State ex rel. Childs v. Wadhams
| Decision Date | 06 May 1896 |
| Docket Number | 10,141--(319) |
| Citation | 67 N.W. 64,64 Minn. 318 |
| Parties | STATE OF MINNESOTA ex rel. HENRY W. CHILDS, Attorney General, and Another, v. SAMUEL F. WADHAMS |
| Court | Minnesota Supreme Court |
Quo warranto on the relation of Henry W. Childs, attorney general, and Thomas B. Hawkes against Samuel F. Wadhams. Judgment of ouster.
Henry W. Childs, Attorney General, and C. d'Autremont, Jr., for relators.
Ellsworth Benham, for respondent.
This is a proceeding in quo warranto to oust and exclude the respondent, Samuel F. Wadhams, from the office of city assessor of the city of Duluth, and to have the relator Thomas B. Hawkes adjudged entitled to said office, and admitted to the same, with all the rights, privileges, and emoluments thereof.
The charter of the city of Duluth provides [2] that
On March 12, 1894, the mayor of Duluth appointed the respondent Wadhams, as city assessor for the term of two years beginning on the first Monday in April, 1894, and until his successor was elected and qualified, and on March 19, 1894, his appointment was confirmed by the common council of said city, and he has since held, occupied, and enjoyed said office. On March 9, 1896, the mayor of the city of Duluth appointed in writing Thomas B. Hawkes, the relator, city assessor of the city of Duluth in the place of Wadhams, and sent this written appointment to the common council of the city of Duluth at a regular meeting which it held on the last-named day, and this appointment was by said council referred to one of its committees, known as the "committee on public offices, officers, and elections," composed of three persons. At a regular meeting of the council held March 23, 1896, this committee made two reports, as follows: Two members presented a majority report, accompanied by a resolution recommending that the appointment of the relator Hawkes be not confirmed; and the other member presented a minority report, accompanied by a resolution recommending that the appointment of the relator Hawkes be confirmed. Upon motion the minority report was substituted in place of the majority report by a vote of 10 yeas to 5 nays, and it was so announced by the clerk of the council, and declared carried by the president thereof. Thereupon a motion was made that the minority report, carrying with it the resolution of confirmation of the relator Hawkes be adopted, and it carried by a vote of 9 yeas to 6 nays, and, upon the announcement thereof being made by the clerk, the president of the council declared the resolution carried, and on the succeeding day this resolution was presented to the mayor of the city, who signed and approved it March 24, 1896, and it, with other proceedings of the city council, was duly published in the official newspaper of the city of Duluth, March 27, 1896. At a meeting of the said common council held on March 30, 1896, Alderman Hanson, who claimed to have voted, under a mistake, with the majority, moved to reconsider the vote taken at the meeting held March 23, 1896, confirming the appointment of the relator Hawkes, which motion was carried by a vote of 9 yeas to 7 nays, and, the question then being upon the adoption of the minority report to confirm the appointment of the relator, the motion was declared lost by a vote of 7 yeas to 9 nays. No other person has been appointed city assessor.
On April 4, 1896, the relator Hawkes duly filed a proper official bond with the auditor of St. Louis county, with approved sureties, and took and subscribed on said bond, before said auditor, the oath of office required by law. On the first Monday in April, viz. April 6, 1896, the term of office of the respondent, Wadhams, as city assessor, having expired, Hawkes demanded of him the possession of said office, which was refused, and Wadhams, on April 4, 1896, also filed a bond and oath of office with the county auditor, and also filed another oath of office in the office of the city clerk of the city of Duluth. In this connection, assuming that Hawkes was legally appointed city assessor, -- a matter which will be discussed further on in this opinion, -- we will discuss the question of whether Hawkes filed his oath of office in the proper office.
We have already quoted a provision of the charter of the city of Duluth which expressly provides that assessors and their deputies shall qualify, and discharge the duties prescribed by general law. G. S. 1894, § 1538, provides that every person elected or appointed to the office of assessor shall, at or before the time of receiving the assessment books, file with the county auditor his bond, payable to the state of Minnesota, with at least one good freehold surety to be approved by the auditor, in the penal sum of $ 500, conditioned that he will diligently, faithfully, and impartially perform the duties enjoined upon him by law; and he shall, moreover, take and subscribe on said bond an oath that he will, according to the best of his judgment, skill, and ability, diligently, faithfully, and impartially perform all the duties enjoined upon him by this act; and, if any person so elected or appointed fails to give a bond, or fails to take the oath required within the time prescribed, such failure shall be deemed a refusal to serve. Section 1537 provides that the assessment books and blanks shall be in readiness for delivery to the assessor on the last Saturday in April in each year, and the assessors shall meet on that day at the office of the county auditor for the purpose of receiving such books and blanks. If the general law is applicable to the manner in which the city assessor of the city of Duluth is required to qualify, then Hawkes had until the last Saturday in April to do this, -- a day long subsequent to the time when he actually filed his bond and took the required oath of office, viz. April 4, 1896. Several authorities hold that the statute fixing the time in which an official bond shall be given and an official oath taken is not applicable to one kept out of office by another and where it is uncertain whether he can ever obtain the office; and that the statute in this respect is directory. Throop, Pub. Off. 183.
The respondent contends that section 10, c. 2, of the charter of the city of Duluth [3] is applicable to the manner in which the city assessor shall qualify. It is provided in that section that every person elected or appointed to any office...
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