State ex rel. Childs v. Holman

• Decision Date: 14 July 1894
• Docket Number: 8963
• Citation: 59 N.W. 1006,58 Minn. 219
• Parties: State of Minnesota ex rel. H. W. Childs, Atty. Gen., v. Oscar E. Holman et al
• Court: Minnesota Supreme Court

59 N.W. 1006

58 Minn. 219

State of Minnesota ex rel. H. W. Childs, Atty. Gen., v. Oscar E. Holman et al

No. 8963

Supreme Court of Minnesota

July 14, 1894

Argued June 27, 1894

H. W Childs, Attorney General, by leave of this court, presented an information stating that at a municipal election held in the City of St. Paul on May 1, 1894, under Sp. Laws 1891, ch 6, for the election of nine assemblymen at large to the common council of the city, thirty six persons were candidates. That of these Wm. Banholzer received 11,199 votes, Oscar E. Holman 11,112, Timothy Reardon 11,291, and O H. Arosin 11,294, that seven others had more votes than any one of these four. That the votes were duly canvassed, and the seven, together with Banholzer and Holman, were declared elected. That Banholzer and Holman took the oath of office and wrongfully and unlawfully without color of right or title thereto intruded into and usurped the offices of assemblymen of said city, and he prayed that a writ issue to them to appear and show quo warranto they and each of them hold and exercise said offices. Banholzer and Holman answered that by Sp. Laws 1891, ch. 6, four of the said nine assemblymen shall reside in that part of the city east of Wabasha and Rice streets and north of the Mississippi river, and four west of said streets and north of the river, and one in that part south of the river known as the sixth ward. That at said election J. J. Parker, Oscar E. Holman and Wm. Banholzer democrats, and W. R. Johnson, republican, resided in the west division north of the river, and each received more votes than any other person residing in that division and were thereby duly elected. That they qualified and entered upon the discharge of the duties of assemblymen and are still of right holding the two offices. To this answer the Attorney General demurred.

Demurrer sustained.

H. W. Childs, Attorney General, and W. H. Lightner, for the relator.

By either method of determining the election seven were chosen and the only dispute is as to the remaining two members. If the nine receiving the highest number of votes were elected, then Reardon and Arosin were elected, and Holman and Banholzer have no title to the offices, and the demurrer of the state should be sustained. Four of those conceded to be elected were democrats and acting with the respondents claim to be a majority of the assembly and to be legally acting as the assembly. The remaining three were republicans, and, acting with Reardon and Arosin, claim to be a majority of the assembly and to be legally acting as the assembly. As a consequence there are two bodies each claiming to be the legally constituted assembly. The financial officers of the city are unwilling to assume the responsibility of determining which body is the legally constituted assembly, and as a result the administration of city affairs is delayed. The speedy determination of the question raised is therefore of great public importance.

The nine highest are the duly elected assemblymen under the terms of the charter. Its language is, "The members of the assembly shall be elected at large from (and not by) the body of the electors of said city." Standing by themselves these words are capable of but one meaning, viz: Any nine electors of the whole body of electors of the city are eligible to the offices of assemblymen. "Elected at large" certainly means elected on a vote of all the electors of the city. "From the body of the electors of said city" means any of the electors regardless of particular place of residence in the city. The legislature has used the strongest terms to express the idea that any electors of the whole body shall be eligible, and has used the same words three times in the law. There is nothing in the law to support respondents' contention except the clause beginning, "and four of same shall reside east of Wabasha Street, &c." But these words do not say that to be eligible for election a candidate at time of election must reside in a particular locality, or that four assemblymen must be selected from among the residents of a certain section of the city. It is not an uncommon thing to provide by law that an officer when elected shall thereafter while administering his office reside or have his office at a particular place. 1878 G. S. ch. 6, §§ 7, 13, 32, 45; ch. 8, §§ 129, 148, 174, 220, 230, 258.

It seems to us that the words, "and four of same shall reside," are at the most merely directory in requiring that while in office the assemblymen shall reside in certain districts.

The charter provision as to residence is unconstitutional and void. All electors of the city may vote for all nine, but no elector can fill any of the offices except those belonging to his district. An elector in the sixth ward votes for nine officers, and is only eligible for one, and the election of the assemblymen from the sixth ward is determined, not by the voters of the sixth ward, but the whole body of voters of the city. This we submit is contrary to the plain provision of the Constitution, Art. 7, § 7. Cooley Const. Lim. (4th Ed.) 78, and cases cited; State v. Clough, 23 Minn. 17; Taylor v. Sullivan, 45 Minn. 309; Barker v. People, 3 Cow. 686; Page v. Hardin, 8 B. Mon. 648.

