author: DANIEL F. FOLEY, Judge

text:
    Edwin Wayne JOBE, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
    No. C4-99-1858.
    Court of Appeals of Minnesota.
    May 9, 2000.

      Samuel A. McCloud, Carson J. Heefner, McCloud & Boedigheimer, P.A., Shakopee, for appellant.
    Mike Hatch, Attorney General, Max Keller, Assistant Attorney General, St. Paul, for respondent.
    Considered and decided by HARTEN, Presiding Judge, DAVIES, Judge, and FOLEY, Judge.
   OPINION

DANIEL F. FOLEY, Judge

Edwin Jobe appeals from his driver’s license revocation, arguing that the stop underlying his DWI arrest was precipitated by an informant tip that was not sufficiently reliable to justify the stop. Because we find that under the totality of the circumstances the tip was sufficiently reliable to give the officer a reasonable suspicion of criminal activity, we affirm.

FACTS

On the evening Jobe was arrested, a man called 911 and reported that there was a “drunk” in front of him who was “swerving around on the road.” The man described the vehicle as a two-tone tan and brown Ford pickup truck with a topper, license plate number CJZ-334, and told a dispatcher that the vehicle was heading northbound on LorRay Drive. At the dispatcher’s request, the man identified himself as David Hanson. The dispatcher did not ask for Hanson’s address or telephone number. When the dispatcher asked for a cross-street near the drivers, Hanson said that he had seen a patrol headed the opposite direction on LorRay Drive. Hanson then told the dispatcher that he had arrived home, but he had seen the patrol car make a U-turn to follow the Ford pickup.

Officer Ronald Leiferman was patrolling on LorRay Drive when Hanson’s call came in. Leiferman had been heading southbound on LorRay Drive. He turned west on Howard Drive, but made a U-turn when dispatch told him that the suspect driver was headed in the opposite direction. Leiferman turned left on Haughton and spotted two vehicles. He stopped the lead car, a pickup truck matching Hanson’s description, and saw the other car turn off Haughton. After conducting several sobriety tests, Leiferman arrested Jobe for driving under the influence.

Leiferman testified that he saw only two vehicles in the area and assumed that the second car was driven by David Hanson. He testified that he did not take down the second car’s license plate and that he later looked in the phone book but was unable to locate a listing for a David Hanson who resided near the area where the second car turned off Haughton.

ISSUE

Was the informant’s tip sufficiently reliable to justify a traffic stop?

ANALYSIS

Under the Fourth Amendment, a police officer must have a specific and articulable suspicion of a traffic violation to justify stopping a vehicle. Marben v. State, Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn.1980). The factual basis required to support a “routine traffic check” is minimal, however, and that factual basis may be supplied by information that the officer acquires from another person, including an informant. Id.; see also Olson v. Commissioner of Pub. Safety, 371 N.W.2d 552, 554 (Minn.1985) (rejecting argument that reasonable suspicion may be based only on officer’s personal observation). The validity of a stop on given facts is purely a legal determination for this court. Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn.1985).

In order to justify a traffic stop, an informant’s tip must possess sufficient “indicia of reliability.” Olson, 371 N.W.2d at 556. The Minnesota cases dealing with traffic stops based on informant tips have focused mainly on two factors: (1) identifying information given by the informant, and (2) the facts that support the informant’s assertion that a driver is under the influence. See City of Minnetonka v. Shepherd, 420 N.W.2d 887, 890-91 (Minn.1988) (examining both factors). Neither of these factors is determinative, however; we evaluate the basis for a stop in light of the totality of the circumstances. Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990); State v. Lipinski, 419 N.W.2d 651, 653 (Minn.App.1988). We begin with the presumption that citizen informants are reliable. Marben, 294 N.W.2d at 699.

Considering the totality of the circumstances, Leiferman had a reasonable basis for stopping Jobe’s vehicle. Hanson identified himself by name and told the dispatcher location and direction of travel. See Shepherd, 420 N.W.2d at 890 (tip reliable when informant identified himself as station attendant at particular gas station); Playle v. Commissioner of Pub. Safety, 439 N.W.2d 747, 748 (Minn.App.1989) (tip reliable when informant identified as employee of particular Burger King). The information Hanson offered about Jobe’s vehicle and driving conduct reinforced the reliability of the tip. He also told the dispatcher when he saw the patrol car in the area and when the patrol was positioned behind Jobe’s vehicle. This information demonstrated that Hanson’s tip was based on personal observation and offered an example of driving conduct to support his assertion that Jobe was driving under the influence. See Shepherd, 420 N.W.2d at 891 (tip reliable when circumstances allowed inference that informant had personally observed driver); Marben, 294 N.W.2d at 699 (tip reliable when truck driver gave his location in relation to patrol car and suspect vehicle so that trooper could verify that truck driver was personally observing driver); State v. Newgard, 392 N.W.2d 27, 29-30 (Minn.App.1986) (tip reliable when caller described drunken conduct). When Leiferman arrived in the area, he found the vehicle described by Hanson ahead of a second vehicle, which he reasonably inferred was Hanson’s vehicle. Based on the above information, Leif-erman properly concluded that Hanson’s tip was reliable.

Jobe argues that because the state did not subsequently locate Hanson, his tip was not reliable. We disagree. We have recognized that

[w]hen an informant provides sufficient information so that he may be located and held accountable for providing false information, the officer is justified in assuming the caller is being truthful in identifying himself.

Playle, 439 N.W.2d at 748 (citing Shepherd, 420 N.W.2d at 890). Hanson not only gave his name, but also the location of his car in relation to Jobe’s and Leifer-man’s. This information was sufficient to allow the police to further investigate the tip. For instance, Leiferman could have taken down Hanson’s license plate or a description of his vehicle. That Leiferman chose not to do so does not mean he was unjustified in believing that Hanson had correctly identified himself. See Shepherd, 420 N.W.2d at 890 (fact that police did not verify caller’s employment as station attendant did not mean officer was unjustified in believing caller was who he said he was).

Jobe also urges the court to adopt a rule requiring dispatchers to collect addresses and phone numbers from citizen informants. Under that rule, Jobe asserts, we could determine whether an informant tip was reliable based on whether police or counsel are subsequently able to locate the informant. While we agree that collecting addresses and phone numbers would be a good practice for dispatchers to adopt, we do not believe the Fourth Amendment requires such a rule, and we decline to adopt it.

The rule Jobe urges would shift the timeframe of the reasonableness determination from the time of the stop to some later point in time. The Fourth Amendment asks us to inquire whether an officer, at the time of a stop, under the totality of the circumstances, had a reasonable suspicion of criminal activity. See Berge, 374 N.W.2d at 732 (stop is lawful if officer can articulate that he had particularized and objective basis for suspecting particular person stopped of criminal activity); cf. Andersen v. Commissioner of Pub. Safety, 410 N.W.2d 17, 19 (Minn.App.1987) (probable cause evaluated from viewpoint of prudent officer on the scene at the time of arrest) (emphasis added); Wayne R. La-Fave, Search and Seizure, § 3.2(d) (3d ed. 1996) (“It is axiomatic that hindsight may not be employed in determining whether a prior arrest or search was made on probable cause.”). The fact that police fail to locate an informant later does not show that they were unjustified in relying on the tip at the time of the investigatory stop. See Shepherd, 420 N.W.2d . at 890, n. 1 (identifying information supports reliability of tip even if police do not follow up and confirm the information); State v. Davis, 393 N.W.2d 179, 181 (Minn.1986) (face-to-face tip from unidentified motorist who continued on her way found reliable); Marben, 294 N.W.2d at 699 (tip from unidentified trucker found reliable).

Jobe finally asserts that a stop is not justified unless the informant observes a traffic violation and that swerving within one’s own lane is not a violation. We note initially that Hanson said Jobe was “swerving around on the road,” which gives no indication that the swerving was limited to Jobe’s own lane. Additionally, “[a]n actual violation of the Vehicle and Traffic Law need not be detectable” to justify a stop. Marben, 294 N.W.2d at 699. On the facts of this case, the stop of Jobe’s car was justified. See State v. Engholm, 290 N.W.2d 780, 782, 784 (Minn.1980) (stop justified when car was travel-ling 15 to 20 miles per hour in 30 miles per hour speed zone and weaving within its own lane); State v. Ellanson, 293 Minn. 490, 490-91, 198 N.W.2d 136, 137 (1972) (officer had right to stop driver to investigate unusual driving after observing driver swerving within his own lane).

DECISION

Because Hanson’s tip possessed sufficient indicia of reliability to support Leif-erman’s reasonable suspicion that Jobe was driving under the influence, we affirm the district court’s determination that the investigatory stop was valid and accordingly affirm revocation of Jobe’s driver’s license.

Affirmed.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn.Const. art. VI, § 10.

      . In reaching this conclusion, we have considered the United States Supreme Court's recent opinion in Florida v. J.L., - U.S. -, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), which was handed down after oral arguments in this case. That case, however, is distinguishable on its facts and does not control the decision here.

        . The state made minimal efforts to locate Hanson following Jobe’s arrest and was not required to locate Hanson. Thus, we disagree with Jobe's characterization of Hanson as unidentifiable or anonymous.

