The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1899-01-21

Right to Condemn Property for
Park Purposes 1t Failed In This
Case to Conform to Certain Pro-
visions OF the Law as to the
Length of Time.
Judge Canty handed down a decision
In the supreme court yesterday which
aff1rms the finding of Judge Bum in
the Phalen park assessment contro-
Versy. While the supreme court holds
that the law giving the park board the
right to condemn property for park pur-
poses Is constitutional. it says that the
board OF public works failed to comply
with the condition of the law when 1t
did not confirm the action of the board
within the prescribed length of time,
four months
The case has been in litigation be-
lore the local courts for over a year,
and was carried to the supreme court
early during the October term. A large
tract of property was condemned for
this park; The cost was assessed
against the owners of the property
within radius of two miles, and one
third of those assessed refused to pay
the assessment. The city authorities
applied to the district court to have
the assessment entered in judgment
against 100 or more owners The case
was heard before Judge Bum and the
motion was denied. The city then sued
out a writ of certiorari to compel judg-
ment against the property holders.
While the assessment is declared In
valid by the supreme court 1T still
leaves power with the park board and
the board of public works to levy an
other special assessment if it Is accom-
plished in accordance with law. The
opinion is as follows:
First-While a public park is to some ex-
tent general benefit to the whole city, 1t is
also as general rule a special benefit to
the locality or part Of the city in which 1t IS
established. The extent Of these special bene-
fits is the question Of fact to be determined
In each particular case, and of course, the
property specially benefited cannot be as
cial benefits. But up to this amount 1t may
be assessed for such special benefits, even
though the park is also general benefit
See Steiner vs.: Sullivan. II N. w. R. 2S6. In
such case the legislative authority has
very extensive discretion in determining
whether the expense of the improvement shall
be betrayed by a special assessment or a
general tax or partly by each.
Second-There is nothing in the claim that
said chapter So permits the board of public
works to assess as benefits more than the
ually benefited by the improvement. The
statute will not bear that Interpretation.
Third-Chapter So, Special Laws 1891, pro-
vides that when the board Of park commits
sioners of St. Paul determined to take any
track OF land for park they shall do SO by
resolution, and shall thereupon make an or
der directing the board of public works to
determine the amount Of damages or COM
pensation to be paid for the land SO taken.
and after deducting the amount of such com
pensation to be paid out of the general park
to be benefited. It is further provided that
a copy Of the resolution and the order shall
pc certified to the board Of public works.
Section 26 provides that the assessments for
benefits shall be finally confirmed by the
board of public works within four months
after receiving the certified copies of such
order and resolution from the park board.
In this case the assessment was not con-
firmed within four months or until more
than nine months, after receiving the copies
OF the order and resolution from the park
visions in the statute requiring the assess
ment to be confirmed within four months
Is mandatory and not directory, and that at
the end of four months the board lost juris-
dlction to confirm the assessment.
Where the purpose of the statute is merely
to prescribe prompt and orderly method
of transacting public business, a provision
designating the time within which a thing
shall be done Is generally construed to be
directory. But when the provision is for
the benefit of particular individuals in pro-
strued as mandatory. In our opinion the
provision here in question Is of the latter
kind The statute provides that upon re-
ceipt of the order from the park board the
board of public works shall give twenty
days notice of the time and place of the
meeting for the purpose OF making the as
pear and be heard. The board shall deter
mine the value of the real estate to be con-
demned and assess the benefits therefor. and
when the assessment is completed the board
shall give ten days notice Of the fact and
at time and place specified the board will
meet for the purpose of hearing objections
thereto, that objections may be filed and
the latter heard. When the assessment is
confirmed the clerk of the board shall give
notice of that fact, and any person who has
filed objections to the assessment as afore-
peal to the district court from the order
confirming the assessment. It is further
provided that each Of these notices shall
be given by one publication of 1t in a news
paper No personal notice is required. Then
the party interested must watch for these
published notices and learn at his peril what
the statute has placed limit upon the time
during which he may be thus kept watching
in order to have an opportunity to defend
his rights, and has limited that time to four
months. Clearly this provision of the statute
is intended for the benefit of the persons
whose property may be assessed for special
benefit resulting from such taking, and it
is immaterial whether there are 1870 or one
of such persons.
Respondents contend that the act in ques-
ton is unconstitutional because it provides
Luz uOuple IdAdLiOu dS ufu Luo ACT pdSSeu
on in State vs.. District Court, 66 Mimi, ISL.
We cannot SO hold: Section % Of said chap
ter 30 provides: eff the damages to any
person be greater than the benefits assessed
or if the benefits be greater than the dam
ages, in either case the said board of pub
lie works shall strike balance and carry
the difference forward to another column, SO
the assessment may show what amount is to
be received paid by such owners respec-
lively, and the difference only shall in any
case be collectable Of them paid by
them"
Clearly this section does not provide for
assessing benefits twice the balance of
the parcel of land remaining after a part
of it is taken for park. but expressly pro-
vides to the contrary. Even if the act did
provide for such double taxation, but was
in other respects constitutional, 1t would be
unconstitutional only to the extent of elm
mating the feature of the act which provided
for such double taxation.
This disposes of the present appeal, AMI
we will not at this time attempt to go into
the other questions raised. Order affirmed.
-Canty, ].
OTHER DECISIONS.