State ex rel. Dowdall v. Dahl
| Decision Date | 23 June 1897 |
| Docket Number | 10,663--(241) |
| Citation | 71 N.W. 910,69 Minn. 108 |
| Parties | STATE OF MINNESOTA ex rel. AUGUSTUS S. DOWDALL v. JOHN F. DAHL |
| Court | Minnesota Supreme Court |
Petition by Augustus S. Dowdall, a freeholder and resident of Hennepin county, for leave to file an information for a writ in the nature of quo warranto against John F. Dahl. Order to show cause discharged.
Order to show cause discharged.
C. J Cahaley, for relator.
Keith Evans, Thompson & Fairchild, for respondent.
Even if a court stenographer is an officer, it does not necessarily follow that he is an officer within the meaning of Const art. 4, § 9.
In Wisconsin the salary of a county judge may be lawfully reduced during his term of office, notwithstanding art. 4, § 26, of the Wisconsin constitution. State v. Kalb, 50 Wis. 178. In Nebraska the salary of a county commissioner may be increased during his term of office, notwithstanding c. 3, § 16 of the Nebraska constitution. Douglas v. Timme, 32 Neb. 272. In California the same person may exercise at the same time judicial and executive functions, notwithstanding art. 3 of the California constitution. People v. Provines, 34 Cal. 520. In Indiana the same person may hold two salaried offices, notwithstanding art. 2, § 9, of the Indiana constitution. State v. Kirk, 44 Ind. 401. In Indiana a justice of the peace is eligible to the office of city clerk, during the term for which he was elected, notwithstanding art. 7, § 16, of the constitution of that state. Mohan v. Jackson, 52 Ind. 599.
The president of the city council is not an officer within the meaning of Const. art. 13, § 2. State v. Kiichli, 53 Minn. 147.
If a court stenographer be an officer he is an officer of the court, much the same as an attorney, yet attorneys are not officers of the state, though they are officers of the court. Cohen v. Wright, 22 Cal. 293; Ex parte Yale, 24 Cal. 242. Existence or absence of emoluments, or of the requirement of an official oath, or the permanent or transient character of duties is not a certain test to determine whether a person is a public officer. Throop, Pub. Off. §§ 6, 8. See Chittenden v. Wurster, 152 N.Y. 345, upon the construction of art. 5, § 9, of the New York constitution concerning appointment in the civil service of the state, where upon the argument both sides admitted that this provision imposed no restriction upon the appointment of a private secretary.
Unless the statute of Anne is a part of the common law of this state, the relator has no standing in court. Prior to the enactment of that statute, in the year 1711, the writ of quo warranto and the information by which it was superseded were solely a prerogative remedy, never issued or prosecuted at the suit of a private person or for the enforcement of a personal right. Unless a case fall within the terms of this statute the controversy was in fact, as well as in name, between the crown and the individual claiming the office or franchise, and no private person could participate in any way. 19 Am. & Eng. Enc. Law, 675; Rice v. National, 126 Mass. 300; 7 Lawson, Rights, R. & P. § 4042; Goddard v. Smithett, 3 Gray, 116; Frey v. Michie, 68 Mich. 323; Thompson, Corp. § 6774; Beach, Priv. Corp. § 43; 18 Am. & Eng. Enc. Law, 661; 2 Spelling, Ex. Rel. §§ 1773, 1843, 1842, 1885; Angell & A., Corp. §§ 733, 735, 736; State v. Baker, 38 Wis. 71; State v. Mayor, 49 N. J. L. 515; People v. Albany, 57 N.Y. 161.
The operation of the statute of Anne was by its terms limited to England and Wales. It was never operative in any of the American colonies, and never became part of the common law of this country. Com. v. Burrell, 7 Pa. 34; Com. v. Arrison, 15 S. & R. 129; Com. v. Lexington, 6 B. Mon. (Ky.) 397; State v. Stewart, 6 Houst. (Del.) 359. Information in the nature of quo warranto authorized by this statute was only against the public officers mentioned in its preamble, municipal officers only. Even if this statute were enforced in this state, it could not be applied to a person acting as court stenographer. See State v. Stewart, supra; Barnum v. Gilman, 27 Minn. 466; Taylor v. Sullivan, 45 Minn. 309; State v. Tracy, 48 Minn. 500; High, Ex. Leg. Rem. §§ 697, 700; Mecham, Pub. Off. § 490; State v. Taylor, 50 Oh. St. 120; State v. Davis, 57 N. J. L. 203; Andrews v. State, 69 Miss. 740; Mills v. State, 2 Wash. 566; Lamoreaux v. Ellis, 89 Mich. 142; State v. Hamilton, 29 Neb. 198; State v. Stein, 13 Neb. 529; People v. Grand, 13 Colo. 11; Vrooman v. Michie, 69 Mich. 42; Com. v. Cluley, 56 Pa. 270; 19 Am. & Eng. Enc. Law, 677; 5 Wait, Act. & Def. 265; 5 Wait, Pr. 620; Miller v. Town, 12 Kan. 14; Com. v. Farmers, 2 Grant Cas. 392; State v. Smith, 32 Ind. 213; People v. Ryder, 12 N.Y. 433; Doolittle v. Supervisors, 18 N.Y. 155; Roosevelt v. Draper, 23 N.Y. 318; Demarest v. Wickham, 63 N.Y. 320; Attorney General v. May, 99 Mich. 538; 7 Lawson, Rights, R. & P. § 4042; State v. Vail, 53 Mo. 97; Com. v. McCarter, 98 Pa. 607; State v. Town, 109 Ind. 73; Robinson v. Jones, 14 Fla. 256; State v. Bieler, 87 Ind. 320; State v. Long, 91 Ind. 351; Reynolds v. State, 61 Ind. 392; Harrison v. Greaves, 59 Miss. 453; Com. v. Burrell, supra.
