State ex rel. Parker v. Smith

• Decision Date: 07 October 1875
• Citation: 22 Minn. 218
• Parties: State of Minnesota ex rel. Edward F. Parker v. Ansel Smith
• Court: Minnesota Supreme Court

22 Minn. 218

State of Minnesota ex rel. Edward F. Parker v. Ansel Smith

Supreme Court of Minnesota

October 7, 1875

Action in the nature of quo warranto, the relator being also joined as plaintiff, to try the title to the office of assessor of the city of Duluth. The relator was elected April 15, 1873 the defendant April 29, 1874; but, on behalf of the relator it was claimed that the latter election was invalid, and that the relator was entitled to continue in office until a valid election of a successor to him. Trial was had in the district court for St. Louis county, before McKelvey, J., upon whose findings judgment was entered for the defendant, from which the plaintiffs appeal.

Judgment of the court below in his favor must be affirmed.

George P. Wilson, Attorney General, for appellants.

Robert G. Terry, for respondent.

OPINION

Cornell, J.

By the charter of the city of Duluth (Sp. Laws 1870, p. 1,) the common council of said city is composed of the aldermen elected from the several wards of said city, one-half of whom are elected annually, with a term of office of two years and until their successors are elected and qualified. Ch. 2, § 2; ch. 4, § 1. The annual election for elective officers is fixed by the charter for the first Tuesday of April in each and every year. Ch. 2, § 1. In case any officer neglects or refuses, for ten days after notice of his election or appointment, to enter upon the discharge of the duties of his office, he shall be deemed to have vacated his office. Ch. 2, § 7. Whenever a vacancy occurs in any office it shall be filled by the common council, and the person so appointed shall hold his office, and discharge the duties thereof, for the unexpired term. Ch. 2, § 4.

Section 23, ch. 3, of the charter declares that "the common council shall, at their first meeting after the annual election, or an adjournment thereof, elect a city assessor, who shall hold his office for two years and until his successor is elected and qualified;" that he "shall perform all the duties required of assessors of property for the purposes of taxation for state, county, city, or other purposes, within the city of Duluth;" that he "shall hold his office for two years from the time of his election and until his successor is elected and qualified, and shall file a bond with the county auditor of St. Louis county for the sum of five thousand dollars, and shall take an oath of office, in the manner and within the time prescribed for assessors under the general laws of the state. In case of his failure to qualify according to law, or in case of his death, resignation, removal, or other cause disqualifying him from performing the duties of his office, his office shall be declared vacant, and another assessor elected by the council to act in his place." Section 1, ch. 3, also provides that "every person elected or appointed to any office shall, before he enters upon the duties of his office, take and subscribe an oath of office, and file the same, duly certified by the officer taking the same, with the clerk of the city;" and also provides that the assessor, among other officers there named, shall execute to the city a bond, with sureties, in such penal sum and with such conditions as the common council may deem proper; and the council may, from time to time, require a new or additional bond, and remove from office such officer refusing or neglecting to give the same.

Section 1, ch. 4, enacts that "the common council shall meet at such time and place as they, by resolution, may direct. A majority of the aldermen shall constitute a quorum;" and § 2, ch. 4, declares that "the common council shall hold stated meetings, and the mayor may call special meetings by notice to each of the members, * * * and shall determine the rules of its own proceedings, and have power to compel the attendance of absent members." By a resolution of the council, of July 8, 1873, their regular and stated meetings were directed and fixed to be holden on the first and third Tuesdays of each and every month, and no subsequent resolution was ever adopted making any change in this regard.

The annual charter election for 1874 was held on the first Tuesday of April, which was the same day fixed for the holding of one of the regular meetings of said council, as prescribed by such resolution, but none was held. On the 14th, the second Tuesday of said month, a meeting was held at which the new aldermen elected took their seats,...