State v. Oehler

• Decision Date: 28 November 1944
• Docket Number: No. 33934.,33934.
• Citation: 218 Minn. 290,16 N.W.2d 765
• Parties: STATE ex rel. CITY OF ST. PAUL et al. v. OEHLER.
• Court: Minnesota Supreme Court

16 N.W.2d 765

218 Minn. 290

STATE ex rel. CITY OF ST. PAUL et al. v. OEHLER.

No. 33934.

Supreme Court of Minnesota.

November 28, 1944.

Original quo warranto proceeding brought by the State, on the relation of the city of St. Paul and Bruce J. Broady, to test the right of Harry W. Oehler to retain the office of corporation counsel of the city. On relators' general demurrer to respondent's answer.

Writ ordered issued.

Bruce J. Broady and Ira Karon, both of St. Paul, for relators.

Harry W. Oehler and Francis M. Smith, both of St. Paul, for respondent.

JULIUS J. OLSON, Justice.

This is an original quo warranto proceeding brought by the state upon the relation of the city of St. Paul and Bruce J. Broady to test the right of Harry W. Oehler to retain the office of corporation counsel of the city. On September 25, 1944, in State ex rel. City of St. Paul v. Oehler, Minn., 15 N.W.2d 783, 784, wherein we denied respondent's motion to vacate the order issuing the writ and to quash the proceedings, we said, in arriving at that conclusion: "* * * The affidavits presented here are not sufficient to show that leave [to file the information for the writ] was improvidently granted, but merely emphasize the fact that there is a dispute between the parties not only as to the proper construction of the provisions of the St. Paul charter relating to dismissal and removal of corporate officers, but also as to the facts leading up to the removal of respondent." And further, 15 N.W.2d at page 785: "* * * Our denial of the motion is not to be construed as an expression of opinion upon the right of the city council under the St. Paul charter to remove respondent from office without formal charges and a hearing thereon, nor upon the validity of other defenses alleged in the answer. Any questions of law which are involved in the proceedings can be determined upon a demurrer to the answer, or, in case a reply and not a demurrer is interposed, upon a motion based upon the pleadings. Should the right or want of right to remove respondent without a hearing appear from the pleadings as a matter of law, no reference will be necessary, and the delay incident to a reference will be avoided."

Upon the filing of that decision, relators interposed a general demurrer to respondent's answer. The case is now here on questions of law alone.

The determinative facts may be thus summarized: St. Paul is a city of the first class and operates under a home-rule charter. Certain sections thereof, deemed helpful to decision here, will be referred to by section numbers.

St. Paul's municipal elections are held biennially. (§ 4.) "At each general municipal election there shall be elected a mayor, a comptroller, and six councilmen, and the term of office of each of such officers shall be two years * * *, and until their respective successors shall have been elected and qualified." (§ 5.) The mayor must be a qualified elector of the city. He is required to "take care that the ordinances of said city and the laws of the State of Minnesota are duly observed and enforced and that all other executive and administrative officers of the city discharge their respective duties." (§ 54.) He is also required to "preside at the meetings of the council and shall vote on all business before that body, just as shall councilmen, provided that when the question before the council is sustaining the mayor's veto, or passing any ordinance or resolution notwithstanding the mayor's veto, or upon the removal from office of any persons on charges preferred by the mayor, then the mayor shall have no vote thereon." (§ 55.) When, in the judgment of the mayor, "any councilman, as councilman, or as the head of any administrative department, has not conducted the business of the city honestly, faithfully and with reasonable skill, it shall be the duty of the mayor to file with the city clerk charges against said officer, and on the filing of said charges with reasonable specifications as to the concrete instances of dishonesty, unfaithfulness or incompetency charged, it shall be the duty of the council to try publicly the truth or falsity of such charges, and if they be found true and of sufficient gravity to indicate dishonesty, unfaithfulness or incompetency on the part of the accused, the council shall remove said accused from office." (§ 59.) (Italics supplied.)

"The legislative authority of the City of St. Paul shall be vested in the council, which shall be composed of the six councilmen and the mayor, who ex-officio shall be the presiding officer or president thereof." (§ 110.) The general powers of the council are set forth in § 126, and § 127 grants certain specific powers in addition to the general powers conferred by § 126. Generally, these are broad and comprehensive, and we entertain no doubt that ample jurisdiction is delegated by the charter to the council to act with finality upon issues such as are here presented.

Under the provisions of § 176, the corporation counsel "shall be elected by the council"; his term of office "shall be for two years and until his successor shall be elected and qualified." Section 177 provides that he "may appoint such assistants as the council, by an administrative ordinance shall provide and at such compensation as it shall fix, and for acts of such assistants he shall be responsible, and each of them shall hold office during the pleasure of corporation counsel and shall perform such duties as the corporation counsel shall designate. It shall be the duty of the corporation counsel and his assistants to give their whole time and attention to the discharge of their official duties." Under § 178, he is required to "attend to all the legal business of the city." He is the legal "advisor of the mayor, the council, and all city officers, and when requested by any thereof shall furnish opinions upon such legal questions of the business of the city as may be submitted to him. He shall also render and perform such other legal duties as may be prescribed by the council. All officers of said city are prohibited from retaining, feeing or employing any other attorney; * * *."

The important and controlling section involved in this litigation is 28, which reads: "Every person appointed to any office by the mayor, or by the council or elected to office by the people, may be removed from such office by the council by a five-sevenths affirmative vote of all the members elected. But no officer elected by the people shall be removed except for cause nor until such person shall have had a reasonable opportunity to be heard in his defense. * * * In such cases, the council shall act by written resolution only, and said resolution shall contain a summary of the charges against said officer and the reasons for his removal."

On August 18, 1944, the city council met in public session. At that time the following resolution was introduced by Councilman Rosen: "Resolved, upon request of the Mayor, that Harry W. Oehler be and hereby is removed as Corporation Counsel."

Upon roll call, five of the councilmen voted yea to adopt the resolution, one councilman voted nay, and the mayor did not vote. On August 25, the council elected Bruce J. Broady, one of the relators here, as corporation counsel to take respondent's place. The latter, however, refused to surrender the office, and these proceedings naturally followed.

Respondent has raised many alleged grounds upon which he founds his claim of right to retain the office of St. Paul's corporation counsel. In substance, however, we think his position may be summarized in this fashion: He was "elected"...