      . In Shepherd, the court recognized that if police later locate an informant, that fact may defeat an argument that identifying information was inadequate. Id. at 890, n. 1. It does not follow, however, that the police’s failure to locate an informant, by itself, proves that identifying information given by an informant was insufficient to support the reliability of the tip.


source: Caselaw Access Project

author: DAVIES, Judge.

license: Public Domain

text:
    In the Matter of CONDEMNATION BY the CITY OF MINNEAPOLIS OF CERTAIN LANDS IN the CITY OF MINNEAPOLIS for the Lyn/Lake Municipal Parking Lot Project.
    No. C5-99-1996.
    Court of Appeals of Minnesota.
    May 9, 2000.

      Jeffrey R. Brauchle, Sherry Davis White, Jeffrey R. Brauchle, P.A., Minneapolis, for respondent City of Minneapolis.
    Thomas H. Boyd, Sherman Winthrop, Winthrop & Weinstine, P.A., St. Paul, for appellant Joseph E. Commers.
    Considered and decided by SHUMAKER, Presiding Judge, CRIPPEN, Judge, and DAVIES, Judge.
   OPINION

DAVIES, Judge.

Joseph E. Commers Limited Partnership (Commers) appeals from the district court’s denial of its motion for judgment-rate interest on the commissioners’ award following a quick-take condemnation. Commers argued that it was entitled to interest at the judgment rate on the commissioners’ award from the date respondent City of Minneapolis (the city) took possession of the property through the date the court ordered the funds distributed to Commers. See Minn.Stat. § 117.195, subd. 1 (condemnation damages “shall bear interest” from the time of the taking at the judgment rate). The city argued, and the district court agreed, that Commers was not entitled to interest on the deposited funds at the judgment rate because Com-mers had become entitled to the funds when they were deposited. But because the funds should not be deemed available to Commers until released by the court, we reverse and remand with directions.

FACTS

Commers was the fee owner of property located at 600 and 610 West Lake Street in Minneapolis (parcel 13). On November 3, 1998, the city took possession of parcel 13 in a quick-take condemnation under Minn. Stat. § 117.042. The city deposited with the district court $425,000, the approved appraised value. As required by statute, the district court accountant placed these funds in an interest-bearing account. Id.

After court-appointed commissioners issued their final award, the city deposited $97,680.75 (the $95,000 difference between the original $425,000 deposit and the commissioners’ award of $520,000, plus $2,680.75 in judgment-rate interest on that difference). On June 10, 1999, the court ordered distribution of $528,448.16 to Commers, which represented: (1) the $97,680.75 deposited by the city following the commissioners’ final award; (2) the original deposit of $425,000; and (3) the $5,767.41 in interest that the original deposit earned in an interest-bearing account. Commers requested that item (3) be recalculated to provide interest at the judgment rate from the date of taking, amounting to an additional $4,632.34.

The district court denied Commers’ motion, and Commers appeals.

ISSUE

Did the district court err in denying Commers’ request for additional interest at the judgment rate on the original quick-take deposit?

ANALYSIS

A landowner is entitled to just compensation for property taken by the government for public use. U.S. Const, amend. V; Minn. Const, art. I, § 13. Interest on a condemnation award from the time of taking until payment is an element of just compensation. State by Spannaus v. Carney, 309 N.W.2d 775, 776 (Minn.1981); State by Humphrey v. Baillon Co., 480 N.W.2d 673, 675 (Minn.App.1992), revieiu denied (Minn. Mar. 26,1992). Thus, “as a general rule, a condemnor is liable for interest on the award.” In re Condemnation by Minneapolis Comm. Dev. Agency, 447 N.W.2d 891, 894 (Minn.App.1989), review denied (Minn. Jan. 12, 1990).

Commers argues that it is entitled to interest at the judgment rate under the following statute:

All damages allowed under this chapter, whether by the commissioners or upon appeal, shall bear interest from the time of the filing of the commissioner’s report or from the date of the petitioner’s possession whichever occurs first. The rate of interest shall be determined according to section 549.09.

Minn.Stat. § 117.195, subd. 1. Minn.Stat. § 549.09 (1998) sets the interest for verdicts, awards, and judgments. The interpretation of a statute is a question of law, which this court reviews de novo. Opus N.W., L.L.C. v. Minneapolis Comm. Dev. Agency, 599 N.W.2d 582, 583 (Minn.App.1999).

The city acquired possession of parcel 13 under the quick-take statute, which allowed the city either to pay Commers directly or to deposit the amount of the approved appraised property value with the district court for placement in an interest-bearing account. Minn.Stat. § 117.042. The city chose to deposit the $425,000 with the. district court.

When determining the duration of the interest obligation under the quick-take statute, this court has focused on when the funds become “available,” distinguished from when the funds have been “deposited.” Minneapolis Comm. Dev. Agency, 447 N.W.2d at 894 (“act of depositing monies does not absolve the condemnor of interest liability”; judgment interest “continues until the landowner becomes entitled to the deposited, funds”). The landowner’s initial request for disbursement of the funds in that case was denied by the district court. That meant the funds did not become “available” to the landowner until the court ordered the funds released; the court therefore held the development agency responsible for the difference between interest at the judgment rate and the interest actually earned on the deposit from the taking until the court ordered the funds released. Id. at 893-94.

Commers insists that the burden of immediately moving for release of the deposited funds should not be placed on landowners. We agree. The city had a choice either to pay the funds directly to Com-mers or to deposit the funds with the district court. See Minn.Stat. § 117.042 (“before taking title and possession [con-demnor] shall pay to the owner or deposit with the court” the approved appraised property value). If the funds were deposited, Commers, to obtain them, was required to bring a motion, incur filing and other fees, and overcome legal obstacles. Although the city claims it would not have opposed a motion to release the funds, and speculates that the court would have granted such a motion in this case, a risk remained that the motion might be denied. We are even more uncertain whether such a motion will, or should, be routinely granted in other cases.

We therefore conclude that funds deposited with the court under the quick-take statute do not become “available” until the district court issues an order for release, distribution, or disbursement of the funds. See Minneapolis Comm. Dev. Agency, 447 N.W.2d at 894 (when funds not available and rate of return is controlled by court administrator, condemnor’s interest liability at judgment rate continues until court orders distribution of funds). Not until the funds are released does the landowner becomes responsible for the funds’ investment or use. Id.

Both parties discuss the supreme court’s decision in Fine v. City of Minneapolis, 391 N.W.2d 853 (Minn.1986). But Fine is inapplicable, for it did not involve a condemnation award made by commissioners; rather, the

parties chose to negotiate and to defer both the disbursement of the funds and the transfer of title and possession until such time as they were able to stipulate to their respective rights and responsibilities * * ⅜.

Id. at 856. Most significantly, the parties’ stipulation did not contemplate the “payment of interest” and the parties “specifically deleted the interest provision.” Id. at 854.

DECISION

The district court’s order is reversed, and the matter is remanded for the district court to calculate the additional interest Commers is entitled to receive, if any, from the date of taking to the date the funds were released by the district court. That amount is the difference between interest on the deposited funds calculated at the judgment rate and the interest actually earned (and already paid over to Com-mers).

Reversed and remanded.


author: HALBROOKS, Judge

text:
    James Patrick McDERMOTT, et al., Relators, v. MINNESOTA TEACHERS RETIREMENT FUND, Respondent.
    No. C2-99-1678.
    Court of Appeals of Minnesota.
    May 9, 2000.

      Roger J. Aronson, Rischmiller, Knippel & Aronson, Minneapolis, for relators.
    Mike Hatch, Attorney General, Jon K. Murphy, Assistant Attorney General, St. Paul, for respondent.
    Considered and decided by HALBROOKS, Presiding Judge, KALITOWSKI, Judge, and WILLIS, Judge.
   OPINION

HALBROOKS, Judge

Relators James Patrick McDermott and Robert John Gunderson challenge a decision by the Board of Trustees of the Minnesota Teachers Retirement Association (TRA Board) determining that the reemployed-annuitant earnings limitation set out in Minn.Stat. §§ 354.41, subd. 4b, 354.44, subd. 5 (1998), applies to relators’ entitlement to receive retirement benefits from the Teachers Retirement Association (TRA). Relators argue that because their current employer, Education Minnesota (EdMn), does not employ “persons who are covered by the Minnesota teachers retirement association by virtue of that employment” as required by Minn.Stat. § 354.41, subd. 4b, relators may begin receiving retirement benefits while they continue their employment. We affirm the decision of the TRA Board.

FACTS

Relators James McDermott and Robert Gunderson began working as teachers in the 1960s. In that capacity, they were eligible to participate in TRA. •

TRA is a public retirement program for Minnesota’s licensed public-school teachers. It also allows teachers who take a leave of absence to work for labor organizations that represent public-school teachers to continue their participation in the program. Minn.Stat. § 354.41, subd. 4(a) (1998).

After relators left their employment as teachers, they became employees of the Minnesota Federation of Teachers (MFT), a labor organization that represented public-school teachers and administrators. Because the MFT had no pension plan, relators elected to continue their participation in TRA while employed by the MFT.

On August 31, 1998, MFT merged with the Minnesota Education Association (MEA) to become EdMn. As a result, rela-tors’ MFT employment ended and they became employees of EdMn. EdMn has a privately-sponsored pension plan for employees and makes no contributions for employees who elect to remain in TRA. Thus, those' employees and officers who elect to continue TRA participation are responsible for payment of both the employer and employee contributions.

For retirement purposes, TRA considered relators’ employment with MFT to have terminated, making them eligible to begin receiving TRA benefits. TRA subsequently informed relators that if they applied for retirement and received TRA retirement benefits while employed by EdMn, their TRA benefits would be subject to the earnings limitation set forth in Minn.Stat. § 354.44, subd. 5 (1998).

