The Ely miner. [volume] (Ely, Minn.) 1895-1986, 1914-06-05
CITY LOSES
Judge FesIer Makes Temporary In;
junction Permanent

injunction proceedings against the
City of Ely brought by the Oliver
Mining company to restrain the
city council from making improve
ments and charging the same to the
general taxation scheme, was given
by Judge Fesler Monday.
The judge holds that the city
officials are not within their rights
when they propose to pay from the
general or other funds more than
third of the total cost of GER
tain street improvements. The de-
cision leaves us just where we were
before and in the same position
we were in when the work was
stopped last fall.
The contractors are in need of
their money and should be paid
but the courts order forbids the
payment. The contractors will
now probably enter suit against
the city for damages and breach of
contract and thus entail an addi-
tional expense of several thousand
dollars in addition to the several
thousand dollars already entailed.
The stoppage of the work last
fall. according to the estimates of
the engineers. will cost the city
almost as much more than the
original contract for the work.
This expense will all come out of
the taxpayers who have already
been assessed for the original cost
of the work. Besides, should the
mandamus suit now pending be
decided against the city and in
favor of the Mining company, in
dividual property owners would be
compelled to pay the expenses over
again on the assessment basis.
This is certainly very pretty
kettle of fish and mess the Oliver
company can point to with pride.
We fail to see where the city or the
company are the gamers. The
Oliver company in its complaint
lays great stress on the statement
that it pays 80 per cent of the taxes
in Ely. At that. they are not pay
ing by about thirtieth part as
much, in comparison, as the most
humble laborer in their employ
pays on his few belongings.
At the trial of the action. the
city officials admitted that the con-
tracts for street improvements
would have been paid out of the
general Improvement fund, instead
of by special assessment, if the
temporary restraining order had
not been issued against them. The
fight in the case centered around
the Interpretation of the charter
provision for the defraying of the
cost for public improvements. The
city officials contended that the
provision of the charter which
stipulated that two-thirds of the
cost of street improvements should
be assessed against benefited pro-
perty owners, is unconstitutional in
that it provides for unequal assess
ments and in that it attempts to
delegate to the city council power
to determine to what extent the
power of taxation and assessment
of property shall be exercised, and
because it does not provide nor re-
quire notice to property owners
nor for an opportunity to be heard
in cases where the city council is
authorized to use its discretion in
the matter of apportioning taxes
between lots liable for assessment.
The court, in a memorandum of
some length, attached to the de-
cision, holds that the charter pro-
vision is constitutional, and dis
cusses the provisions of the city
charter and their application to the
case at bar. Among other things,
Judge Fesler says: ege
The defendants claim that the
charter itself does not provide for
any assessment upon property
benefited by local improvement.
The point seems to be that in
section 5 of chapter the word
chargeable' is used instead of some
appropriate phrase indicating an
assessment of benefits. If the Ian
guage had been to the effect that
the expense would be paid by an
assessment on the lots specifically
benefited which abut upon the i'm
provement, probably no fault would
be found with it.
One could not read chapter 9
without feeling that its meaning
could have been more clearly ex-
pressed. But the people of Ely
adopted it as it is. 1t Is what they
wanted for their charter on the
subject of local improvements. If
court can spell out of it their in
tent from the language used, it has
no business taking out and invali-
dating few sections because the
court thinks it could have been
written more clearly. All am
biguities and doubts should be re-
solved in favor of a construction
that will leave in the charter all
that the people of Ely sthought
they had in it when they adopted
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