State ex rel. Holman v. Murray

• Decision Date: 26 June 1889
• Citation: State ex rel. Holman v. Murray, 41 Minn. 123, 42 N.W. 858 (Minn. 1889)
• Parties: State of Minnesota, ex rel. Oscar E. Holman, v. William P. Murray
• Court: Minnesota Supreme Court

42 N.W. 858

41 Minn. 123

State of Minnesota, ex rel. Oscar E. Holman, v. William P. Murray

Supreme Court of Minnesota

June 26, 1889

Quo warranto.

Moses E. Clapp, Attorney General, for the State.

J. B. & W. H. Sanborn, for relator.

Henry J. Horn and C. D. & T. D. O'Brien, for respondent.

OPINION

Collins, J.

This is a proceeding in the nature of quo warranto instituted by the attorney general of the state under the authority conferred upon him in Gen. St. 1878, c. 79, § 3, against the respondent, whom he charges with having usurped and intruded into, with unlawfully holding and exercising, the office of corporation attorney for the city of St. Paul. The facts are briefly these: On the first Tuesday of the month of March, 1885, pursuant to the terms of the statute, (Sp. Laws 1885, c. 7, § 21,) the respondent, Murray, was duly elected to the office of corporation attorney for said city for the period of two years. He thereupon duly qualified, has ever since and is now exercising and performing the duties of said office. On the first Tuesday of March, 1887, he was again elected to said office, and thereafter took the oath required by law, and filed a bond. At this time there was no opposition to Mr. Murray, nor was another election held that year. On the first Tuesday of March, 1889, at a regular meeting of the common council of said city, all of the aldermen (17 in number) being present, and there being two candidates for the office in question, the respondent received, viva voce, the votes of nine members of the council, while his opponent received the votes of but eight. The presiding officer declared at once that there was no election, that the action was premature, and that a corporation attorney could not be legally chosen until the second Tuesday of the month, and refused to declare the respondent elected. After some parliamentary skirmishing a motion was made and carried, two members of the council voting "No," that the respondent be declared duly elected corporation attorney for the term of two years. The council thereafter adjourned to the second Tuesday of March and upon that day again proceeded to vote for an attorney. The relator, Oscar E. Holman, who had not previously been a candidate, received nine votes, the respondent four, while four of the aldermen refused to vote. The relator was then declared elected. At this meeting the respondent presented a bond, having previously taken an oath of office, which the council, having first refused to accept or approve, referred to the committee on ways and means. The relator then filed an oath of office upon the third Tuesday of March, presented his bond, and the same was formally accepted and approved by the council. He has since been excluded from exercising any of the duties of the office.

The question between the parties is as to which of these elections must be declared valid, and this brings us to a statement of the legislation upon the matter. Chapter 7 of the Special Laws of 1885, before mentioned, is entitled "An act to amend the charter of the city of St. Paul, and the acts amendatory thereof," and was approved March 2, 1885. By section 21 it is provided that "the corporation attorney shall be elected by the common council of the city on the first (1st) Tuesday of March, one thousand eight hundred and eighty-five, (1885,) and shall hold his office for the term of two (2) years thereafter." Attention must here be called to the fact that this law did not provide for an election subsequent to that held in 1885. In other words, it made no provision for the election of a successor to the person who might first be elected as corporation attorney, and whose term of office had been limited to the period of two years. This was evidently an oversight, and by an act of the legislature entitled precisely as was that of 1885, approved February 22, 1887, chapter 48, Sp. Laws 1887, § 21, supra, was amended (see section 6) by inserting, immediately after the figures in parenthesis, "1885," the words and figures, "and on the second (2d) Tuesday of March every two years thereafter." It will now be observed that by this amendment all elections subsequent to the first were fixed for the second instead of the first Tuesday of the month. By the third section of an act approved a few days later, on March 1st, (Sp. Laws 1887, c. 333,) the word "second," in section 6 of the amendment of February 22d, was stricken out, and the word "first" inserted in lien thereof; the manifest purpose of the change being to designate the first Tuesday of March as the day upon which an attorney should be elected instead of the second.

The election in 1887, under which the respondent qualified and served for two years, was held under the amendment of March 1st; and the proceedings of the council upon the first Tuesday of March, 1889, were also under the same statute, which is now admitted by all to be repugnant to a section of our state constitution, and therefore void. The act of the legislature in which the amendment is found (chapter 333, supra) is entitled "An act to provide additional compensation to the auditor and assessor of Ramsey county, for clerk-hire during the years one thousand eight hundred and eighty-seven (1887) and one thousand eight hundred and eighty-eight, (1888,) in transcribing the books of their respective offices, rendered necessary by reason of the extension of the city limits, and for other purposes," and is in direct violation of that inhibition found in the state constitution (article 4, § 27) which directs that "no law shall embrace more than one subject, which shall be expressed in its title." It provided for and embraced four subjects -- First, in the first and second sections, additional compensation for the auditor and assessor of the county, the only subject mentioned in its title; second, in the third section, the amendment now being considered; third, in the fourth section, the salary of the city jailer; and, fourth , in the fifth section, the salary of the market-master of the city. Beneath and covered by a title which relates solely to extra compensation for two of the officers of Ramsey county, is found, in addition to that which might be expected, first, a change in the time for the election of an officer of the city of St. Paul; and, secondly, the salaries fixed for two other officers of the same municipality. It would be difficult to invent a law more obnoxious to the constitutional restriction above quoted; for one of the subjects -- that indicated by the title -- is absolutely foreign to each of the other subjects, and as independent of them as if it had appeared in a separate act. See State v. Kinsella, 14 Minn. 395, (524.) Being obliged, therefore, to put aside the amendment of March 1, 1887, the respondent is met with the fact that he was not elected upon the day designated by the act approved February 22, 1887, but one week earlier, upon the first, instead of upon the second, Tuesday of the month of March, and consequently prior to the day upon which came the duty to elect. He is also confronted by the further fact that upon the day fixed by the statute for the performance of the duty in question the city council formally elected another person, the relator in this proceeding, to the office.

In State v. Smith, 22 Minn. 218, this court passed upon a section of a city charter, by which the council was required to elect an assessor at the first meeting held after the annual city election, fixed by law for the first Tuesday in April. The city election was held upon April 7th and the first meeting of the council was upon the 14th. At this meeting no action was taken upon the question of electing an assessor to succeed the relator, whose term of office expired the next day. At the next regular meeting, on the 21st, an unsuccessful effort was made to elect, and an adjournment had to the 25th. No quorum being present on the 25th, further adjournment was had to the 29th, when the...