Relators appealed this decision to the TRA Board. On June 21, 1999, the TRA Board heard their petitions and determined that the earnings limitation of Minn. Stat. § 354.44, subd. 5, applied to relators’ employment with EdMn, because EdMn is an “entity employing persons who are covered by the Minnesota teachers retirement association by virtue of that employment.” Minn.Stat. § 354.41, subd. 4b (1998). On October 1, 1999, relators petitioned for a writ of certiorari from this court to challenge the administrative decision of the TRA Board.

ISSUE

Did the TRA Board err in concluding EdMn employs individuals who are TRA participants “by virtue of that employment” making relators subject to the reemployed-annuitant earnings limitation of Minn.Stat. § 354.44, subd. 5 (1998)?

ANALYSIS

Determinations of the TRA Board are subject to review by writ of certiorari. Minn.Stat. § 354.071, subd. 9 (1998). We review the record to see whether the decision was “arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it.” Stang v. Minnesota Teachers Retirement Ass’n Bd. of Trustees, 566 N.W.2d 345, 347 (Minn.App.1997).

The construction of the teachers’ retirement statute is, however, a question of law, subject to de novo review by this court. See Hibbing Educ. Ass’n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985). “Because the teachers’ retirement statutes are remedial in nature, they are entitled to liberal construction to insure the beneficial purposes intended.” Stang, 566 N.W.2d at 349 (citing Mattson v. Flynn, 216 Minn. 354, 361, 13 N.W.2d 11, 15 (1944)).

Further, when the meaning of the terms of a statute are in doubt, courts give great weight to the construction given by the body charged with administering the problem sought to be remedied by the statute.

In re Twedt, 598 N.W.2d 11, 13 (Minn.App.1999) (citing Mammenga v. State Dep’t of Human Servs., 442 N.W.2d 786, 792 (Minn.1989)), review denied (Minn. Sept. 28,1999).

Here, the parties agree that the issue before the TRA Board and this court presents a question of law — whether under Minn.Stat. § 354.41, subd. 4b (1998), EdMn employs individuals who are TRA participants “by virtue of that employment” and are thus subject to the reem-ploye d-annuitant earnings limitation of Minn.Stat. § 354.44, subd. 5 (1998). Minn. Stat. § 354.41, subd. 4b, provides:

Earning restrictions apply. A retirement annuity is only payable, if the person has met any other applicable requirements, upon the termination by the person who elected coverage under subdivision 4 of employment by the labor organization. The reemployed annuitant earnings limitation set forth in section 354.44, subdivision 5, applies in the event that the person who elected coverage under subdivision 4 retires and is subsequently reemployed while an annuitant by the labor organization or by any other entity employing persons who are covered by the Minnesota teachers retirement association by virtue of that employment.

(Emphasis added.)

Relators argue EdMn does not “employ persons who are covered by the Minnesota teachers retirement association by virtue of that employment,” and, therefore, they are not subject to the income limitation of Minn.Stat. § 354.44, subd. 5. In support of their argument, they point out that EdMn does not require any employee to remain a member of TRA and does not make the employer contribution for any of its employees. They also note that in contrast to Minn.Stat. § 354.41, subd. 4(a) (1998), which allows employees of MEA and MFT to remain members of TRA, there is not a statutory provision allowing members to remain in TRA because of their employment with EdMn. Finally, they argue EdMn employs persons who are participating in TRA by virtue of their previous employment with MFT, not as a result of their existing employment with EdMn.

In response, the state argues that other EdMn employees are continuing to participate in TRA and are accruing additional years of TRA service credit and making pension contributions on the basis of their employment and salary with EdMn, not their past employment with MFT. As a result of the participation of other EdMn employees in TRA, the origin of relators’ TRA participation is not relevant. Moreover, the state contends relators’ reading of the statute would make it inapplicable to anyone.

We conclude a plain reading of the statute supports the state’s position and comports with the legislature’s treatment of other TRA retirees who return to work for nonunion-TRA employers. See State v. Taylor, 590 N.W.2d 155, 158 (Minn.App.1999) (stating courts “must follow the plain meaning of the words of a statute when they are sufficient in and of themselves to determine the purpose of the legislation and must reject a construction that leads to absurd or unreasonable results”) (citation omitted), review denied (Minn. May 18, 1999). Relators indicated at the hearing before the TRA Board that other employees of EdMn are continuing to participate in TRA and are accruing additional years of TRA service credit and making pension contributions on the basis of their current employment and salary with EdMn. Thus, although past employment with MFT may have been the initial basis for their eligibility for participating in TRA, their continued accrual of benefits is a result of their current employment with EdMn. Thus, EdMn fits the definition of an “entity employing persons who are covered by the Minnesota teachers retirement association by virtue of that employment” Minn.Stat. § 354.41, subd. 4b.

Moreover, prior to the creation of EdMn, the legislature passed special legislation allowing the employees of MFT and MEA to remain members of TRA when the organizations merged. 1997 Minn. Laws 1st Spec. Sess. ch. 4, art. 7, § 56. It states in relevant part:

Notwithstanding Minnesota Statutes, section 354.41, subdivision 4, a person who is a member of the teacher retirement association and is employed by the Minnesota federation of teachers or its affiliated branches within the state or by the Minnesota education association on July 1, 1997, may remain a coordinated member.

Id.

Thus, although the statute does not refer specifically to EdMn, the special legislation apparently contemplated its creation and was passed to allow MFT and MEA employees to continue their membership in TRA after the merger of the organizations.

Additionally, it appears that the intent of Minn.Stat. § 354.41, subd. 4(a) is to allow teachers who work for the teachers’ union to receive the same retirement benefits as other teachers. Applying this rationale to the question of whether earnings restrictions apply, we conclude that they do. Under Minn.Stat. § 354.44, subd. 5, if a teacher retires and then resumes teaching for an employer unit subject to chapter 354, they are subject to earnings restrictions. Similarly, if a union employee participating in TRA retires and is later employed by an employer unit subject to chapter 354, he or she is subject to earnings restrictions. Minn.Stat. § 354.44, subd. 5. It is, therefore, logical that Minn. Stat. § 354.41, subd. 4b, provides the same earnings restrictions for union-employed TRA members who retire and are reemployed by unions as Minn.Stat. § 354.44, subd. 5, does for TRA members who retire and are reemployed by other employer units subject to chapter 354.

DECISION

We conclude that under Minn.Stat. § 354.41, subd. 4b (1998), EdMn employs individuals who are TRA participants “by virtue of that employment.” Therefore, if relators elect to begin receiving TRA retirement benefits while they are employed by EdMn they will be subject to the reemployed-annuitant earnings limitation of Minn.Stat. § 354.44, subd. 5 (1998).

Affirmed.


author: MORRIS, Chief Justice.

text:
    AZAR v. OLSON et al.
    No. 7408.
    Supreme Court of North Dakota.
    Nov. 10, 1953.
    J. K. Murray, Bismarck, for defendant-appellant, Katie Haggard. ■
    ' Register & Thompson; ■ Bismarck, for plaintiff-respondent.
   MORRIS, Chief Justice.

This is an appeal from an order denying a motion of the defendant, Katie Haggard, to vacate a default judgment entered in an action to quiet title to two quarter sections of land in Sioux County. A summons and a verified complaint setting forth a statutory action to quiet title were filed in the Office of the Clerk of the District Court of Siqux County on July 7, 1952. An affidavit for service by publication,• accompanied by a sheriff’s return, was filed July 14, 1952. The .return recited that the sheriff had made diligent search and inquiry for the defendants in the action, and each of them, for the purpose of serving the summons-, notice, and complaint upon each of the defendants and that the.sheriff had been unable to make personal service on any of the defendants in the action. The summons, together with the attached notice setting forth a description of the property involved and stating that the purpose of .the action was to determine adverse claims to this property and that no personal claim was made against -any of the defendants, was published in a newspaper as provided by law, Section 28-0622, NDRC 1949 Supp., on July 24, July 31, and August 7, 1952. On September 24, 1952, findings of fact, conclusions of law, and order, for.judgment were signed by the court and on. the- same day judgment was entered quieting title in the plaintiff.. On February. 23, 1953, the defendant, Katie Haggard, served on plaintiff’s attorney a notice of motion to vacate the default .judgment upon five grounds, among them being

“That the' defendant had no notice nor-knowledge of the pendency of the above entitled action against hér at any time prior to the entry of' the Judgment therein; that the defendant, Katie Haggard, has a good and substantial defense on the' merits and the whole thereof to the above-entitled action and the motion therein stated; that' not more than' four months have expired since the entry of judgment herein; that the title of such property still remains in the defendant and has. not been transferred by her to any purchaser in good faith.” ■■

After hearing, -the motion to vacate .the judgment was denied and Katie Haggard appeals.-:

Our code contains three sections which bear upon the subject of relief from default' judgments. In the chapter" dealing with service of process we find Section 28-0627, which, in part, reads as follows:

“Except in an action for divorce, the defendant upon whom service by publication is made, or his representative, upon making it appear to the satisfaction of the court by affidavit, stating the facts, that he has a good and meritorious defense to the action, and that ’ he had no notice or knowledge of the pendency of the action so as to enable him to make application to defend before the entry of .judgment therein, and upon filing an affidavit of merits, may be allowed to defend at any time within three years after entry of judgment on such terms 'as may be just.”

The statute further provides that if any defendant has received ⅜ copy of the summons and complaint, either by mail or by personal service outside of the state, he shall -be deemed to have had notice of the pendency of the action and of the judgment entered therein.

