Leighton v. Abell

• Citation: 31 N.W.2d 646,225 Minn. 565
• Decision Date: 15 March 1948
• Docket Number: No. 34691.,No. 34692.,34691.,34692.
• Parties: LEIGHTON v. ABELL et al. (two cases).
• Court: Supreme Court of Minnesota (US)

31 N.W.2d 646

225 Minn. 565

LEIGHTON v. ABELL et al. (two cases).

No. 34691.

No. 34692.

Supreme Court of Minnesota.

March 15, 1948.

Rehearing Denied April 15, 1948.

Appeal from District Court, Hennepin County; Albert H. Enersen, Judge.

Action by Arthur Leighton against Mrs. Cleon M. Abell and others, as members of the Minneapolis Charter Commission, Stanley Anderson and others, as members of City Council of Minneapolis, and others, for judgment declaring M.S.A. §§ 410.23 to 410.25, unconstitutional in so far as those sections purport to authorize the submission and acceptance of a "new charter" or "revised" home rule charter in any other manner than as prescribed by M.S.A.Const. art. 4, § 36, which authorizes the adoption of home rule charters by cities and villages, and for a determination of whether a certain proposal by the Minneapolis Charter Commission constituted an amendment to its present home rule charter to be submitted and accepted as such. From judgment entered, the plaintiff, the City of Minneapolis, members of the City Council and City Clerk appeal.

Reversed.

Child & Child, of Minneapolis, for plaintiff-appellant.

Charles B. Howard, Thomas Tallakson, Elmer R. Anderson, James D. Bain, and Josiah E. Brill, all of Minneapolis, for respondents Mrs. Cleon N. Abell and others.

John F. Bonner, City Atty., and Carsten L. Jacobson and Robert W. Barnett, Asst. City Attys., all of Minneapolis, for appellants Stanley Anderson and others.

LORING, Chief Justice.

There are before us two appeals from the same judgment. The case below was tried before the court on a complaint seeking judgment declaring M.S.A. §§ 410.23, 410.24, 410.25 unconstitutional insofar as those sections purport to authorize the submission and acceptance of a "new charter" or "revised" home rule charter in any other manner than as prescribed by Minn.Const. art. 4, § 36, M.S.A., which authorizes the adoption of home rule charters by cities and villages. It also sought a determination of whether a certain proposal by the Minneapolis Charter Commission constituted an amendment to its present home rule charter to be submitted and accepted as such.

The amended judgment below was entered on February 9, 1948, determining that the proposal was not an amendment, but a new charter and on the authority of §§ 410.23, 410.24, and 410.25 might be submitted to the electorate in the manner that the original home rule charter was, by § 36, required to be submitted. Appeal was taken by plaintiff February 9, and by the city, the members of the city council, and the city clerk February 10. The mayor took no appeal. By agreement of counsel, briefs were filed, and the appeals were argued before this court February 24.

The background of legislation and constitutional history, prior to the adoption of Minn.Const. art. 4, § 36, shows that much legislation prior to Minn. Const. art. 4, § 33, was special with reference to various municipalities and that much time of the limited legislative session was consumed thereby. Section 33,¹ forbidding special legislation, was proposed and adopted in 1881, and amended in 1892, to include the regulation or incorporation of cities. There followed considerable difficulty in framing general legislation to meet specific needs of municipalities. The legislature then proposed, and in 1896 the people adopted, § 36,² which was amended in 1898³ and again in 1942⁴ L.1899, c. 351, amended by L.1901, c. 323, provided for the board of 15 freeholders, authorized by § 36, to be appointed by the district judges for terms of six years, and prescribed the general limits within which the charter to be drafted by them should be framed. L.1909, c. 236, enacted provisions which purported to authorize cities having home rule charters to adopt a "new charter" or "revisions" of their home rule charters in the same manner and mode as the law required for the proposal and acceptance of the original home rule charter. The provisions of c. 236 now appear as M.S.A. §§ 410.23, 410.24, 410.25.⁵

Minneapolis brought itself within the purview of § 36 in 1920 by having a charter commission appointed under authority of that section and legislation in furtherance thereof and by adopting the home rule charter proposed by the commission. The present litigation arises out of the fact that the charter commission has proposed what it calls a "new charter," which is regarded by plaintiff as an amendment of the present charter. The trial court decided, and counsel for the commission contend, that the proposal is in fact a new charter and not an amendment and that it may be submitted and accepted under M.S.A. §§ 410.23, 410.24, 410.25, which plaintiff challenges as unconstitutional.

