The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1902-07-18

intent in this case, and an application
to- prohibit by temporary injunction
such use of public funds was vigorous.
ly resisted by the defendants.
In recognition of the intelligence OF
defendant officers, and in appreciation
of their sense of natural Justice,
prefer to believe that such was their
intention, until temporarily restrain
ed by the court.
am not convinced that the right
to make this improvement, to be paid
for wholly by assessments upon pri-
vate properly. exists.
The law provides that assessments
shall be made upon all property bene-
fitted by or fronting upon the i'm
provement,
The city lots are benefited equally
with other lots similarly situated.
Private property shall not be taken
for public use without just compensa-
ton therefor, first paid or secured. -
Constitution, Article l, Section IL.
State VS.. Pillsbury. 50 Mimi. 359-37l.
"a law which would attempt to
make one person or given number
of persons, under the guise OF local
assessments, pay general revenue for
the public at large, would not be an
exercise of the taxing power, but an
act of confscation. '-McCormick VS..
Patchin, 90 Mo 1886.
I'm our Judgment the exaction from
the owner of private property of the
cost of a public Improvement in sub
stantial excess of the special benefits
accruing to him is, to the extent of
such excess, a taking, under the guise
of taxation, of private property for
public use without compensation. -
Norwood VS.. Baker, l72-U. s. 269-279.
Equality is equity. And the right
of the owner of lot to have this bur-
den of special tax ratably distributed
among the lots benehUteo does not de-
pend alone upon the state constitution
exacting equal taxation, but has its
foundation in those elementary prin-
ciples Of equity and justice which
lie at the root of the social compact. -
Fay VS.. City of springfield, IA Fed.
400.
'!All taxes shall be as neraly equal
as may be 1t must stlIl be re
garded as the constitutional duty of
the Legislature 10 frame its enactments
with regard to the principle of equal
ity, ana clear disregard of that re-
quirment would affect the validity of
legislative action. ''-Dickinson, j.,
in State vs.. District Court 80 Mimi,
235-245.
1t has been held in this state that
the board of public works is author
lied to condemn city property and to
assess benefits of an improvement, to
property owned by the city, precisely
as ii the city were private owner o
the property taken. State lex rel
Gotzian VS.. District Court, " Mimi,
24S-253.
The above decision as to the con-
demnation of property seems to rest
upon the ground that the charter of
st. Paul provides that property of
corporation" may be condemned
and that this includes municipal COR
porations.
But as to assessment of benefits the
word corporation" is not used in
the charter, and the charter is sub
stantially the. same in that respect as
the charter. of. Mankato. State ex rel
Gotzian supra p. 1862.
At any rate 1 prefer to keep fully
abreast. with thai uecision, and, if
necessary, to go little farther, and to
hold that under the charter of this
city, property.of the city owned by
it as a proprietor in fee, must bear
its burden of public improvements to
be paid for by special assessments,
equally with other property benefited.
And this cannot be done in this
case because of--the distressing .fnan-
cial condition of defendant city.
1 am aware that the improvement
in question is proceeding, and that
considerable progress has been made
..and,.r that this decision if cor
rect must result in some inconvenience
and perhaps loss, but, the views here
were very distinctly fore
Swallowed when the order for tenn
porary.injunction was made herein,
before. the contract..was entered into,
and the responsibility for present con-
wholly upon the defend
ants.
Whether the temporary injunction
herein was violated blythe making of
the. contract in question need not now
be considered.
:, Public officers should not entirely
forget that they..are the servantsof
the people and not their masters.
Some of the questions herein deter
mined could we'll have been deter
mined upon objections to special
but others could not, and
it seems to me that a great wrong is
being perpetrated or attempted uuder
An unwarranted assumption of power,
which calls loudly for the prompt in
of the restraining hand of
the court.
!. All proceedings herein are stayed
for the period OF twenty days from
late of filing hereof TO allow the de-