Independent School Dist. v. City of White Bear Lake
| Decision Date | 14 June 1940 |
| Docket Number | No. 32373.,32373. |
| Citation | 208 Minn. 29,292 N.W. 777 |
| Parties | INDEPENDENT SCHOOL DIST. OF WHITE BEAR LAKE v. CITY OF WHITE BEAR LAKE et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Ramsey County; Carlton F. McNally, Judge.
Mandamus proceeding by the Independent School District of White Bear Lake against the City of White Bear Lake, the First Trust Company of St. Paul, trustee for holders of bonds issued for sewer improvements by the City of White Bear Lake, the County Board of Ramsey County, and others, to compel the cancellation of all unpaid installments and certain tax judgments against the petitioner's land. From an order striking as sham and frivolous certain parts of the answers, directing judgment in favor of the petitioner, and that a peremptory writ of mandamus issue to compel compliance with judgment ordered, the First Trust Company of St. Paul, trustee for holders of bonds issued for sewer improvements by the City of White Bear Lake, appeals.
Affirmed.
Harvey O. Sargeant, of St. Paul, for First Trust Co. of St. Paul.
Lewis E. Lohmann, of St. Paul, for Independent School Dist. of White Bear Lake.
John H. Horeish, of St. Paul, for City of White Bear Lake.
This is an appeal from an order striking as sham and frivolous certain parts of the answers, directing judgment in favor of the petitioner and that a peremptory writ of mandamus issue to compel compliance with the judgment ordered. For convenience we designate the parties as they were designated below. If it were not for the direction in the order that the peremptory writ issue, we would be bound to dismiss the appeal. In State ex rel. Boldt v. St. Cloud Milk Producers' Assn, 200 Minn. 1, 273 N.W. 603, we held that a direction that a peremptory writ of mandamus issue is an irregular judgment from which an appeal will lie. But we also took pains to point out the correct practice, which is to enter a judgment as in other cases. Where the writ is allowed the judgment should so provide and the writ should be issued pursuant thereto. An appeal, if any, should be from the judgment. Here judgment was entered, but the appeal was from the order. Why counsel chose to persist in ignoring our admonitions is not apparent.
Petitioner is an independent school district organized as a municipal corporation under the general statutes. It owns the land upon which there is a school building used for school purposes in the respondent city. The area of the school district comprehends that of the city and other lands.
The city is a city of the fourth class and has a home rule charter. A sewerage system was constructed by the city and was to be paid by special assessment against benefited property. The parties state, and we accept the statement as a fact, that the city's authority to construct the sewerage system and assess benefited property was in virtue of the general statutes (Mason Minn.St. 1927, §§ 1880-1906) and not its charter.
The sewerage system cost in excess of $350,000 for which bonds of the city were issued. The cost of the project was assessed against benefited property under Mason Minn.St.1927, § 1885. The assessments were payable in ten equal successive annual installments. The statute provides that installments of assessments not paid when due shall be certified to the county auditor to be included in, collected and payment thereof enforced "in the manner provided for the enforcement and collection of the state and county taxes". Section 1891. No personal liability is in terms imposed on the landowner for the assessment. No other remedy for collection and enforcement of the same is authorized. Petitioner's property was assessed the same as other benefited property. It paid some of the installments. Then it brought the present action to compel the cancellation of all unpaid installments and certain tax judgments against its land based on certain unpaid installments.
The respondent First Trust Company of St. Paul is the trustee of certain bondholders. Other respondents, including the city, appeared below, but are taking no part in this appeal. The trustee opposed the granting of the writ on numerous grounds. Petitioner moved to strike from the return as sham and frivolous certain allegations. These we summarize. Those claimed to be sham relate to the trustee's claim that petitioner agreed with the city to pay the amount of any assessment against its property as a consideration or inducement to the city to construct the sewer. Those claimed to be frivolous consist of numerous allegations to the effect that the sewer benefits petitioner's property, it having connected its private drain therewith; that the city levied the assessment against all benefited property, including petitioner's, with notice to and acquiescence of all the owners; that the bonds were issued on the faith of and to be paid out of such assessments and particularly in reliance upon the assessability of petitioner's property and the collectibility of the assessment made against it; that, although the unpaid installments of the assessment were ordered abated in due proceedings and in the form required by law by the officials possessing the power, the abatement of the installments was void as being without authority in law and in breach of the city's undertaking with the bondholders to pay the bonds with funds raised by the assessment; that the city had authority under the statutes to levy the assessment against petitioner's land; and that the petitioner is liable quasi ex contractu, if not by assessment, for benefits received by reason of the construction of the sewer and petitioner's having made use of it by connecting its drain therewith. The motion to strike was granted by the order from which the appeal was taken.
The questions raised by the appeal will be disposed of without further statement of the evolution of the issues.
1. Petitioner's claim that the allegations of the return that prior to construction of the sewer petitioner entered into a contract with the city whereby it agreed to pay the assessment that was made against its property were sham was supported by a showing that its records contained no record of such a contract and of an affidavit by its clerk, who had personal knowledge of all its transactions during all the times here involved, that he personally knew that no such contract had been made. This showing stood unanswered and uncontradicted.
A pleading is sham if it is false in fact. 5 Dunnell, Minn.Dig. (2d Ed. & Supps.) § 7657. The falsity of a pleading may be established by affidavit. Bank of Richards v. Sheasgreen, 153 Minn. 363, 190 N.W. 484. Where the fact of falsity is established as it is here by a clear and unequivocal showing, the failure of the opposing party to answer and contradict the showing must be taken as admitting its truth. Allegations of fact in a pleading shown to be false should not be permitted to stand. Knudson v. Pederson, 166 Minn 360, 208 N.W. 8; Van Loon v. Griffin, 34 Minn. 444, 26 N.W. 601. The parts of the return shown to be false were properly ordered stricken as sham.
What we have said is not to be taken as an intimation whether or not the contract claimed to have been made was valid.
The contract and all claims based on it are therefore entirely eliminated from the case.
2. The parts of the answer claimed to be frivolous, other than the claim of liability on quasi contract, raise only the question whether the statutes authorized the city to assess petitioner's land for the improvement. The statute under which the assessment was levied, section 1885, reads as follows: "The cost of constructing any district sewer * * * may be assessed against all the land in the sewer district subject to assessments for local improvements." It is conceded that the petitioner's land is in the sewer district. No claim is made that the land is exempt from assessment for local improvements in virtue of the provisions of the Constitution, Art. 9, § 1, and Mason Minn.St.1927, § 1975, declaring that all public school houses and all public property exclusively used for any public purpose shall be exempt from taxation. Quite on the contrary it is conceded that although the legislature may not authorize the taxation of public property, it may by statute permit the levy of special assessments for local improvements against such property. Petitioner asserts that § 1885 does not indicate legislative intent to authorize the assessment. Respondent urges that by the use of the words "all the land" an intention to permit the assessment of public property is manifested.
That petitioner's land may not be assessed for the sewer is settled by our decision in State v. Board of Education of City of Duluth, 133 Minn. 386, 158 N.W. 635, L. R.A.1916F, 861, where we held that, while the legislature may authorize the assessment of school property for local improvements, such authorization must be explicit and that where there is no express statutory authorization, the legislative failure so to provide will be deemed as withholding the power to assess, since tax and assessment laws ordinarily operate on privately owned property to raise money by the public and that...
To continue reading
Request your trial