The question presented for decision is whether §§ 410.23, 410.24, and 410.25 violate Minn.Const. art. 4, § 36, insofar as they purport to authorize the charter commission to submit a proposal as a new charter in the same way as the original home rule charter was submitted and accepted, instead of as amendments are required by § 36 to be submitted and accepted.

1. By § 36, the people of the state carved out of the power of the legislature and vested in the electorate of the municipalities to which it applied the power to makes charters for self-government, within certain limitations. In Almquist v. City of Biwabik, 224 Minn. 503, 507, 28 N.W.2d 744, 746, this court said: "* * * Home rule charters are but a constitutional diversion of legislative power from the constitutional legislature to the citizens of the charter-making area, * * *. The whole plan of home rule charters as set up by the adoption of § 36 is an exception carved out of the powers which, under the constitutional division of powers, was conferred exclusively upon the legislature as an independent branch of the government."

Section 36 set up a symmetrical plan, complete in itself, clearly defining the powers of the commission and those left to the legislature. By making the board of freeholders permanent and investing it with power to propose a charter and amendments thereto, it adequately provided for not only the original charter, but for any modifications which the people might desire. The obvious purpose was to take from the legislature and vest in the electorate of the city a government with a measure of stability which could be changed only by well-publicized and well-considered amendments. This is evident from the requirement of a greater percentage of votes to accept amendments than for adoption of an original charter and by the publicity required for proposed amendments. It definitely prescribed just what powers and duties the board should have, and it definitely described and delimited the powers that were left in the legislature. Section 36 was not self-executing in one sense, because it was not available to municipalities until the legislature prescribed the general limits within which the charter "shall be framed." It left four things to be done by the legislature: (1) to provide for a board of 15 freeholders, to be appointed by the district judges, and to fix their terms at not to exceed six years (this was a command; the length of term of office of the members of the board was the only thing left to the wisdom of the legislature); (2) to prescribe the general limits within which a charter should be framed (this also was a command, but left the limits of power to the wisdom of the legislature); (3) to prescribe the duties of the commission (the board of freeholders) relative to submitting amendments of the charter; (4) in making general laws relating to municipal affairs, to classify the cities of the state according to population. There is no contention by anyone that this last power was exercised in §§ 410.23, 410.24, and 410.25. These provisions circumscribe the powers relating to home rule charters which were left in the legislature by the people when they adopted § 36. If §§ 410.23, 410.24, and 410.25 are valid, authority for their enactment must be found within these limitations of power. The legislature must abide within those limits and may not otherwise deal with the subject matter of § 36 than as so authorized. We look in vain for any such authority. It cannot be spelled out of any one of the clauses in § 36. The first two relate solely to matters prior to the adoption of the original home rule charter. The third relates to the duties of the board to propose amendments, not to the power or manner of submission; nor can the legislature enlarge the powers of the commission in contradiction to or elaboration of the specific powers invested in it and delimited by the constitution. It may not violate the symmetry of the complete and comprehensive plan set up by § 36.

On the question here presented, it is significant that § 36 constitutes the board of freeholders a permanent board, and therefore, in contemplation of law, there is continuity of duties, powers, and responsibilities in that board. Consequently, the present board of 15 commissioners is as much the same board as the one which formulated the first home rule charter in 1920, just as this court is the same court as that established originally by the Minnesota constitution. The powers vested by § 36 in the board are to draft a charter for submission to the voters of the city and to return that draft to the chief magistrate of the city within six months from the appointment of the board. Section 36 specifically states that the proportion of qualified voters necessary to accept the original proposed charter shall be four-sevenths of those voting at the election. It makes no requirement as to publication as it did in regard to amendments. Once accepted, the charter becomes the city charter, and it supersedes "any existing charter and amendments thereof." Counsel for the commission ingeniously endeavor to support the validity of §§ 410.23, 410.24, and 410.25 by asserting that, because § 36 uses the phrase quoted it implies that the...