Truelsen v. City of Duluth

• Decision Date: 06 May 1895
• Docket Number: 9472--(324)
• Citation: 63 N.W. 714,61 Minn. 48
• Parties: HENRY TRUELSEN v. CITY OF DULUTH and Others
• Court: Minnesota Supreme Court

63 N.W. 714

61 Minn. 48

HENRY TRUELSEN v. CITY OF DULUTH and Others

Nos. 9472--(324)

Supreme Court of Minnesota

May 6, 1895

Proceeding instituted by Henry Truelsen in the district court for St. Louis county to contest the validity of a special election. Notice of contest was served upon the city and upon Ray T. Lewis, mayor of the city, and upon Benjamin F. Howard a member of the city council, who appeared. From a judgment affirming the validity of the election, entered in pursuance of the findings and order of Lewis, J., before whom the matter was tried, the contestant, Truelsen, appealed. Reversed.

Judgment reversed.

S. T. & Wm. Harrison, for appellant.

Page Morris, W. W. Billson, and J. L. Washburn, for respondents.

OPINION

COLLINS, J.

One branch of this litigation, which grows out of a special election held in the city of Duluth under and by virtue of Sp. Laws 1891, c. 55, § 35, was before us at the last term. See opinion in 60 Minn. 132, 61 N.W. 911. On the case being remanded, it was duly brought to trial, and from a judgment affirming the validity of the election, and declaring three out of the ten propositions submitted to the voters duly carried, the contestant appeals. Quite a number of questions have been argued, but we shall consider only those which seem to have real merit.

Section 35, supra, authorizes the issuance of "water and light bonds" by the city to such an extent as may be necessary for the purpose of erecting and maintaining suitable water and light plants, or for purchasing any water or light plant in operation in said city. These bonds were to be issued sold, and evidenced as were the general bonds of said city, and were to "be a first lien upon all water and light appliances and structures of every kind erected, owned, or purchased by said city." Then follows a provision regulating the manner of issuance, as follows:

"Said water and light bonds shall be issued in the following manner:

"Whenever the common council may deem it expedient they shall submit to the legal voters of the city, at any general city election or at a special election to be called by said common council for that purpose, the proposition of issuing said water and light bonds to an amount deemed by them desirable to be issued at such time. Said election shall be called, if a special election, and whether special or general shall be conducted, in the same manner and with the same formalities as other city elections. The ballots to be voted at said election may read as follows:

"(1) In favor of the proposition of issuing water and light bonds to the extent of (here state amount) for the purpose of erecting or purchasing a water plant.

"(1) Against the proposition of issuing water and light bonds to the extent of (here state amount) for the purpose of erecting or purchasing a water plant.

"(2) In favor of the proposition of expending the moneys derived from the sale of said bonds in erecting a water plant.

"(2) In favor of the proposition of expending the moneys derived from the sale of said bonds in purchasing a water plant already in existence in said city.

"(3) In favor of the proposition of issuing water and light bonds to the extent of (here state amount) for the purpose of erecting a light plant for the city of Duluth.

"(3) Against the proposition of issuing water and light bonds to the extent of (here state amount) for the purpose of erecting a light plant for the city of Duluth.

"(4) In favor of the proposition of using the moneys derived from the sale of said bonds in erecting a light plant for said city.

"(4) In favor of the proposition of using the money derived from the sale of said bonds for purchasing a light plant already in existence in said city.

"If a majority of the votes cast at said election shall be in favor of issuing water and light bonds, the city of Duluth shall, through its proper officers, without further act, be authorized to issue said bonds to the amount voted and to sell and negotiate the same as other city bonds. It shall be the duty of the common council to expend the moneys derived from the sale of said bonds in accordance with the directions of the voters as shown by said election.

"Said common council may from time to time thereafter submit the proposition of issuing additional water and light bonds, in such additional sums as they may deem wise, to the legal voters of said city. The ballots may be in substantially the foregoing forms, with such changes as may be necessary, and, if a majority of the votes cast at such election shall be in favor of issuing said additional water and light bonds, the said city of Duluth, through its proper officers, shall be authorized to issue such additional water and light bonds as may be authorized by said voters."

