State ex rel. Wenzel v. May, 29852.

• Decision Date: 15 December 1933
• Docket Number: No. 29852.,29852.
• Citation: 190 Minn. 336,251 N.W. 529
• Parties: STATE ex rel. WENZEL et al. v. MAY et al.
• Court: Minnesota Supreme Court

190 Minn. 336

251 N.W. 529

STATE ex rel. WENZEL et al.

v.MAY et al.

No. 29852.

Supreme Court of Minnesota.

Dec. 15, 1933.

Quo warranto proceeding by the State, on the relation of Herman C. Wenzel and another, against Clyde R. May and another.

Writ quashed.

Syllabus by the Court.

The election of two trustees, to serve on the board of trustees of the sanitary district, by the city council of the city of St. Paul, is governed by chapter 341, Laws 1933, under which the district is created, and the mayor of the city has no veto power over such election.

Harry H. Peterson, Atty. Gen., and Matthias N. Orfield and Roger S. Rutchick, Asst. Attys. Gen., for relators.

Lewis L. Anderson, Lewis P. Sheahan, and George G. Chapin, all of St. Paul, for respondents.

HOLT, Justice.

Quo warranto brought in this court by the Attorney General, on relation of plaintiffs, challenging the right and title of each respondent to the office of trustee on the board of trustees of the sanitary district, established under chapter 341, Laws 1933. Upon the pleadings and certain testimony taken and reported by a referee, the case has been argued and submitted.

The testimony taken relates to whether the order confirming the creation of the sanitary district was filed in the office of the clerk of the district court of Hennepin county on August 22, the same day that it was filed with the clerk of the district court of Ramsey county, or on the next day. But since we shall assume, for the purposes of this case, that in so far as the law fixes the time within which trustees must be elected by the city council of the city of St. Paul, such time begins to run from the day the order was filed in the office of the clerk of the district court in Ramsey county, there is no need to consider the testimony mentioned. The decision is therefore based upon facts appearing from the pleadings.

It is agreed that under the provisions of chapter 341, Laws 1933, a sanitary district, embracing the contiguous cities of St. Paul and Minneapolis, has been duly created and established by the state board of health, and its final order so doing was properly filed with the governing body of the city of St. Paul and with the clerk of the district court of Ramsey county, on August 22, 1933; that there was no appeal from the order; and that, on October 17, 1933, the city council of the city of St. Paul met to elect two trustees, as provided in section 4. The minutes and records of the city council show that this occurred on the last-named date: At a regular meeting of the city council of the city of St. Paul, called to elect its two trustees of the board of trustees of the newly created sanitary district, the city council determined to elect by ballot, all members of the council being present and the mayor presiding; a canvass of the ballots cast disclosed that respondent May, a member of the council, received four votes for the office of such trustee, and respondent Keller, a citizen and resident of the city holding no office other than that of notary public, received five votes for the office of trustee, and thereupon the mayor declared said May and Keller elected, and accordingly a resolution was adopted by a vote of 5 to 2 that said May and Keller were elected to the office of trustee of the board of trustees of the sanitary district, and the city clerk was directed immediately to file with the secretary of state a certified copy of the resolution and of the full name and address of the mayor who had elected to serve as trustee on the board, and to transmit a copy thereof to the state board of health. On October 20, 1933, the city clerk of the city of St. Paul filed with the secretary of state a certified copy of the minutes of the city council as to such election and a certified copy of the said resolution of election, together with the oath of office of May and Keller, certified to on that day by the official who then administered the same. It further appears that the resolution referred to was pocketed by the mayor after announcing its adoption; and, on October 23, he returned it to the council with his purported veto, but the council on the same day repassed the resolution over the veto by a vote of 4 to 1. On the advice of the Attorney General that the city council of the city of St. Paul had failed to elect two trustees within the time fixed by the section quoted, the Governor appointed relators trustees. No more need be said as to further proceedings, for we have come to the conclusion that respondents were elected trustees on October 17, that proper record of such election was completed on October 20, when respondents took the oath of office, thereupon becoming duly qualified members of the board of trustees of the sanitary district established by the board of health in virtue of said chapter 341, Laws 1933. That being so, what transpired after October 20th can neither strengthen nor destroy the right and title that respondents then possessed to such office and will not be discussed or considered.

It is readily perceived that the claim of relators depends on whether or not the mayor of the city of St. Paul had the power to veto the act of the city council of October 17, 1933, electing respondents trustees. If he is given no such power by chapter 341, there can be no question as to the legality of respondents' election. The here pertinent parts of section 4 of the chapter reads: ‘The District shall be governed by a Board of Trustees who shall be appointed or selected as follows: Within 60 days after the filing of the order of the State Board of Health confirming the order creating said sanitary district, with the clerk of the District Court of the county in which each city of the first class is located, should there be no appeal by any municipality, citizen or taxpayer * * * the city councils, or other governing bodies of the cities within said sanitary district shall each elect one of its own members as trustees to said board, and also one trustee from the citizenry of each city or county wherein such cities of the first class are located; provided that no such appointee from said citizenry shall hold office under the state or any of its political subdivisions except that of notary public. The Mayor of each city or such other member of the governing body as he may name shall also be a trustee during his term of office as Mayor. The Governor shall also appoint one member to such board from the state at large. * * * The city clerk of each such city shall immediately, upon the election of the two trustees by the city council of his city, file with the Secretary of State a certified copy or copies of the resolution or resolutions of the city council of his city electing the said trustees. * * * If the city council, or mayor, of any of said cities of the first class shall within the time specified herein fail to select, and cause to be certified, any of the trustees to be chosen as above provided, the Governor shall thereupon select and appoint such trustees as have not been so designated. * * *’

The Legislature by chapter 341 did not in any manner interfere with or affect the municipalities within the sanitary district created thereunder. The board of trustees of such district functions under the provisions of that chapter and is not controlled by the charter or ordinances of the municipalities found within the district. Its trustees are not officers or servants of the cities, but of the sanitary district, or rather of the state. It is evident that the Legislature intended that the trustees should be selected promptly. The statute specifies how and by whom it should be done. The mayor of each city of the first class within the district may be a trustee during his term as mayor if he so elects. If he does not elect to serve, he has the right to appoint in his stead a member of the city council who shall be such...