OPINION
The short facts are that Dahl was elected a member of the legislature of this state at the general election held in November, 1896. He qualified, and acted during the session of that body. By virtue of the special act of legislature referred to in the brief of the applicant, to wit, Sp. Laws 1891, c. 370, Dahl was appointed, after the adjournment of the session of the legislature, on May 1, 1897, by Hon. Seagrave Smith, one of the judges of the district court of Hennepin county, as his official court stenographer, took the oath to discharge his duties, and has ever since been acting in such capacity. Dowdall, the petitioner, is a resident, freeholder, and taxpayer of the county of Hennepin. He does not claim to have any right to, or to be qualified to hold, the position which Dahl now holds, if he is required to vacate it. May 3, 1897, Dowdall filed with the attorney general of the state of Minnesota a petition requesting that officer to procure from the supreme court of this state an information in the nature of quo warranto for the purpose of testing the right by which said Dahl held and exercised the position of official stenographic court reporter. A copy of this petition is attached to the moving papers herein, and also a copy of the opinion and decision of the attorney general, in which he refused the request so made. Upon such refusal said Dowdall comes to this court, and asks in his petition that he may become a relator in an information to be filed whereby proceedings in the nature of quo warranto may be taken to test Dahl's right to hold the appointment and serve as court stenographer during the two-years term for which he was elected to the legislature.
Counsel for Dahl contend that the position of court stenographer is not an "office," within the meaning of article 4, § 9, of the state constitution, wherein it is provided that "no senator or representative shall, during the time for which he was elected, hold any office under the authority of the United States, or the state of Minnesota, except that of postmaster," a provision which has recently been construed. State v. Sutton, 63 Minn. 147, 65 N.W. 262. As our decision is put upon other grounds, we need not pass upon this contention, although we shall have occasion later on to refer to the act under which the appointment was made, and also to the duties devolving upon an appointee under that act.
The power conferred upon this court to permit the filing of informations in the nature of quo warranto is found in G. S. 1894, § 4823, and the proceeding here is not the action provided for in chapter 79, § 5963. In the absence of legislation or any controlling consideration to the contrary, this proceeding is governed, as respects procedure, by the common-law rule. State v. Sharp, 27 Minn. 38, 6 N.W. 408. It was also held in that case, where an attempt was made to have the court overrule the determination of the attorney general to proceed, that it was for him, as the representative of the people, to determine whether the public good required the commencement of such a proceeding. If, said the court, the attorney general deems it best to proceed, it would be a very extraordinary case, if any, in which his determination would be overruled. This language may be somewhat broad, and the converse of the statement may not be true, but it clearly shows the views of the court as to the weight which should be given to the determination of the attorney general when application is made to him for the use of his name in this form of procedure. In the case of Barnum v. Gilman, 27 Minn. 466, 8 N.W. 375, -- it being an application for leave, upon the refusal of the attorney general to file an information for a quo warranto to inquire into and to determine the defendant's right to hold an elective office, -- it was held that a quo warranto would not be issued without the consent of the attorney general upon the information of a private party, having no personal interest in the question distinct from the public, to test the right of an incumbent to hold a public office. In Taylor v. Sullivan, 45 Minn. 309, 47 N.W. 802, the correctness of this decision seems to have been conceded. And in State v. Tracy, 48 Minn. 497, 51 N.W. 613, -- an information against a pretended municipal corporation for the usurpation of corporate franchises, and to oust it from the exercise of corporate privileges, -- the rule stated in the Gilman case was recognized and applied.
So it would seem that if the rule referred to is applicable in all cases in...
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