In the chapter dealing with relief from defaults and hardships, "Section 28-2901 provides: ■ :

.“The court, in its discretion, and up.on such terms as may be just, at any time within one year .after notice thereof, may relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inad- . vertence, surprise, or excusable neglect, and may supply an omission in . any proceeding.” ■ ,■

The chapter 'dealing with'actions to quiet title and determine claims to real estate contains , Section 32-1713 which provides:

“A defendant in'an action to’determine adverse claims, proceeded against by name or as an unknown party, or his representative, ori" application and sufficient causé shown at any time before trial, must be allowed to defend on such terms as may be just, and any such defendant or his representatives upon good cause shown, and, on such terms as may be just, may be allowed to defend after trial and within one year after the rendition of judgment therein, but not otherwise.”

Statutes such as ours are generally held to be remedial in nature and entitled to a liberal construction and application. 31 Am.Jur., Judgments, § 766, page 303; 49 C.J.S., Judgments, § 335, page 641; Withers v. Miller, 140 Kan. 123, 34 P.2d 110, 104 A.L.R. 692; Board of County Commissioners of Wyandotte County v. Axtell, 134 Kan. 304, 5 P.2d 1078. This court views with favor the trial of cases upon their merits. Tooz v. Tooz, 76 N.D. 492, 37 N.W.2d 493; Citizens’ National Bank v. Branden, 19 N.D. 489, 126 N.W. 102, 27 L.R.A.,N.S., 858.

The complaint in this action is in the statutory form to determine adverse claims. Chapter 32-17 NDRC 1943. The relief sought by the defendant Katie Haggard is governed by Section 32-1713, NDRC 1943, quoted above. The other sections which we have quoted, while having no direct hearing upon this controversy, are indicative of a legislative policy which distinguishes between relief from default judgments obtained after actual notice and relief from judgments obtained after constructive service concerning which the defaulting defendant had no knowledge.

Section 32-1713, NDRC 1943 was formerly Section 8156, C.L.1913. It has been before this court in but one case since it was originally enacted as a part of Chapter 5, SLND 1901. In that case, Hart v. Hone, 57 N.D. 590, 223 N.W. 346, 348, it is said:

“On an application to be relieved from a default judgment, the court will ‘ consider every fact and circumstance that has any reasonable bearing on whether sufficient cause has been shown why the judgment should be vacated. Hence the court will of necessity consider the mode of service. . Where there has been personal service, th.e defendant is charged with actual knowledge of the institution of the action, and, if he makes default, it becomes incumbent upon him to show why he failed to interpose an answer in the time provided by law. Where there has been constructive service, the service may be completed, defendant may default, and judgment may be rendered without any actual knowledge on the part of the defendant that an action has been commenced. Hence in cases of constructive service it is not the time of service, hut rather the time when the defendant receives actual knowledge of the service or the rendition of the judgment, that fixes the point of time that will be considered in determining whether he has or has not acted with reasonable diligence in seeking relief from the default. This follows from the inherent difference in the two modes of service. It does not follow, however, that the trial court has no discretion as to whether a default judgment should be vacated in cases of constructive service. On the contrary, section 8156 clearly indicates that the court has some discretion. It imposes, in all cases, upon a party seeking to be relieved from a default judgment, the burden of showing good cause why' such relief should be granted; apd such good cause unquestionably includes at least a prima facie showing that the defendant has a good meritorious defense. In other words, one who seeks to be relieved from a default judgment in an action to quiet title has the burden of presenting a prima facie showing, ‘that, if he had presented his defense, it would have prevailed, so that the judgment, as it stands, works injustice’ (1 Black on Judgments (2d Ed.) § 374), and that, if the judgment is vacated and the defendant allowed to defend, the trial may and probably will result in a judgment in his favor. It is true that, in applications ' for relief from a default judgment, the plaintiff will not be permitted to combat any defense claimed by the defendant and that the defense set forth in the answer or the affidavit of merits will, for the purpose of the case, be deemed true. The court will, however, examine the defense pleaded to see whether the same on its face constitutes a defense. Minnesota Thresher Manufacturing Co. v. Holz, 10 N.D. 16, 84 N.W. 581; Johannes v. Coghlan, 23 N.D. 588, 137 N.W. 822.”

That case involved an attack upon tax deed proceedings, and the court further said:

“If the defendant desired to challenge the validity of the proceedings, it was incumbent upon him to allege in’ his answer the particulars in which the proceedings were invalid. The answer will be searched in vain for any such averments. All that the answer contains is the bare legal conclusion ‘that said proceedings are in all things invalid and failed to create any estate or interest,’ etc. There is not the slightest attempt to point out in what specific respects the proceedings are invalid — wherein there was a failure to comply with the provisions of the law. Apparently it is conceded that the taxes were unpaid, and that the tax lien was valid, as the defendant in his answer concedes that the whole principal amount of the taxes, as well as interest and penalties, are due and constitute a lien on the land. The bare statement that the proceedings are invalid is merely a legal conclusion, and • does not constitute a statement of any defense against the tax title. It was incumbent upon the defendant to allege in his pleading the particulars in which the proceedings had failed to comply with the law.”

This court then upheld the trial court’s refusal to vacate the judgment.

We now proceed to examine the defendant’s motion and showing which she claims-entitles her to be relieved from the default judgment and the countershowing made by the plaintiff. The motion is accompanied by the affidavit of the defendant, Katie Haggard, stating that for more than twenty years she has been the owner of the property in question and believes that the plaintiff claims title through a tax deed from Sioux County and that she believes the tox deed is void for certain reasons, among them being

“that no proper or legal notice of expiration of the period of redemption was ever sérved on this affiant, nor any other person or party holding any lien, encumbrance, or interest in, or to said land; neither was any such notice ever served on the tenant in possession of same; * *

Katie Haggard’s affidavit also shows that she stated all the facts to her attorney who informed her that she has a good and substantial defense on the merits to plaintiff’s action; that the affiant resides in California and that her sons and daughters for a good many years have resided in Mandan, North Dakota, and that they knew at -all times where their mother resided; that she did hot receive any notice or knowledge of the pendency of plaintiff’s action or that such an action had been commenced until November 20, 1952, when she was informed thereof by her children; that she thereupon communicated with her attorney at Bismarck by letter and that she never received any notice of the tax deed proceedings or of the expiration of the period of redemption for the payment of taxes assessed against the land. Her statements with respect to the employment of her attorney are corroborated by his affidavit, which is as follows:

“J. K. Murray, being first duly sworn, deposes and says • that he was retained by the ¡defendant, Katie Haggard, to check up the title bn the land described in the complaint on or about the 25th day of November, 1952; that on account of the crowded conditions of the County Auditor’s Office at Fort Yates, North Dakota, he was unable to secure information ás to the status of the title of the land described in this action until sometime during the latter part of December, 1952 and that since that time and up until the present time he was unable to draft' proceedings to vacate the default judgment against the answering defendant, namely, Katie Haggard; that as the attorney for the answering defendant this affiant secured copies and information pertaining to the tax deed proceedings of the land involved in this action, that he obtained copies and information from the former County Auditor of Sioux County who at the time was making a specialty of preparing special abstracts for various persons, namely Vernon Thompson; that from such information this affiant was and is of the opinion that a tax deed embracing, land . in the above entitled action is null and ■ void for the reasons set out in the separate- . answer of the defendant, Katie Haggard.” ■ - •

The motion was also accompanied by an answer and counterclaim setting forth challenges to the validity of the tax deed that include allegations which, if established on trial, would render the deed void. None of the criticisms of the showing on the merits in Hart v. Hone, supra, apply to this case. Here facts stating a defense to plaintiff’s action to quiet title are set forth in both the affidavit and the answer of the defendant Katie Haggard.

The plaintiff’s countershowing contains the affidavits of the plaintiff and her attorney in which both state- that they never knew Katie Haggard and did not know her address at the time the proceedings resfilt-ing in the default judgment were conducted. The countershowing also includes a letter written, by Katie Haggard’s attorney to the attorney for the plaintiff, dated October 9, 1052, ’in which the former stated that he represented Katie Haggard with reference to the land in question and had learned about two weeks previously that the attorney was representing, Mrs. Azar but had not been able to get in touch with him. It further stated:

“If you have not entered a default,-1 want to interpose ah ■ answer for my' client. If'you', have, I am going to make a motion’'to vacate the default. No summons or complaint- was ever served on my client nor did she ever receive'any notice of the pendency of any action.”

The trial court in his order denying the motion gives great weight to this letter and from it reached the conclusion that Katie Haggard had actual notice and personal information or knowledge of the pen-dency of the action “two months prior to October 9, 1952 — this fact being established by the lettdr, marked ‘Plaintiff’s Exhibit 1.’ ” He also found as untrue her statements in her affidavit that she “never had nor received any notice or knowledge of the pendency of the above entitled action, nor that any such action was ever commenced until Nov. 20, 1952, she was informed by one of her sons or daughters in the city of Mandan, and that she thereupon, on or about November 20, 1952, communicated with her said attorney * * The judgment was entered September 24, 1952. The letter is dated October 9, 1952. It contains this statement:

“After some investigation, I learned about two -weeks ago that you were the attorney for this party.”

