The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1905-03-24

property of the plaintiff for the pay
ment for the same OF any part there
of, and that the Barber company be
perpetually restrained from enforcing
or attempting to enforce the doing or
performance upon the part of the city
of any of the acts enjoined; and third
that the plaintiffs recover from the de-
PENDANTS their proper costs and DIS
bursements.
The decision is accompanied by the
following memorandum:
A vital question in this case is, wheth-
er the plaintiffs have any interest in the
determination of the question of the
validity of the contract herein involv-
ed, in view of the fact that the work
has been abandoned in the immediate
front of their particular property. 1t
seems to me that the plaintiffs have
sufficient interest in that question to
sustain this action.
Passing the question whether the
plaintiffs may not yet be subject to
special assessments for this improve
ment. Notwithstanding the fact that it
was dropped Immediately before reach
ing their premises, their premises being
on the street in question: and the I'M
provement being one comprehending the
entire street, yet l think that as general
tax payers they have such interest.
If this contract is valid it is valid
in its entirety, and must be fully per-
formed by defendant city, except so far
as performance has been waived by the
parties.
This necessarily involves full payment
for the work actually done.
How must the money for such pay
ment be raised?
The contract provides that payment
shall be made by funds obtained by
special assessments made upon real estate
and property benefited by said improve
ment, other than real estate and proper
ty belonging to defendant city.
If the necessary funds cannot so be
obtained, legally, then this contract is
not valid and enforcible, unless it is to
be held that if a city contracts to pay
from special funds which cannot lawful
ly be raised, then it must pay from its
general funds.
AS said by me in Diamond vs.. City,
| do not think that benefits accruing to
city property can be assessed especially
against the property of certain individ-
uals, and it should not be presumed
that public officers will attempt to do
so.
1t cannot be answered that if such
an assessment is made that the proper
ty owners may not complain. 1t should
be conclusively presumed that such an
assessment will not be made or at
tempted, as public officers are presum-
ed to comply with the law.
Then the only alternative is to pay
for a portion of this improvement from
general funds.
This may be enjoined by the plaintiff
taxpayers upon the grounds that the
financial condition of the city forbids.
Special Laws 1891, p 4l3-section IL.
And that there was not fair competi-
ton permitted when the contract was
let; in other words, that the contract
is void and not enforcible.
Diamond VS.. City, SO MINI. 4S.
To express it more tersely, | think
that under the contract if valid, the city
must pay for paving in front of city
property, and / think it cannot, then it
must be done by general taxation, and
plaintiffs as taxpayers must bear their
share of the burden.
If this can be paid by special assess
ment, query: whether plaintiffs proper.
| ty is not liable to be assessed, even
though the work in front of their prop.
erty has been abandoned.