State ex rel. Peterson v. Quinlivan
| Decision Date | 11 September 1936 |
| Docket Number | 30,765 |
| Citation | 268 N.W. 858,198 Minn. 65 |
| Parties | STATE EX REL. HARRY H. PETERSON v. RAY QUINLIVAN |
| Court | Minnesota Supreme Court |
Original proceeding in this court by information in the nature of quo warranto upon the relation of Harry H Peterson as attorney general to determine the right of respondent to hold the office of regent of the University of Minnesota. Order to show cause discharged.
College and university -- University of Minnesota -- incorporation and organization.
1. If it be assumed that under the supposed law of its being (L. 1851, c. 3) the organization of the University of Minnesota was defective, or even invalid, and hence there was no corporation even de facto, it became a corporation de jure by the constitutional confirmation of the "existing laws" under which it was organized and functioning when the state constitution was adopted. Minn. Const. art. 8, § 4.
College and university -- University of Minnesota -- regents.
2. That provision perpetuated the "rights, immunities, franchises and endowments" held by the University under the territorial laws confirmed by the constitution. Included in the rights and franchises so perpetuated was administration by a board of 12 regents, who themselves were the "body corporate," to be elected by the two houses of the legislature in joint convention.
Corporation -- nature of corporate franchise.
College and university -- University of Minnesota -- regents -- appointment -- constitutionality of statute.
3. The general franchise to be a corporation is subject to the conditions and limitations as to its exercise imposed by the grant -- which are part of the franchise itself. That is especially so of the method fixed by the grant to implement and assure the intended corporate succession. Hence L. 1923, c. 429, § (1 Mason Minn. St. 1927, § 3110), attempting to make three state officers ex officio regents and to vest in the governor power to appoint the others, is unconstitutional.
College and university -- University of Minnesota -- regents -- constitutional and statutory provisions.
4. Assuming regents of the University to be "officers" within the constitutional provision (Minn. Const. art. 5, § 4) vesting the power of appointment in the governor, they have been removed from the scope of that general rule by the special constitutional provision confirming and perpetuating the original franchises, which included the election by the legislature of the regents, to hold the franchise and insure the intended succession.
Harry H. Peterson, Attorney General, and Frederic A. Pike, Assistant Attorney General, for relator.
Ray Quinlivan and G. A. Youngquist, for respondent.
Original proceeding on relation of the Honorable Harry H. Peterson, attorney general, by information in the nature of quo warranto, challenging the right of respondent, the Honorable Ray Quinlivan, to be a regent of the University of Minnesota. Mr. Quinlivan claims under an election by joint convention of both branches of the legislature, February 7, 1935. That choice was valid unless, as the attorney general contends, the legislature has no constitutional power to elect regents of the University because that function is constitutionally part of the executive function of the governor.
The University was incorporated in territorial days by L. 1851, c. 3. Sections 4, 5, 6, and 7 were as follows:
Section 9 declared that the "Regents shall have power, and it shall be their duty to enact laws for the government of the University; to elect a Chancellor, who shall be ex-officio, President of the Board of Regents," and to "appoint the requisite number of professors and tutors" for the faculty.
Under § 7 the regents constituted the "body corporate," which continued, in form at least, under the act of 1851, until Minnesota became a state in 1858. Then the state constitution (art. 8, § 4) confirmed the location of the University "as established by existing laws," adding this:
That constitutional provision controlled decision in State ex rel. University of Minnesota v. Chase, 175 Minn. 259, 220 N.W. 951, and Fanning v. University of Minnesota, 183 Minn. 222, 236 N.W. 217. Because the "rights, immunities, franchises and endowments" granted by the act of 1851 were "perpetuated unto" the University, we held unconstitutional L. 1925, c. 426, insofar as it attempted, in respect to the control of University finances, to subject the regents to supervision by the commission of administration and finance, created by the act of 1925.
As an immediate result, the then attorney general, the Honorable G. A. Youngquist, ruled that appointment of regents was controlled by the law of 1851. His view was that:
For long, pursuant to statutes passed under misconception of fundamental law, regents of the University had been appointed by the governor. The latest such statute is L. 1923, c. 429, § 1 (1 Mason Minn. St. 1927, § 3110). It would be controlling were it not unconstitutional, as it is, for the reasons stated in the Chase case and reconsidered herein. It provides in part as follows:
"The government and general educational management of the state university is hereby vested in a board of regents, consisting of the governor, the commissioner of education and the president of the university, all as ex-officio members, and one member from each congressional district of the state to be appointed by the governor by and with the advice and consent of the senate."
Mr. Youngquist's advice was that there would have to be a return to election of regents by the legislature, under the law of 1851. It was followed until the present attorney general, the Honorable Harry H. Peterson, took the view, expressed in a formal opinion to the governor July 8, 1935, that the matter was not controlled by the Chase case and that, upon grounds now to be considered, the governor and not the legislature had the constitutional power to appoint the regents.
Our decision is that the people of the state, speaking through their constitution, have explicitly and purposefully declared that the regents, 12 in number, shall be elected by "joint convention" of their own representatives in the legislature. We consider that inescapable under the constitutional provision perpetuating "the rights, immunities, franchises and endowments" granted by the act of 1851.
1. We have given attentive consideration to all the searching and voluminous argument of the attorney general, the content of which, both historical and legal, is commensurate in quantity and quality with the importance of the issue. Without so deciding, we assume validity for its first proposition, which is that, insofar as the act of 1851 attempted to vest in the legislature, rather than in the territorial governor, the power of appointing the regents, it was void because in contravention of "the organic law of Minnesota, which provides for a distribution of the power of the territorial government among the three departments thereof and vests the power of making appointments exclusively in the governor." See §§ 2, 4, 6, 7, and 9 of the "Organic Act" (1 Mason Minn. St. 1927, viii, ix).
We take also the attorney general's postulate that the regents are officers within the meaning of the declaration of the state constitution, art. 5, § 4, that the governor "shall have power, by and with the advice and consent of the senate, to appoint a state librarian and notaries public and such other officers as may be provided by law." We need not inquire whether the regents in...
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