We find nothing in the letter, or otherwise in the record, to indicate that Katie .Haggard had knowledge of the pendency of the action two months before the date of the letter or that she knew of the pendency of the action' in time to employ an attorney and interpose an answer before default or before the judgment was .entered.' Her affidavit is to the contrary and stands uncon-troverte'd except for such implications' as may be drawn from the letter of her attorney. At the time the letter was written her attorney’s information regarding the action appears to have been meager. There is no indication that he received such information as he did have from her. We do not conclude-that this letter establishes that she knew of the pendency of the action prior to the entry of judgment. She has sworn positively that she did not have such knowledge- It is admitted that she did not'receive' a copy of the summons and complaint.None was ever attempted to be served upon her. Neither the plaintiff-nor her attorney knew this defendant’s whereabouts.' The affidavit of merits is sufficient to show that Katie Haggard has a defense and'the defense is pleaded in'an accompanying pro'posed answer. The application to vacate the judgment was instituted within five months after its entry. Under the showing made there appears to be no lack of reasonable diligence. The showing is ample-to entitle the defendant Katie Haggard to have the judgment set aside and to interpose her defense. The order appealed from is reversed and the district court is directed to enter an order setting aside the judgment and permitting Katie Haggard thirty days from ‘the entry thereof in which to serve her answer upon the plaintiff.

GRIMSON, CHRISTIANSON, SATH-RE and BURKE, JJ., concur.


author: . SATHRE, Judge.

text:
    EKREN v. MINNEAPOLIS, ST. P. & S. S. M. R. CO.
    No. 7360.
    Supreme Court of North Dakota.
    Nov. 19, 1953.
    Rehearing Denied Dec. 4, 1953.

      Rittgers, Hjellum & Weiss, Jamestown, J. F. X. Conmy, Fargo, for plaintiff and respondent.
    Aylmer & Butts, Jamestown, Conmy & Conmy, Fargo, for defendant and appellant.
   . SATHRE, Judge.

The plaintiff brings this action against the defendant for damages for .personal injury and property damages resulting from a collision between’his car and the defendant's train on a crossing at Kensal, Stuts-man County, North Dakota. He alleges in his complaint that the accident was due to the negligence of the defendant in failing to give proper signals when approaching the crossing and for failing to maintain proper safeguards at said crossing. In its answer tjie defendant denies any negligence on its part and alleges that the accident and damages to the plaintiff were due to plaintiff’s. own contributory negligence. The case was tried- to the court and a jury and the issues raised by the pleadings were sub- . mitted.to the jury and a verdict was returned in favor of the plaintiff upon which verdict judgment was entered. From this judgment defendant has appealed. At. the close of plaintiff’s case the defendant made a motion for a directed verdict in its favor upon the grounds that there is no testimony in the record showing any negligence on the part of the defendant proximately causing the plaintiff’s injuries and losses if any; and that the undisputed evidence shows the plaintiff to have been guilty of contributory negligence 'as a matter of law whidi con- ' trftmtory negligence was a proximate cause of his-losses and injuries. Motion was also' made -for dismissal of the action upon the same grounds. Both motions were denied by the trial court. At the close of the case when both parties had rested the defendant made a motion for a directed verdict upon the same grounds stated in the motion for a judgment of dismissal at the close of the plaintiff’s case. The motion was denied and the case was submitted to the jury. After the verdict the defendant made a motion for judgment notwithstanding the verdict upon the grounds and for the same reason as stated in the previous motions, which motion was denied by the trial court. The, defendant appealed from the judgment assigning numerous errors all of which rest upon the contention that there is no evidence in the case establishing negligence on the part of the defendant and that the evidence shows conclusively that the plaintiff was guilty of contributory negligence as a matter of law, and that his injuries and damages if any were the result of his own contributory negligence.

The defendant on this appeal has challenged the sufficiency of the evidence to sustain the verdict. It will be necessary therefore in considering the evidence, to take the view most favorable to the plaintiff. The defendant has pleaded contributory negligence and therefore the burden is upon the defendant to establish this defense by a preponderance of the evidence. If the defendant was negligent in the respects charged, the verdict must stand, unless it is established that the collision was due to the contributory negligence of the plaintiff. It is well settled that the question of contributory negligence is one of fact for the jury and becomes a question of law only when reasonable men 'can draw but one conclusion from the evidence. Martin v. Parkins, 55 N.D. 339, 213 N.W. 574, and cases there cited.

There is a sharp conflict in the evidence as to whether or not the defendant’s train gave proper warning in approaching the ■ crossing in question by sounding the whis- ■ tie and ringing the bell. The witnesses for the plaintiff all testified that the train did not sound the whistle nor ring the bell. Many of them said that they were in their usual places of business at the time of the accident and that ordinarily they could hear the whistle and the ringing of the bell of trains coming into Kensal. The train crew, however, that is, the engineer, -fireman and flagman.-all testified that they heard the whistle' and that the bell was ringing as usual at all of the crossings and particularly at the crossing in Kensal where the collision occurred. However for the purpose of this opinion we shall assume that the defendants were negligent in failing to sound the whistle and to ring the bell in approaching this crossing. On that theory we will proceed to examine the record in order to ascertain whether it is possible to say, viewing the evidence in the light most favorable to the plaintiff, that he was negligent as a matter' of law.

There is no dispute as to the physical facts in this case. The village of Ken-sal where the accident occurred has a population of 375 to 400 people. The Soo line railroad runs through the village in an easterly and westerly direction. There are three tracks, the service or house track to the south, next the passing track and lastly the main track. The accident occurred shortly before nine o’clock on the morning of November 12th at what is known as the east crossing which is approximately 626 feet east of the depot in Kensal. It was a cold morning and the sky was overcast but the visibility was good. The highway upon which the plaintiff was driving is near the south edge of Kensal and.turns north and crosses the east crossing at practically right angles. There were box cars on the service or house track on each side of this crossing. There were also grain elevators and other places of business such as coal sheds and an oil station located along the south side of the service track. The freight cars on each side of the crossing and the elevators and other buildings obstructed the view of anyone approaching the crossing from the south/ Neither the passing track nor the main track could be seen from the highway immediately south of the service track. The terrain to the east and west of the crossing was practically level or flat and there were no natural obstructions to interfere with a person’s view east and west after crossing the service track. The plaintiff was taking his two boys and a neighbor boy to school om the ■ morning of the accident. When he-was from 25 to 30 feet south from the first' or service track he stopped. However, as has been pointed out, at the place where he stopped his car- his view was entirely obstructed so that he could not see either the service track or the main track or any part' of the area-east or west of these two tracks. After he stopped 25 or 30 feet to the south of the service track he proceeded to cross all three tracks without stopping. He stated that he was •traveling at a speed of from 6 to 8 miles per hour; that when he started to cross the service track he intended to cross all three tracks without stopping, notwithstanding the fact that at the place where he did stop his view was obstructed both east and west, making it impossible for him to see whether or not there were any trains approaching on the passing track or on the main track east or west of "the crossing. He said he looked to the west to see if there was a switch engine near the depot which is located some 626 feet west of the railroad crossing, and that he did not look-east because, as he said, he did not have time; that he proceeded to cross the passing track and main track without intending to stop, and then the collision occurred.

The distance from the north rail of the house or service track to the south rail of the main track is 43 feet 3½ inches. The exact distances between the house track and the passing track and between the passing track and the main track are not shown in the record, but the plaintiff testified that he paced the distances and that the distance between the house' track and the passing track was 9 paces and the distance between the passing track and the main track was 6 paces. He estimated that his 'paces were about 3 feet which would make the distance between the house track and the passing track approximately 27 feet and the distance between the passing track and the main track about 18 feet. There was introduced in evidence two plats, defendants exhibits C and D, prepared by Martin Ha-gen an assistant- engineer, employed .by the engineering department of the defendant. These plats-were drawn to- scale and show the crossing where the accident' occurred and the surrounding areas' east and west of the crossing. Exhibit -C, is’ drawn to the .scalé of 1 inch to 100;-feet and shows the service track, the passing track and the main track. It also shows the .elevators- and other business places south of the service track and east and west of -the crossing; also the ■ freight cars on -the service track east and west of the crossing. .'.Exhibit D, a smaller plat is drawn to -the scale of. 1 inch to 20 feet. It shows the highway crossing, where the accident occurred, and the 3 .tracks more in detail than, defendants exhibit C. - It shows also the. planking of the 3 tracks, the box cars.and the elevators on the west and east sides of the-crossing. It also shows the crossing signs or- cross-bucks, to the north and west of the main line and to the south and east of the house tracks; there is some dispute, in the testimony. as to the width -of the opening between the freight cars .on the crossing. The plaintiff.testified that it was from-15'to 16 feet hut that he could nicely pass through. One of plaintiff’s witnesses testified that .he paced it and that if was 8 paces and that his steps were about 3 feet which .would-make the opening on the crossing .24 feet wide. The defendant’s witnesses testified that the opening was from 24 to 30 feet. At the trial the witness Hagen-projected a-line.''on exhibit D, extending'from a point 60 feet south from the center line of the main track in a northeasterly direction clearing all-permanent obstructions to a point where-.it would -intersect the main, track. This point of intersection was, 227 feet east from the center of the -cróssing on the main line. He then projected-a second line from a point 50 feet, south of the center line of the main track extending-in a northeasterly direction clearing-, all permanent obstructions to a point where it would intersect the main track. . This point of intersection was 465 feet east ■ from the center of the crossing ori the main line. He also 'proj ected a third line from a point 42 feet south of -the center line of the main line crossing .'and ex-* tending- in an easterly direction, cleáring •any permanent -obstructions and the box car ■located next to-.the: east.side of the crossing. This line runs- close to the service track and almost parallel with the main •line. .This last - liné would intersect the main line in the vicinity of the crossing 2700 feet east -from the center line of the crossing where the collision occurred. At this latter point- .of intersection: the main line curves, in a southerly direction and for that reason the last line projected would intersect it at a point 2700 feet east from the center liné, of the crossing. The purpose of exhibits .C and; D, was to show the condition of -the crossing where the accident occurred, the elevators and other buildings on the south side of the service track and the freight cars -located on each side of the crossing as well as the three tracks of the defendant’s railroad. An examination of exhibit D, discloses that the plaintiff Ekren after crossing the service track had a-clear view to the -east of some 2700 feet and some 900 feet- west of the crossing. The engineer on the train that collided with plaintiff’s' car testified, that he applied the brakes in the near vicinity of the east siding one ‘ half 'mile "east of the point of the accident. That' he applied the brakes to their- full capacity óf 90 pounds. He continued-braking until the-'train came to a stop about 900-feet west of the crossing and that he could not stop any sooner. Both the engineer and the fireman testified that the train was traveling at the rate of from 30-to 35 miles pér hour when it was traveling into Kensal at the time of the accident.

