Minnesota Transfer Railway Co. v. City of St. Paul ( 1925 )

I dissent. Sections 241 and 242 of the Saint Paul charter require that, upon approval of the petition for the improvement, but before the final order granting the petition, a public hearing must be had upon the public necessity for, and the feasibility of, the project, at which all interested persons shall be heard. Such hearing is judicial in character. It was had on February 29, 1916. It is conceded that appellant received the post-card notice thereof, but at that time it was not aninterested party. It had no legal right to be heard. We are here dealing with legal propositions, and at the time of that hearing appellant was legally a stranger to the proceeding. Having no legal right, it had no right at all. When it became an interested party and acquired the right to be heard, the time to be heard had long passed. The bare possibility that four years later its property might, by constitutional amendment, be subjected to assessment, is altogether too weak a ground on which to hold it an interested party. The city council had the undoubted right to refuse to hear it; the proponents of the improvement had the undoubted right to object to its being heard. Appellant's objection or remonstrances would have been unavailing. The provisions of the city charter can mean nothing else than that a landowner, whose land is, by any process, to be made liable for an assessment, has an absolute right to an opportunity to be heard upon the necessity for, and the feasibility of, the proposed improvement. Taking into consideration all the circumstances of this entire situation, it seems to me clear that appellant was deprived of that right. For that reason there is lacking here an essential element of due process of law. State v. Polk County, 87 Minn. 325,92 N.W. 216, 60 L.R.A. 161; State v. District Court of Ramsey County, 90 Minn. 294, 96 N.W. 737; Sears v. Mayor,73 N.J.L. 710, 64 A. 1062, 118 Am. St. 724. The amendment of 1920 was clearly not intended to be retroactive so as to take away appellant's right to be heard upon the determination of whether the improvement was necessary or would promote the public interests. 12 C. J. p. 1234, § 1009. No doubt the council had jurisdiction to order the improvement; no doubt the amount, method and manner of the assessment are governed by the law in force when it is made; but here, the council never acquired any right to assess this property because of the fatal defect in their proceedings as to this party and this property.