State ex rel. Board of Education v. McGonagle

STRAUP, 0. J. An application is made by tbe board of education of Salt Take City for a writ of mandate against tbe city engineer of that city requiring bim to issue a permit to enable tbe board to connect a school building with tbe public sewer of tbe city. Tbe substance of tbe petition is, that tbe city engineer is ex officio tbe supervisor of tbe sewer system of the city and has supervision and control of it; that it is provided by ordinance of tbe city that before a sewer connection can be made an application in writing must be filed with tbe engineer, accompanied by plans showing tbe cause of tbe connection sought to be made, tbe size and location of all branches located therewith, and payment of a fee as prescribed by tbe ordinance; that such an application was filed, .•a tender made of tbe fee, and a demand for a permit, and that the engineer refused to issue it upon tbe ground that tbe board bad refused to pay a special assessment levied against tbe school property of tbe board for tbe construction of tbe public sewer. To this petition tbe engineer interposed a demurrer for want of facts, and filed an answer. Tbe relator moved for judgment on tbe pleadings. Tbe questions of law raised by tbe demurrer and tbe motion may be considered together. It is urged by tbe engineer that mandamus does not lie, ¡because tbe performance of tbe act sought to be directed by tbe court is not one which, under tbe statute (Section 3641, Comp. Laws 1907), the law specially enjoins as a duty resulting from an office, trust, or station or to compel the admission of tbe relator to tbe use or enjoyment of a right to which it is entitled, and from which it is unlawfully pre eluded by tbe engineer. Tbe performance of such acts— tbe issuing of permits — -is by law specially enjoined on tbe engineer as a duty resulting from bis office. By ordinance it is bis duty to issue permits when applications therefor [279] are made, accompanied by plans, and upon tbe payment of the fee. No one else is authorized to issue them. When a written application is made in compliance with the ordinance, the performance of the act — the issuance of the permit — is one which the engineer is required to perform in obedience to the mandate of legal authority, without regard to his own judgment or opinion concerning the propriety or impropriety of the act to be performed. True, the engineer, in a sense, was required to exercise some judgment with respect to the plans accompanying the application, and to ascertain whether the application, in such respect, was in compliance with the ordinance, yet the duty to perform the act was none the less ministerial. The fact that a person who is required to perform an act may be required to satisfy himself of the existence of a state of facts under which he is given the right or warrant to perform the required duty, does not render the performance of the act discretionary and not ministerial. The alleged and admitted facts show that upon a published notice of intention Salt Lake City extended and constructed a public sewer laterally, along a public street of the city, and to defray the abutters’ portion of the costs and expenses thereof it levied a local or special assessment or tax on the lands abutting the street along which the sewer was constructed. The board of education owned land abutting the street which was used for school purposes, and upon which a school building is maintained by it for public school purposes. The tax or assessment levied against such land of the board amounted to ninety-eight dollars, payable in annual installments of sixteen dollars and thirty-four cents. It is further provided by an ordinance of the city that whenever property had been previously assessed for a sewer or a sewer extension, and any portion of such assessment remained due and delinquent at the time of an application for a permit for a connection, no permit should be issued until such delinquent assessment was paid. The board refused to pay the assessment on the ground of an exemption. The engineer contended that he had no authority or power to issue the [280] permit until the delinquent assessment was paid, and on that ground refused the permit. We have a statute (section 1933, Comp. Laws 1907), which provides that “all property, real and personal, held by the board of education, shall be exempt from general and special taxation, and from all local assessments for any purpose, and shall not be taken in any manner for debt.” In the case of Wey v. Salt Lake City, 35 Utah 504, 101 Pac. 381, this statute was held constitutional. It was there decided that lands owned by the hoard of education were exempt from local assessment or taxation to pay the 1 expenses of improving streets. We think it equally clear that the lands owned by the board are exempt from local assessment or special taxation for the construction of a public sewer, and that the assessment levied against it by the city was invalid. The ordinance pointed to by the engineer forbidding him to issue a permit until the alleged delinquent assessment was paid does, therefore, not aid him. Of necessity, such ordinance refers only to a valid assessment levied against lands subject to the assessment. It, however, is urged, that though the property was exempt and the assessment invalid still, the city being the owner of the sewer, could lawfully impose the payment of a reasonable charge before it was required to permit the board to connect with or use the sewer, and that the payment of ninety-eight dollars, the amount of the assessment, by the board for the use of the sewer was a reasonable charge. The legislature has seen fit to exempt all property of the board, both real aand personal, from special taxation and all local assessments, for any purpose. Since the property was not subject to the assessment, and the levy for that reason invalid and the assessment unenforceable, to then permit the municipality to impose as a condition of tapping and making a connection with the public sewer the payment of a charge for the use of the sewer, is to allow the municipality, to do indirectly what it cannot do directly. (State ex rel. Dunner v. Graydon, 6 Ohio Cir. Ct. R. 634; Meyler v. Meadville, 23 Pa. Co. Ct. R. 119.) [281] We think the duty to issue the permit in- the premises is plain, and that no good reason has been shown why it was refused. We are of the opinion that the relator is entitled to the writ requiring the engineer to issue the permit. Such is the order. Costs to the relator. ERICK and McCARTT, JJ., concur.