections raised
bv the property owners, Mr.. Phillips
cited numerous authorities to show
that the assessment and the law under
which it was authorized, were regular.