We shall hereinafter have occasion to refer to other provisions of section 35, but will now pass to the fact that, by resolution of the common council, there was called a special election, to be held October 26, 1894, at which time should be submitted to the electors of the city 10 distinct propositions relating to the issuing of bonds for adoption or rejection. The propositions were distinctly stated in the resolution and the form of the ballot prescribed. These propositions were set out, and the form followed in the ballot actually used, which was as follows:

CITY BALLOT.

Put a cross mark (X) opposite the word "Yes" standing opposite each

[arrow

proposition which you wish to vote for, and a cross mark opposite the

down]

word "No" standing opposite each proposition which you wish to vote

against, in the squares indicated by the arrow.

1. Upon the proposition of issuing water and light bonds to the

Yes

___

extent of two million one hundred and six thousand dollars ($

No

2,106,000) for the purpose of erecting or purchasing a water and

light plant.

2. Upon the proposition of expending the moneys derived from the

Yes

___

sale of said bonds in erecting a water and light plant.

No

3. Upon the proposition of expending the moneys derived from the

Yes

___

sale of said bonds in purchasing a water and light plant already in

No

existence in said city, said bonds to be issued and sold by the

common council as the same may be needed to pay for said plant, or to

discharge or to take up the bonded indebtedness of said plant.

4. Upon the proposition of issuing water and light bonds to the

Yes

___

extent of two million one hundred and six thousand dollars ($

No

2,106,000) for the purpose of erecting or purchasing a water plant.

5. Upon the proposition of expending the moneys derived from the

Yes

___

sale of said bonds in erecting a water plant.

No

6. Upon the proposition of expending the moneys derived from the

Yes

___

sale of said bonds in purchasing a water plant already in existence

No

in said city.

7. Upon the proposition of issuing water and light bonds to the

Yes

___

extent of two million one hundred and six thousand dollars ($

No

2,106,000) for the purpose of erecting or purchasing a light plant

for the city of Duluth.

8. Upon the proposition of using the moneys derived from the sale

Yes

___

of said bonds in erecting a light plant for said city.

No

9. Upon the proposition of using the moneys derived from the sale

Yes

___

of said bonds in purchasing a light plant, already in existence in

No

said city.

10. Upon the proposition that, in the event the voters at this

Yes

___

election shall declare in favor of purchasing a water and light plant

No

already in existence in the city of Duluth, additional water and

light bonds to the extent of six hundred thousand dollars ($ 600,000)

shall be issued for the purpose of extending and improving said

plant, said bonds to be issued and sold by the common council, as the

same may be needed for said purposes.

At this election there were cast 4,414 votes according to the poll lists and the decision of the city council acting as a canvassing board.On the proposition numbered 1 there were cast 4,166 votes, of which 3,215 were in the affirmative, and 951 in the negative.On proposition numbered 2 the total vote cast was 3,532, of which 1,478 were affirmative, and 2,054 negative.On proposition numbered 3 there were cast 4,047 votes, the affirmative vote being 2,137, the negative 1,910.On proposition numbered 10 the total vote was 3,541, of which 2,235 were in the affirmative, and 1,306 in the negative.Upon canvassing the returns, the city council declared the first, third, and tenth propositions carried, and this was the decision of the court.It was held and stands admitted that propositions 2, 4, 5, 6, 7, 8, and 9 were defeated at the polls.

1. The first question which we are required to determine arises out of proposition 1, whereby there was submitted to the voters a proposal to issue water and light bonds to the extent of $ 2,106,000, for the purpose of "erecting or purchasing a water and light plant," which proposition, as we have seen, was adopted by a very large majority of the total vote cast at the election. By turning to section 35, it will be seen that the city was authorized to issue bonds for the purpose of erecting and maintaining suitable water and light plants, or for purchasing any water or light plant in operation in said city. It is also to be noticed that the wording (the language being that last above quoted) of that part of the ballot relating to proposition 1 was not in strict accordance with any of the forms laid down in the statute, for there was none which in so many words provided for an expression of the will of the voters as to the erection or purchase of a water and light plant; that is, for the erection or purchase of a combined plant. But the thing authorized to be done by the city was the issuance...