State ex rel. Marr v. Stearns

Decision Date11 May 1898
Docket Number11,037 - (31)
Citation75 N.W. 210,72 Minn. 200
PartiesSTATE OF MINNESOTA ex rel. JAMES N. MARR v. FRED STEARNS
CourtMinnesota Supreme Court

Upon the petition of the relator, a resident and taxpayer of the county of Aitkin, the district court of that county granted him an alternative writ of mandamus requiring the county auditor of Aitkin county to place upon the tax list certain parcels of land described in the petition, to extend against such parcels their just proportion of taxes, and to cause the taxes to be collected, or to show cause why he had not done this. The matter having been duly submitted, the court Holland, J., filed its findings and order that the relator was entitled to the relief prayed for, and thereupon judgment was entered making the alternative writ peremptory and directing the respondent as county auditor to place the lands described upon the tax list for 1897. From this judgment the respondent auditor appealed. Affirmed.

SYLLABUS

Senate -- President pro tempore Becoming Lieutenant Governor -- Vacancy in Office of Senator.

The president pro tempore of the state senate does not cease to be a senator when he becomes lieutenant governor by reason of a vacancy in the office of governor, and a corresponding vacancy in the office of lieutenant governor.

Laws 1895, c. 168 -- Taxation of Railroad Lands -- Submission to Electors -- Constitution.

Held that Laws 1895, c. 168, relating to the taxation of railroad lands, was duly enacted, and properly submitted at the general election of 1896 to the electors for adoption and ratification, as required by the constitution.

Public Law -- Ratification by Majority Vote of Electors -- Judicial Notice of Number of Ballots Cast.

The existence of a public law, whether it be in the form of a statute or a constitutional amendment, is a fact of which courts must take judicial notice. If, as in this case, its validity depends on the fact whether it was ratified by a majority vote of all the electors voting at the election at which it was submitted, the court will take judicial notice of the number of ballots cast at the election, and the number cast for the law, and inform itself as to such facts by resorting to the election returns and records in the office of the secretary of state, or in the offices of the several county auditors, or by any other means it deems safe and proper.

Laws 1895, c. 168 -- Ratification by Majority Vote of Electors.

Held that the law here in question was adopted and ratified by a majority of all the electors voting at the election at which it was submitted.

Laws 1895, c. 168 -- Railway -- Gross-Earnings Tax Validated by Const. art. 4, § 32a -- Impairing Obligation of Contract.

The statutes of this state (enacted subsequently to the adoption of the constitution) providing for a commuted system of taxation of the property of railroad companies, by permitting them to pay an annual grossearnings tax, in lieu of the taxation of their property on the basis of a cash valuation, were unconstitutional until validated by the constitutional amendment of 1871 (article 4, § Such validation was a qualified one, the right to repeal or amend the statutes being reserved; hence Laws 1895, c. 168, does not impair the obligation of any contract, and is constitutional.

Hadley & Armstrong, for appellant.

Laws 1895, c. 168, was never passed by the state senate by the necessary vote of a majority of the members elected to that body. Const. art. 4, § 13. The courts may have recourse to the journals of the houses of the legislature to ascertain whether or not a law has been duly passed as provided in the constitution. Supervisors of Ramsey Co. v. Heenan, 2 Minn. 281 (330); State v. City of Hastings, 24 Minn. 78; State v. Gould, 31 Minn. 189; State v. Peterson, 38 Minn. 143; Lincoln v. Haugan, 45 Minn. 451. Mr. Day was lieutenant governor and was not lieutenant governor and was not a senator. Const. art. 5, § 6. The two offices are incompatible, and on his becoming lieutenant governor, the office of senator from the sixth district became vacant and remained vacant until his successor was elected and qualified. Const. art. 4, § 9. When a person holding one office accepts a new office incompatible with the one already held, the acceptance of the second office vacates the office previously held. King v. Tizzard, 9 B. & C. 418; Stubbs v. Lee, 64 Me. 195; State v. Goff, 15 R.I. 505; Kerr v. Jones, 19 Ind. 351; People v. Nostrand, 46 N.Y. 375, 381; People v. Hanifan, 96 Ill. 420; State v. Hutt, 2 Ark. 282; Scott v. Strobach, 49 Ala. 477. The constitution prohibits the lieutenant governor from voting as senator. Const. art. 3, § 1; art. 4, § 1; art. 5, § 1. The stability of our peculiar form of government depends largely upon the separation of the three functions of the government, the executive, the legislative and the judicial. Story, Const. § 520; Bryce, Am. Com. 212; Minnesota Const. Debates, 185-202; De Chastellux v. Fairchild, 15 Pa. St. 18; People v. Draper, 15 N.Y. 532; Cooley, Const. Lim. 44, 78; Const. art. 13, §§ 3, 4. If the lieutenant governor may vote as a de-facto senator, there is nothing in our constitution that prevents the governor from doing the same thing under like circumstances. State v. Francis, 26 Kan. 724.