The plaintiff testified that his driving position in th'e car was 8 feet back of the front end of- the hood. -The front end of the car would.therefore be 8 feet beyond the point where the driver’s view would be clear east and west. But since the distance between the'north.rail of the service track and the south rail of the main track was 43 , feet 3½ inches there would still be a travel distance .of 35 feet and 3½ inches before reaéhing- the point of impact. His testimony was that he traveled from 6 to 8-miles per hdur. Assuming that he traveled 7 miles per hour he' would be traveling 10¼ feet per--second; at that-speed he would cover the distance of 35 feet 3½ inches from the service track to the crossing on the main track in 3½ seconds. The train was traveling from 30 to 35 miles per hour. If it traveled 35 miles per hour it would travel 51⅛ feet per second, and must therefore have been 180 'feet from the point of impact and in plain sight when the plaintiff was on' the service tráck 35 feet 3½ inches from the same point.' iHad the plaintiff looked to the east at anytime during the first 3 seconds he was traveling from the service track toward the main track he certainly would have seen the approaching train., ■ ■

According to the plaintiff’s own testimony he was quite familiar with the crossing having used it for the last 35 years and sometimes many times a day. His testimony relative to his familiarity with the crossing is as follows:

“The Court: After you drove, your car on the crossing .betweeji these box cars, could you see east and to the west?
“The Witness: No, I could not because the cars were in so close. If the crossing had been opened like it should have been, like it is most óf the time,’ then I could have seen everything at a glance.
“The Court: Well, -your car passed across the first track, didn’t it?
“The Witness: Yes.
“The • Court: Then after you passed the first track, could you see east and ■ west? '
“The Witness: I could see — Well, n.ot so good. I had to get out there so far; and, of course, in going across the crossing, I went across — I. started- to go across with the idea ofgoing over the-crossing. .
“The Court: You intended' to go clear across.
“The Witness: Go clear across, yes.'
'“The Court: You didn’t stop in between there. . ’
“The Witness: In order to stop in ■ between the tracks, that would have.-' been premeditated, you’d’have to plan that; then it would'be pretty hard to’ stop unless you .planned it, you see? ■ Well, those box cars hung, over the tracks quite a bit; -and I- remember to my right was a big car, ‘what you call an, -automobile car,. and -extra-big! car ' right- to tay right. ’Several times;’if there was- any doubt when crossing that crossings — I have crossed it’ for thirty-five ■ years- — -Well,-' we take the children to school because, it’-s a hazardous crossing. - We haven’t allowed the boys to go over the crossing at- all; My wife would say,. ‘Well; dad, you can’- - drive the boys to school today,’"She’d ’ tell me; and sometimes she’d take them in.” - : '

It will, be observed from, hi?. test-imoqy. that he knew that this crossing was a haz7 ardous crossing and that he did npt allow his boys to go over the. crossing at .all. So far as the record shows his mental faculties were .normal nor does it appear that his, sense of sight or of hearing was defective. As a prudent and careful man of ordinary, intelligence, even though he looked to the left or west first, after passing the service track he still could have looked to the right or east before he .attempted to cross, the main track and would have then seen the approaching train and could have avoided the; collision.-. Traveling at, a rate of 10 or 11 feet per .second,.in two.seconds he would have traveled some 22 feet .and during that time the train traveling at 52 feet per second 'would have- traveled 104 feet arid at that moment would be less- than '80 feet away from him.

Under , the situation confronting the plaintiff when he was approaching the .railroad crossing it was his. dpty, to-, exercise the utmost care and tp take, necessary, precaution for the safety qf bimsqlf, and his passengers; . He stopped 25 to 30 feet,.from the, service,,track at a: point whqre his. view was obstructed because of the location qf the elevators and the box cars on the service track and thus was unable to see either east or west- of the crossing. As the test!- - mony shows and to which we have referred, he had no intention to stop after crossing the service tra!ck but intended to cross all the-tracks without. further stopping. The pla.ce of danger was not on the service track because that crossing at that point was open; the place of danger was beyond the' service track. It is- difficult to understand how he could look west -after, crossing the service track hut did not have time to look east when as a matter of fact he traveled some 35 • feet after passing the service track. The question thus presented is whether the driver of an automobile may disregard ordinary care and prudence and deliberately run into danger, sustain injuries, and then hold the other party liable, even though such other party may have been negligent. In the instant case the plaintiff was thoroughly familiar with the crossing and surrounding circumstances and after he had crossed the service track there was nothing t'o obstruct his view either east or west of the crossing. As the evidence shows the visibility was- góod and there was no frost on the windshield or on the glass doors of the car he was driving. The plaintiff in this cáse did not stop, look and listen. He did testify that he looked to one side but that he did not look to the other where he could have seen the approaching train. There is no dispute as to his testimony in this regard.

The testimony of the plaintiff that he did not have time to look to the east or to his right is difficult to believe in view of the demonstrated facts:-

“Testimony which is contrary to demonstrated or physical facts will not support a verdict. 2 Hyatt, Trials Sec. 1773, 1774. In the case of Shaver v. Davis, 175 Wis. 592, 185 N.W. 227, 230, the Supreme Court of Wis. said: ‘It would probably seldom happen that a travelor would be excused from not knowing Of the approach to a railroad track in broad daylight and such ignorance would' generally defeat a recovery.’ ”

- See also Marshall v. Northern Pac. R. Co., 58 N.D. 626, 227 N.W. 55, 56. We quote from a paragraph of the syllabhs in that case:

“The evidence showing the existence of no obstacle within more than 35 feet of a railroad track, which would prevent one approaching a crossing from seeing an approaching train, the failure to take the necessary precautions to discover the presence of an approaching train, in the circumstances shown.in the record, amounts to contributory negligence.”

In the case of Schnell v. Northern Pac. R. Co., 71 N.D. 369, 1 N.W.2d 56, 62, this court said:

“The plaintiff’s case simmers down to this: He was driving along a highway with which he was well acquainted ; he was ■ approaching a railway crossing that he well knew; he had driven over it many times; he knew it wás. his duty to look and listen, so he looked and listenéd; he says he heard no bell or whistle and that he was so blinded by the lights of the automobiles coming from the opposite direction he could see only along the north lane of the highway on which he was driving and could not see to the south whence he knew the railroad he was crossing came. * * * He cannot say that he looked and did not see when, if he had looked, he should have seen.”

See also Zeis v. Great Northern R. Co., 61 N.D. 18, 236 N.W. 916. In the case of Brommer v. Pennsylvania R. Co., 179 F. 577, 580, 103 C.C.A. 135, 29 L.R.A.,N.S., 924, the United States Circuit Court of Appeals, Third Circuit said:

“The duty of an automobile driver approaching tracks, where there is restricted vision, to stop, look, and listen, and to do so at a time 'and place where stopping and where looking and where-listening will be effective, is a, positive duty.”

To the same effect is the decision in the case of New York Cent. & H. R. R. Co. v. Maidment, 3 Cir., 168 F. 21, 25, 93 C.C.A. 413, in which the court said:

“The dúty of an automobile driver approaching tracks where there is restricted vision to stop, look, and listen, and to do so at a time and place where stopping and where looking and where listening will he effective, is a positive duty, and these safeguarding steps the plaintiff failed to take. He stopped where stopping served no purpose, and failed to ' stop where stopping would have disclosed danger. He made chance, and not sight, the guarantee of his safety.”

In the case of Miller v. Chicago R. I. & P. Ry. Co., S.D., 40 N.W.2d 324, 326, plaintiff-.sued the .railway company , for damages resulting from a collision between his trailer-transport and one of defendant’s locomotives. Defendant contended that the collision was the result of plaintiff’s contributory negligence. Plaintiff obtained judgment in the lower court and defendant appealed. The supreme court reversed the judgment and held that plaintiff was guilty of contributory negligence as a matter of law. The facts in the case were similar to the facts in the instant case. The plaintiff, before crossing defendant’s tracks, had stopped at a point where he could not observe whether it would be safe to cross the tracks. In its opinion the court said:

“The fact that Miller stopped before reaching the tracks lying north of the freight depot is of no consequence. From the point of this stopping he could not have ascertained that it was or would be safe for him to cross the tracks where the collision occurred when he reached those tracks.”

The court further quoted with approval the following from Vol. 3, Blashfield’s Cyclopedia of Automobile Law, Permanent Edition Sec. 1826.