The authorities to the effect that the legislature has no power to add to or to take from the constitutional provisions are numerous. In addition to those cited supra, see State ex rel. v. Tuttle, 53 Wis. 45; State ex rel. v. Baker, 38 Wis. 71; State ex rel. v. Williams, 5 Wis. 308; People v. Schiellein, 95 N.Y. 124; Kinneen v. Wells, 144 Mass. 497; Black v. Trower, 79 Va. 123; Quinn v. State, 35 Ind. 485; Morris v. Powell, 125 Ind. 281; St. Joseph & D. C. R. Co. v. Buchanan Co. Court, 39 Mo. 485; Rison v. Farr, 24 Ark. 161; People v. Canaday, 73 N.C. 198.

It may be claimed that the constitutional provision does not relate to the municipal offices in question. Such position is clearly untenable. That the position of assemblyman is a public office will probably not be disputed. Mechem, Pub. Off. § 43; Sanborn v. Neal, 4 Minn. 126; People ex rel. v. Hurlbut, 24 Mich. 44.

That it is an office covered by the Constitution, Art. 7, § 7, seems equally clear. It relates to any election to any office which now is or hereafter shall be elective by the people except as otherwise provided in this Constitution or the Constitution and laws of the United States. Any claim that there is an implication to confine this article to any particular class of offices is by the explicit language of our Constitution excluded. The question has been determined in this court by the decisions in Brisbin v. Cleary, 26 Minn. 107; Harrington v. Town of Plainview, 27 Minn. 224; State v. Fitzgerald, 37 Minn. 26; State v. Clough, 23 Minn. 17.

This is in accord with decisions in other jurisdictions. State ex rel. v. Williams, 5 Wis. 308; State ex rel. v. Tuttle, 53 Wis. 45; People v. Canaday, 73 N.C. 198; St. Joseph & D. C. R. Co. v. Buchanan Co. Court, 39 Mo. 485.

It is well settled that even if a candidate who receives the highest number of votes be ineligible, yet a minority candidate is not entitled to the office. Barnum v. Gilman, 27 Minn. 466. It therefore follows that even if Reardon and Arosin be declared ineligible, Holman and Banholzer were minority candidates and not elected.

It is quite clear that if the provision relating to residence is unconstitutional, yet the remainder of the law is constitutional. People ex rel. v. Kenney, 96 N.Y. 294; State ex rel. v. Tuttle, 53 Wis. 45; Reimer v. Newel, 47 Minn. 237.

Frank W. M. Cutcheon, John H. Ives, and J. C. Michael, for respondents.

To hold these provisions of the law as to residence to be merely directory will defeat their purpose, for if they be directory it will often occur that there will be elected to the assembly from some one division of the city more persons than by these provisions of the charter are permitted to reside in that division. And in such case, if the directions of the law were to be obeyed, it would be necessary that of the persons so elected a sufficient number should change their residences to reduce the number of assemblymen residing in that district to the number prescribed by law, and to increase the number residing in the remaining districts to the number so prescribed. It would be necessary to decide which persons should remove, also in which districts the persons to remove should thenceforth reside. It would be necessary to enforce these decisions when once reached. To accomplish any of these things would be clearly impossible. These provisions have none of the characteristics of directory statutes. They were enacted for the benefit of the public in the public interest, and a statute so enacted will never be considered directory. Bowen v. City of Minneapolis, 47 Minn. 115.

The respondents claim that Const., Art. 7, § 7, does not apply to municipal offices, and for that reason, that portion of Sp. Laws 1891, ch. 6, § 1, which requires assemblymen to reside in certain defined portions of the city does not offend against it. They are a class of offices denominated "statutory." The legislature, in the absence of express constitutional restriction, possesses absolute freedom to create or abolish such offices at pleasure, and to attach to them such restrictions as it chooses. It may prescribe the qualifications of the incumbents, and may make the offices elective or appointive in such manner as it sees fit. Cooley, Const. Lim. (3rd Ed.) p. 168, and cases there cited; People ex rel. v. Clute, 50 N.Y. 451; Jeffries v. Rowe, 63 Ind. 592; Buckner v. Gordon, 81 Ky. 665; Jordan v. Bailey, 37 Minn. 174; Robinson v. White, 26 Ark. 139; Waldraven v. Memphis, 4 Coldw. 431.

The Constitution nowhere, from...