Laws 1895, c. 168, was not legally submitted to the people for ratification and adoption at the general election of 1896. Const. art. 4, § 32a. This constitutional provision must be complied with in a reasonable manner. The question as to the adoption or rejection of the act in question must be submitted to the voters of the state in such a manner that a person of ordinary intelligence will understand what he is doing when he votes upon the question. Laws 1893, c. 4, § 28 (G.S. 1894, § 33). Even assuming that the law had been properly enacted by the senate and properly submitted to the people at the election, it was not adopted or ratified by the popular vote. The printing of the law with Laws 1897 is no evidence of the adoption and ratification of the law. The statutes having provided how the result of the election shall be ascertained and certified, the court will take judicial notice of the result of the canvass of votes made in accordance with the law. G.S. 1894, §§ 1, 169, 170, 171, 178, 179; Laws 1895, c. 168, § 4. The certificate of the state canvassing board does not give the total number of ballots cast nor the total number of electors voting at the election. It does not purport to determine the result of the vote upon the law in question, but merely makes the statement that "For taxation of railroad lands 'Yes' received 235,585 votes; 'No' received 29,530 votes." The language used in the constitution, "a majority of the electors of the state voting at the election," means a majority of all the electors who vote at the election upon any matter, and not a majority of those who vote upon this particular question. Taylor v. Taylor, 10 Minn. 81 (107); Dayton v. City of St. Paul, 22 Minn. 400; Smith v. Board of Co. Commrs., 64 Minn. 16. The total number of ballots cast, which would be the same as the total number of electors voting at the election, is not contained and cannot be made out from the certificate of the state canvassing board.

Laws 1895, c. 168, does not apply to the granted lands of the St. Paul & Duluth Railroad Company, for the reason that there was prior to its enactment a binding contract between the railroad company and the state, that the railroad company should pay a certain percentage of its gross earnings to the state, and that such payment should be in lieu of all other taxation on those lands as long as they were owned by the company. Hence an application of chapter 168 to those lands would be a breach of that contract in violation of the constitution of the state and also of the constitution of the United States. Sp. Laws 1865, cc. 2, 8. When there are no constitutional limitations upon the legislature of a state, it may make contracts with corporations or individuals, either that certain property shall be exempt from all taxation, or that a certain fixed sum shall be paid in lieu of all other taxation, and such contracts are irrepealable. First Div. St. P. & P.R. Co. v. Parcher, 14 Minn. 224 (297); State v. Winona & St. P.R. Co., 21 Minn. 472; City of St. Paul v. St. Paul & S.C.R. Co., 23 Minn. 469; St. Paul & C. Ry. Co. v. McDonald, 34 Minn. 195; County of Stevens v. St. Paul, M. & M. Ry. Co., 36 Minn. 467; Cooley, Const. Lim. 127; State v. Wilson, 7 Cranch, 164; Gordon v. Appeal Tax Court, 3 How. 133; State Bank v. Knoop, 16 How. 369; Jefferson B. Bank v. Skelly, 1 Black, 436; University v. People, 99 U.S. 309; Asylum v. New Orleans, 105 U.S. 362; Pearsall v. Great Northern Ry. Co., 161 U.S. 646, 662. All the provisions of Sp. Laws 1865, c. 8, are intended to be binding upon the state and not to be changed without the consent of the railroad company. State v. Luther, 56 Minn. 156. The act shows consideration from the company to the state. If Sp. Laws 1865, cc. 2, 8, were invalid for violation of Const. art. 9, §§ 1, 3, they were validated by the constitutional amendment of 1871. State v. Luther, supra.

C. W. Bunn, for appellant. (With respect to lands owned by Northern Pacific Railroad Company.)

Sp Laws 1865, c. 8, and Sp. Laws 1870, c. 65, constitute a contract between the Northern Pacific and the state, and Laws 1895, c. 168, if held to have been properly passed, is void because it impairs the obligation of that contract. These laws did not violate Const. art. 9, §§ 1, 3. The system of providing for taxation of railroad lands through payment of a percentage of the gross earnings of the road in lieu of all other taxes was universally in vogue in territorial times before the adoption of the...

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