State v. City of Fraser
| Citation | 254 N.W. 776,191 Minn. 427 |
| Decision Date | 27 April 1934 |
| Docket Number | No. 29605.,29605. |
| Parties | STATE ex rel. PETERSON, Atty. Gen., v. CITY OF FRASER et al. |
| Court | Supreme Court of Minnesota (US) |
Appeal from District Court, St. Louis County; B. F. Wright, Judge.
Quo warranto proceeding by the State, on the relation of Harry H. Peterson, Attorney General, against the City of Fraser and others. Decision in favor of the defendants. From an order denying his motion for a new trial, the relator appeals.
Order affirmed.
Harry H. Peterson, Atty. Gen., and David J. Erickson, Asst. Atty. Gen. (John H. Hougen, of Minneapolis, Whipple & Atmore, of Duluth, and C. E. Berkman and Chas. T. Wangensteen, both of Chisholm, of counsel), for appellant.
Baldwin, Holmes, Mayall & Reavill, of Duluth, and John M. Gannon, of Hibbing, for respondents.
Quo warranto in the district court by the Attorney General, challenging the validity of the reorganization of the village of Fraser as a city of the fourth class. Relator appeals from an order denying his motion for a new trial.
On the Mesaba Iron Range in St. Louis county, the cities of Chisholm and Fraser lie adjacent to each other. The former is much the larger. So far as real estate goes, the assessed valuation of both consists largely of land upon which there are iron mines and other land containing proved deposits of merchantable iron ore. Fraser was incorporated as a village in 1923. Then or soon afterwards an attempt was made by the then village of Chisholm to reincorporate as a city of the fourth class so as to include the territory of Fraser and other adjacent lands. That effort failed.
With the acknowledged purpose of blocking, if possible, another Chisholm effort to absorb Fraser, the inhabitants of the latter village in August, 1931, instituted the proceeding, which was successful, to incorporate as a city of the fourth class, under Mason's Minn. St. 1927, §§ 1268-1271. This action challenges the validity of that proceeding, and seeks ouster of the city officers who are respondents. The proceeding was commenced August 18, 1931, by a petition to the judges of the district court of the Eleventh judicial district for the appointment of a board of freeholders to frame a city charter. It was signed as the statute requires (Mason's Minn. St. 1927, § 1269), by more than 10 per centum of the voters of the village. Thereupon the judges appointed a board of fifteen members, each of whom had been a qualified voter of the village for at least five years. That board framed a charter which was adopted at an election, September 1, 1931, called for that purpose by more than four-sevenths of the voters lawfully voting (Mason's Minn. St. 1927, § 1285). The proceeding was completed by the filing of the duplicate certificates required by Constitution (article 4, § 36) and statute (Mason's Minn. St. 1927, § 1285), one with the secretary of state and the other with the register of deeds of St. Louis county. City officers were not elected until early December, 1931. There is this specific finding:
"That all said proceedings for the appointment of said board of freeholders, the framing of the proposed charter for the government of the said Village of Fraser as a city of the fourth class and for the submission of such proposed charter to the vote of the people of the Village of Fraser, and the adoption of such charter were initiated and carried out in good faith by the residents and voters of said Village of Fraser; that the motives of the said residents and voters of the said village in initiating the said proceedings and in carrying out the same were proper and lawful; that the residents and voters of the said Village of Fraser in connection with the initiating and carrying out of said proceedings were not dominated or controlled by others, and that the said proceedings were in accordance with the wishes and desires of the said residents and voters of the Village of Fraser and were their voluntary acts."
The state Constitution declares that:
"Any city or village in this state may frame a charter for its own government as a city consistent with and subject to the laws of this state." Minn. Const. art. 4, § 36.
That section goes on to direct the Legislature to make provision "for a board of fifteen freeholders, who shall be and for the past five years shall have been qualified voters" to be appointed by the district judges "for a term in no event to exceed six years" as a charter commission which "shall be permanent," vacancies therein to "be filled by appointment in the same manner as the original board was created." That constitutional authorization of home rule city charters has been implemented by Mason's Minn. St. 1927, §§ 1268-1271. Section 1268 begins thus:
"Any city or village in the state of Minnesota, whenever incorporated, may frame a city charter for its own government in the manner hereinafter prescribed."