“Ordinarily where there is a duty, either specifically or under the particular facts as essential to due care, to stop for the purpose of looking and listening, the driver must, in order to fulfill such obligation, stop at a place where looking and listening will be reasonably .effective. He is not deemed negligent in failing to stop at the time or place prior to that which, the view . becomes effective. Indeed, it is no discharge of the duty and: does not absolve -. him from negligence, that he stopped'., at such prior time aijd place.’? : ■ . > - -, ■;

And.in the case of Northern Pacific Railway Co. v. Tripp, 8 Cir., 220 F. 286, 290, a North Dakota case, the plaintiff obtained .a judgment ip the Federal District Court anj.-the defendant appealed. In that case the defendant had made,a motion for judgment, notwithstanding the verdict which .motion was denied. In reversing the Judgment the. circuit court said: .t >

“In the presfent' case the evidence is ■ undisputed that the plaintiff was advised that his vision was limited at the time he looked to the east. He knew that it would grow more so until he approached the crossing over the house track, where it would be entirely cut off by the box cars to the east. After he passed this obstruction he looked constantly to the west, where obstructions prevented effective vision, and he was aware that he had not looked again to the east, and so continued until he reached the final danger point. The obstruction to the west, instead of being an excuse, was a warning not only that he was' in danger from that direction, but also from the opposite direction, because of his lack of attention there. Under such circumstances, his duty was plain. He should have taken time in which to glance in the opposite direction, where the slightest glance would have shown his danger, or he should have exercised his control over his vehicle, so that he could listen for approaching trains, or have stopped it, ■ if necessary, until he could use his senses of sight and hearing, and failure to do so was negligence on his part.”

The factual situation may be briefly summarized as follows: There is no evidence in the case that the plaintiff was not a man of ordinary intelligence or that his 'sense of sight or of hearing was defective. He was familiar with, the crossing where the collision. occurred, having used it for 30 to 35 years, and he admitted that it was a hazardous crossing.. 'Notwithstanding these facts, on the.morning of the accident he stopped before crossing the house track at, a point where stopping was of no' consequence since at'that point his view both east and west was obstructed; yet according to his own testirnony he proceeded to cross all three tracks without any intention to stop, and without looking to the east where he could have seen the approaching' train. He was travéling at a speed of from 10 to 11 feet per second. During the time he was traveling from the service track to the main track he- certainly had time to look both east and west. He looked to the west but not. to the east. The visibility was .goqd, and,there was no frost on the windshield or on the windows of his car. He could have looked ' to the east and would then have seen the approaching train which was less than 200 feet away.' We cannot escape the conclusion that upon the record and the evidence the plaintiff was guilty of contributory negligence as a matter of law which contributed proximately to the collision.

The judgment of the district court is reversed and the action dismissed.

MORRIS, C. J., and CHRISTIANSON, GRIMSON and BURKE, JJ., concur. ■


author: SATHRE, Judge.

text:
    STATE v. LARSON.
    Cr. 243.
    Supreme Court of North Dakota.
    Nov. 30, 1953.
    Glenn K. Swanson, State’s Atty. of Bot-tineau County, Bottineau, for plaintiff and respondent.
    O. B. Benson, Bottineau, for defendant and appellant.
   SATHRE, Judge.

The defendant Orlando Larson was charged with the crime of grand larceny by appropriating to his own use a stray cow, the property of one James Stone without giving the notice as required by law. He was .tried in, the district court of Bottineau County, North Dakota and the jury returned a verdict of guilty of grand larceny as charged in the information. The defendant made a motion for a new trial on the grounds that the verdict was contrary to the evidence. The motion was denied. The defendant appealed from the judgment. The only question presented on this appeal is whether the evidence was sufficient to sustain the verdict. The substance of the testimony adduced at the trial is as follows:

The defendant is the owner and operator of a 960 acre farm in Bottineau County adjoining the Canadian Boundary line. He is engaged in farming and raising of livestock. The complaining witness James Stone lives in Canada on an 80 acre tract of land 1% miles north of the boundary line and 3 to 4 miles west from the farm of the defendant. He does a little farming and raises a few cattle and horses. In the winter time he is engaged in trapping. At the time of the alleged larceny by the defendant the complaining witness had 5 head of cattle and among them was a small black cow weighing from 1,000 to 1,050 lbs. This cow had what he called “nice small horns”. On the 6th day of December this cow strayed from his farm. He made telephone inquiries in the surrounding neighborhood but was unable to locate her. About a month after the cow had strayed away the complaining witness and one of his neighbors, Louis Racine, went to the farm of the defendant. The defendant’s cattle were in the barn yard feeding and the complaining witness and his neighbor Racine went directly to the place where the cattle were feeding and there discovered the black cow which the complaining witness identified as the cow that had strayed away from his farm. He noticed however that the cow had recently been dehorned. After having seen this cow among the defendant’s herd, they went to the barn where they met the defendant and inquired if he had seen any stray cattle or a stray black cow to which he replied that he had not. They then left the defendant and the complaining witness went to the city of Bottineau and consulted with the sheriff of Bottineau County. Shortly thereafter the then sheriff, Mr. Crawford, went with the complaining witness and his son to the defendant’s farm. They were accompanied also by two other parties Roy Goodon and William Goodon. They had a conversation with the defendant and the sheriff told him that they.wanted to see his cattle. They went to his herd and looked all around for this black cow but did not find her. They then asked the defendant where the little black cow was, but he made no answer. The complaining witness then went back to Bottineau and signed a complaint and shortly thereafter a warrant was issued charging the defendant with grand larceny of the cow. A few days later • the sheriff discovered that the defendant had sold some cows to one Ernie Rowland. The sheriff accompanied by the complaining witness and his son, and Louis Racine then went to the farm of Ernie Rowland. The little black cow which the complaining witness claimed was his was found in Ernie Rowland’s herd. The sheriff directed the complaining witness, his son, and his neighbor Racine to identify the cow separately, if they could. Each one of them picked out the cow in Rowland’s herd of some 50 to 75 cattle. The identification was made by each one separately and without the presence of either of the other two. The witness Racine owned 80 acres of land adjoining the 80 acres owned by the complaining witness and in the same quarter section. This tract of land owned by the two was enclosed by a wire fence. Racine testified that he had been a neighbor of the complaining witness for many years, that he knew the cattle owned by the complaining witness and that he was satisfied that the little black cow located in Ernie Rowland’s herd was the cow belonging to the complaining witness. The complaining witness identified the cow by her general appearance, her size, her color, by a white star on her face and particularly by a scar on her right front teat which had been caused by a barb-wire cut. The son of the complaining witness a boy of 14 years said that he had milked the cow since he was 8 years old and that he had absolutely no difficulty in identifying the cow as the cow belonging to his father. The witness Ernie Rowland testified that he had purchased, two cows from the defendant, and one of them was the little black cow that had been identified by the complaining witness, his son and Mr, Racine. In the transaction he traded one of his own cows to the defendant, and in addition paid him $120. He testified further that the cow in question was worth at least $168. He stated also that the cow appeared to have been dehorned recently, which was apparent by the fact that the stubs of the horns had not been grown over. The complaining witness testified that he had raised the cow on his own farm and that she was 7 years old. The defendant however testified that the cow was his, that he had raised her on his farm and that she was only 3½ years old. He had not noticed any scar on her teat. The cow belonging to the complaining witness had small horns when she strayed away, and the cow found in the possession of the defendant had been recently dehorned.

“The question of the credibility of the witnesses and the credence to be given to their testimony was a matter for the jury, and its finding, based upon conflicting evidence, is binding upon this court.” State v. Cray, 31 N.D. 67, 153 N.W. 425, 426.

In the case of State v. Ugland, 48 N.D. 841, 187 N.W. 237, 238, it was held:

“The finding of the jury is binding on this court when based upon substantial, competent evidence that, in- any reasonable view thereof which the jury-has a right to take, justifies the verdict.”

See also State v. Burcham, 44 N.D. 604, 176 N.W. 657.

Likewise in the case of State v. Wheeler, 38 N.D. 456, 165 N.W. 574, 577, this court said:

“The jury being the exclusive judges, of fact, and having seen all the witnesses on the stand, and having had an opportunity to observe their app.eay-. anee, willingness or 'unwillingness with which they testified, 'and having'' returned a verdict of guilty, the same is conclusive upon us; there appearing to be no prejudicial reversible error.” " ;

While the evidence in -the instant case was ' Conflicting, ‘ it nevertheless was sufficient to warrant the" jury in finding the defendant guilty of grand larceny as charged.

The judgment of the district court is af-r firmed.

MORRIS, C. J., and CHRISTIANSON. GRIMSON and BURKE, JJ., concur.


author: BURKE, Judge.

text:
    STATE v. OSTER.
    No. 7345.
    Supreme Court of North Dakota.
    Nov. 18, 1953.

      E. T. Christianson, Atty. Gen., C. E. Brace, Asst. Atty.- Gen., Bismarck, for appellant.
    Floyd B.'Sperry, Golden Valley (Hyland & Foster, Bismarck, on brief), for respondent. ...
   BURKE, Judge.