Section 1269 directs the appointment by the judges of the district court of the judicial district in which such city is located of There are other provisions not now important, except one providing that any member of the board may "be removed at any time from office" upon grounds and in the manner stated.
Practically all land within the limits of Fraser is owned by the Tubal Iron Mining Company, a subsidiary of the Oliver Iron Mining Company. It is frankly admitted that its officers and attorneys have been behind the reincorporation of Fraser from the beginning. Their purpose is to keep the Fraser property beyond reach of the taxing power of Chisholm.
No member of the Fraser board of freeholders owned real estate within the limits of the municipality until, in order to qualify him as a freeholder, the Tubal Iron Mining Company conveyed to each of them a small tract of vacant land within the then village. The conveyances were gratuitous, none the less so because there was staged a sort of ritualistic but sterile proceeding whereby nominal sums of money passed from each grantee to the grantor as ostensible consideration for the grants. The deeds were accepted by the grantees and placed on record. Each deed passed a title in fee to the grantee. Each grantee was by his deed vested with an estate of inheritance. The land so gotten by each thereby became assessable for taxation in his name.
The argument for the Attorney General can be adequately considered under two heads. First, there is claim that the statute, section 1269, imposes as condition precedent to the reincorporation of a village as a city, with a home rule charter, "a freehold class of population." The other claim is that the requirement of a board of freeholders is jurisdictional and was not satisfied.
1. But we first note a suggestion, not much pressed, that the proceeding was improvidently instituted by the Honorable Henry H. Benson, the predecessor in office of the present Attorney General. The idea seems to be that the state as such is not interested in what is said to be a controversy between Chisholm and Fraser, even though the former seeks merely additional property for taxation and the latter resists in the interest of the mining company. We decline exploration in that direction, for it is enough for us that the Attorney General applied for the writ. If he had come into this court asking us to try the questions of fact, we might have objected that the proceeding should have been instituted in the district court. But this one was started there, and inasmuch as the Attorney General in his discretion decided that he should proceed, there is nothing for any court to pass upon as to the necessity for or policy of proceeding. In that field, the discretion of the Attorney General is plenary. He is a constitutional officer (Minn. Const. art. 5, § 1), and, as such, the head of the state's legal department. His discretion as to what litigation shall or shall not be instituted by him is beyond the control of any other officer or department of the state. 2 R. C. L. 919. Added to that is the fact that the writ of quo warranto is ordinarily "of right to the commonwealth." State ex rel. Hilton v. So-Called "Village of Minnewashta," 165 Minn. 369, 374, 206 N. W. 455 (following State ex rel. Young v. Village of Kent, 96 Minn. 255, 104 N. W. 948, 1 L. R. A. (N. S.) 826, 6 Ann. Cas. 905).
2, 3. The existence of resident freeholders is not condition precedent to reincorporation of a village as a city under a home rule charter. The language of the Constitution is that "any city or village in the state" may frame a home rule charter. That is plain and inclusive of all cities and villages in the state not already having a home rule charter. The statute also, section 1268, applies literally to "any city or village in the state."
But that is not quite responsive to the argument for relator which asks us to suppose that, if the framers of either statute or Constitution or the authors of both, had thought of any village or city without a relatively substantial class of resident freeholders, there would be provision excepting such city or village from the operation of the law. See Riggs v. Palmer, 115 N. Y. 506, 510, 22 N. E. 188, 5 L. R. A. 340, 12 Am. St. Rep. 819.
With us ownership of property is not prerequisite to the right to vote or that to hold office. The theory of our governmental organization is that citizens everywhere, whether poor or opulent, with or without property, have a responsibility for the maintenance and right operation of government. Hence, all voters are eligible to public office. It would be glaring contradiction of that...
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