This appeal is from an order sustaining a demurrer to plaintiff’s complaint. In its complaint the .plaintiff alleged, that in 1916 it sold certain original grant lands, located in Mercer -County, according, to the terms of a contract for deed issued to . C. J. Fuerst; that by an approved assignment, this contract became the property of the defendant, Oster, who, upon ■ full compliance, with all the conditions of the contract, received from the plaintiff á patent conveying fee title to the said land on or about July 2, 1928; that the contract for deed provided, “That if the described land shall be found to be ‘coal land’ and that the same has been sold in violation of Section 155 of .the .Constitution of the. State of North Dakota, then, and in that case, the said land shall immediately revert to the State, and this contract shall at once become null and void”: that the patent to said land issued to the defendant “reserved and excepted from the operation of this grant all rights and privileges vested in the State of North Dakota under the provisions of the constitution and the laws of said statethat some time in the year 1950 the plaintiff discovered that the conveyed lands were “coal lands” and that the sale thereof was in violation of Section 155 of the Constitution of the State of North Dakota. Upon these allegations plaintiff demanded judgment cancelling the patent issued to the defendant.

The question is whether the complaint states a cause of action and this, in turn, depends upon whether the state may, .after its qualified officers have found that land was legally subject to sale and have issued a patent therefor, challenge the sale upon the ground that the nature of the land was such that its sale was prohibited by the Constitution.

The sale of “coal lands” is prohibited both by the Constitution and by statute. Constitution of N. D. Sec. 155; Sec. 15-0506, NDRC 1943. The power to sell original grant lands is vested in the Board of University and School Lands by Sec. 156 of the Constitution in these words: “Said board shall have control of the ap- ■ praisement, sale, rental and disposal of all school and university lands”. In furtherance of this grant of power the legislature has provided: “The board shall have * * * full control of the selection, ap-praisement, rental, sale, disposal, and management of * * * lands donated or granted by or received from the United States * * *.” Sec. 15-0102, NDRC 1943, Sec. 153, R.C.1905.

The statutes also provide in detail for the selection of lands for sale, the manner of the sale thereof, the approval of sales, the conditions upon.which sales are void, and the issuance of patents conveying sold lands to the purchasers thereof.

Sec. • 15-0507, NDRC 1943, enacted as c. 176, Laws of N. D. 1903, provides:

“The board of university and school lands, with the assistance of the state geologist, shall ascertain and determine the quantity and description of all lands under its control on which coal exists and shall compile and keep a statement and schedule of all such lands.”

Before any original grant lands may be sold they must be selected and certified by the Board of University and School Lands. Sec. 15-0606, NDRC 1943, Sec. 168, R.C.1905. Such lands must be sold at auction to the highest bidder upon a long time contract for deed. Sec. 15-0610, NDRC 1943, Sec. 171, R.C.1905. No prepayments upon such contracts for deed may be made until after five years from the date of the sale. Sec. 15-0617, NDRC 1943, Sec. 189, R.C.1905. Any sale made by mistake or hot in.accordance with law, or obtained by fraud, may be set aside and the contract of purchase, declared to be of no effect. Sec. 15-0806, NDRC 1943, Sec. 176, R.C.1905. All sales are required to be approved by the Board of University and School Lands and no sale shall be approved “unless, from an examination of the certified lists and other information received and investigation made, it shall appear to the board that the sale was made in accordance with the provisions of this title and without fraud or collusion.” Sec. 15-0805, NDRC 1943, Sec. 174, R.C.1905. After full compliance with all of the terms of his contract, the purchaser shall be issued a patent, “signed by the governor and attested by the secretary of state with the great seal of the state, and shall be countersigned by the commissioner of university and school lands with the seal of the board.” Sec. 15-0816, NDRC 1943, Sec. 189, R.C.1905.

A consideration of the foregoing constitutional and statutory provisions, makes it clear that, while the sales of state lands are surrounded with multiple safeguards to insure against illegal sales, inadequate price and fraud and collusion and to procure an avoidance of contracts of sale for such reasons prior to the issuance of a patent; it was nevertheless the constitutional and legislative intent that after a good faith determination by the board that the sales were not subject to such infirmities, and the issuance of patents to the lands sold, that all questions of legality should be concluded and the sales should be final and irrevocable.

Prior to the issuance of patents the board is required three times to pass upon the question of whether lands are legally subject to sale, first, when it selects the lands to be offered for sale; second, when it approves the contracts of sale; and third, when it directs the issuance of patents. The board is given adequate opportunity and means to determine whether lands offered for sale and sold are “coal lands”. The state geologist is directed by statute to cooperate with the board in preparing a list of such lands. The board has a five year period between the time of the sale and the time when the purchaser may elect to make prepayments on his contract, in which to make investigations as to individual sales before giving its final approval thereto. The statute, relating to the avoidance of sales, provides that under certain conditions the contract of sale shall be declared void. There is no statutory provision for avoiding a patent issued after an approval and confirmation of the contract of sale.

The effect of an approval or disapprov-' al of a sale of state lands by the Board of University and School Lands has been considered by this court in Fuller v. Board of University and School Lands, 21 N.D. 212, 129 N.W. 1029. In this case we said, referring to the board, 21 N.D. at page 218, 129 N.W. at page 1032:

“It has full control of the disposal of public, lands under the statute and Section 174 of the Revised Codes of 1905 (Sec. 15-0805, NDRC supra) does not in anywise abridge or limit such control or discretion on so important a matter as the very act of final determination as to whether to ratify the sale and thereby pass the matter from its control. In other words, it would be an unreasonable construction of the stat-tute to say that the board has fuil authority. as to the disposal of public lands except as to the most important step in the proceedings, that of determining compliance or non-compliance with the law, adequacy or inadequacy •.of price, fraud or collusion or the absence thereof in the sale, ⅝11 of them matters regarding which it was the very spirit and object of the Constitution- and the law -that it should be passed upon by a board whose judgment should be as sound as it should be conclusive.”

The question before us has arisen in other jurisdictions, where statutes prohibiting the sale of “mineral lands” exist. In almost identical form it has been before the courts of the United States and the highest courts . of several of the states. In Burke v. Southern Pac. R. Co., 234 U.S. 669, 687, 34 S.Ct. 907, 914, 58 L.Ed. 1527, 1547, a case concerning the alienation of mineral lands of the United States, the Supreme Court said:

“But it is said that the Secretary of the Interior has no authority to patent mineral lands, and that a patent for lands in fact mineral would afford no protection to the railroad company in the event of the future discovery of precious metals therein. This is a mistake. After the Secretary of the Interior has decided that any particular lands are not mineral, and has issued a patent therefor, the title is not liable to be defeated by the subsequent discovery of minerals.”

In Cowell v. Lammers, C.C., 21 F. 200, 206, 10 Sawy. 246, it was said:

’ “There must be some point in time when the character of the land must be finally determined, and, for the interest of all concerned, there can be no better point to determine this question than at the time of issuing the patent.”

See also Greene v. Robison, 109 Tex. 367, 210 S.W. 498; Shaw v. Kellogg, 170 U.S. 312, 18 S.Ct. 632, 42 L.Ed. 1050.

In opposition to the principles above set forth, the state urges the reservation contained in the patent itself and the provisions of Sec. 32-1201' NDRC 1943. We shall consider each in turn.

The reservation relied upon- reserves “from the operation of this grant all rights and privileges vested in the State of North Dakota under the provisions of the Constitution and the laws of said, state. Similar reservations have been considered in- some of the cases above cited. In Cowell v. Lammers, C.C., 21 F. 200, 208, 10 Sawy. 246, it was said:

“A patent upon its face should either grant or not grant. It must be seen from a construction of the language of the grant (patent) itself whether anything is granted or not, and, if .anything be granted, what, it is. There is no authority to issue a patent which, in effect, only says if the lands herein described hereafter turn ■out to be agricultural lands, then I grant them, but if they turn out to be mineral lands, then I do not grant them. Such a patent would be so uncertain that it would be impossible to determine, from the face-of the patent, whether anything is granted or not.’*

And in Burke v. Southern Pac. R. Co., 234 U.S. 669, 34 S.Ct. 907, 921, 58 L.Ed. 1527, 1553, it was said:

“What is the 'significance of, and what effect can be given to, the clause inserted in the certificate of approval of the plat that it was subject to the conditions and provisions of the act of Congress? We are of opinion that the insertion of any such stipulation and limitation was beyond the power of the Land Department. Its duty was to decide, and not to decline to decide; to execute, and not to refuse to execute,. the will of Congress.”

The language, last above quoted, applies with special force to the instant case for the statutes of this state clearly and unequivocally máke it the duty of the Board of University arid School Lands to make an investigation and determine by the official act of the board' whether lands sold are legally subject to sale before the issuance of a patent thereto.

The statute relied on by the state, Sec. 32-1201, NDRC 1943 provides:

■ “The state may bring an action to vacate or annul letters patent for lands granted by this, state, in any of the following cases:
' «2. * * *
“2. When ■ they are issued in ignorance of a material fact or through mistake.
«3 * * * >>

We are of the opinion that the above statute has no application to a case where a sale of land has -been strictly in accord with statute, with respect to selection for sale, sale, approval of the contract for sale and the issuance of a. patent. It is the existence of these facts which are material to. the validity of the sale. The statute does not grant a right to question the good faith decision of the board that the lands sold were legally subject to sale. To so hold would be to reverse the prior holding of this court that the board’s decision approving or disapproving a sale is conclusive. Fuller v. Board of University and School Lands, supra.. Such á decision would also be contrary to the well established rule of statutory coristruction existing in other jurisdictions in the United States.

The decision of the district court sustaining the demurrer to plaintiff’s complaint is accordingly affirmed.

MORRIS, C. J., and SATHRE, CHRIS-TIANSON and GRIMSON, JJ., concur.