11-16-37 City Council Minutesa
Nov. I6, I937.
Meeting Balled to order by the Chairman(Paul a. Seeman).
Members present.,Frandeen,Seeman,Reiss,Engelbreteen and Johnson
Minutes of the pr*vious meeting read.There being no objections or
corrections minutes ordered accepted as read.
Motion by Engelbretson seconded by Frandsen that the Clerk write
Mr. L.W.Maddaus regarding the Police Clock,so that it could be
returned to the factory for inspection.
Frandeen,Seeman,Engelbretsom.,Reles and Johnson(yew).
Motion by Johnson seconded by Frandsen to grant the Northern States•
Power Co. Permit to erect 5 poles an Winnetka Road south of
Medicine Lake Road.
Frandeen,Seeman,Reiss, Engelbreteon and Johnsen (yes)/
Motion by Frandsen seconded by Johnsen to grant building permit to
P.H. Case.
Frandsen, Seeman, Reiss, Engelbretson, and Johnsen (yew).
The Chairman read the decision by the Supreme Court in the matter of
Christensen vs. Engelbretson and Christensen Ve.Johnson. There being
no objectione,decisicne ordered incorporated in the minutew.
State ex rel. R.C.Chrieteneen #17I Endorsed:
ApT. ellant .
3I368 vs. Filed Nov. 5,I937
Lester F.Jchnson, Russell C.Gunderson
Respondent. Clerk Minn.Supreme Court.
al l abu s
Appeal from an order of the dfstrict court of Hennepin county
denying a petition for leave to file an � information in the nature
of qup warranto. Held.
I. The case would be exceptional and one in which it clearly
aprears that public interest require it, to justify the court in
overruling the judgement of the attorney general in refusing to
Institute the proceedings of consent thereto.Sueh exceptiinal
circumstances do not ax,ear in this case.
2. The granting or refusing of a petition of this nature rests in
the sound descretion of the couet upon a consideration of allthe
circumstances involved.
3. The record faile to reveal and abuse of descretion of the court
in refusing to grant the petition herein:.
Affirmed.
OPINION
Hilton,Justice.
This is an appeal from an order of the district court of
Hennepin county,denying a petition for leave to file an information
In the nature of quo warranto.
The facts may be summarized as follows: At the December,I936,
election_ for the office of recorder in the village of Golden Valley,
petitioner,respondent,and a third party were candidates for the office.
Respondent was declared elected by the canvassing board,but,in an
elevtiorr contest proceeding brought by the petitioner in the Hennepin
county district court,a recount was had and the court found therefrom
that there was a tie vote and hence a vacancy existed in the office of
recorder.The court accordingly remanded the matter to the village
council with instructions to fill the vacancy by appointment, under
the provisions of laws I929.c.4I3,S2,which authorizes the council to
fill vacancies- by appointment. At a meeting January I9,I937,the council
appointed the respondent as recorder and petitioner began these
proceedings to oust him from that office.
Petitioner claims forst ,that the council proceedings resulting
in the aprointment of the respondent were irregular and illegal;
Seco nd,that respondent is a member of the school boarl he is dis-
qualified from holding the office of recorder on the ground that the
duties of the two offices are incompatible,and third,that no vacancy
existed in the office of recorder which the council had authority
to fill by appointment.The court below denied the petition and dismissed
the proceedinge,and this appeal was taken.
The record indicated that the attorney general refused to institute
these proceedings or consent thereto. The case would be exceptional
and one in which it clearly appears that public interest require it,
to justify the court in overrulin-g;,,hie judgement.State ex:. rel.Dowdall
v. Dahl,69 Minn.I08, 7I N.W. 9I0. Nothing appears in this case which
gives it such an exceptional oharacter as to justify the court in
interfering with his judgement. While his decision is not to be taken
as determininative,it is not to be lightly overridden.State ex rel.
Town of Stuntz v. City of Chisholm,I96 Minn.285, 264 N.W. 798.
In that case we did grant the petitioners leave to f ilt- an:x informat ion
after the attorney general had refused to act,but the circumstances
were exceptional and presented a situation far different from that now
before us.
The granting or refusing of a petition of this nature rests in
the sound descretion of the court. State ex rel. Dowdall v. Dahl,
supra;State ex rel. Young; v. Village of =ent,96 Minn. 855, 104 N.W.
948, I L.R.A. (N.S. 826;,-' 6 Ann. Cas. 905; State ex -rel. Town of
Stunz v. City of Chisholm, supra.. In ex-cercising; its discretion,the
court may consider all the circumstances bf 4the case, including the
position and motives of the petitioner,and the necessity and policy
of granting the petition. State ex rel. Douglas v. School District
No. 1081 85 Minn. 230, 88 N.W. 75I. In the instant case, the court found
that there was no irregularity in the council meeting resulting in
respondents appointment. It also found that petitioner has no interest
in these proceedimgs,:4different from that of the general ptblie,that
public affairs would be disrupted if the petition were to be granted
and these proceedings carried on for some length of time,and that
thereforeit yould not be in the interest of the public to grant the
writ. Without going to detail, it is sufficient to say that the
record sustains these conclusions. Considering all these circumstances,
coupled with the fact that there is an absence of consent of the
attorney general to the proceedinge,a ni the additional fact -'that
the record indicates that petitioner is actuated by personal motives
rather than a desire to serve the interest of the gublic,we osnnot
escape the cGnolusion that then was no abuse of descretion in lefusing
the petition
The court also found that there is no incompatibility between
1
respondents position on the school board and the office of recorder.
If such incompatibility exists, the record falls to reveal it.Gn the
contrary, it tends to substantiate the court's conclusion.
In the election contest Prooeedine, the court found that a vacancy
existed and ordered the council to fill it by appointment. No appeal
was taken in that action.;Petitioner will not be permitted in these
proceedings to collaterally attack that finding and order and we will
not consider his claim herein, that no vacancy existed which the council
had authority to fill by appointment.
This disposes of the matters involved in this appeal.
Affirmed.
Peterson, Justice, conrurring especially:
I coucur in the result only upon the ground that respondent's
appointment is found to be valid upon the msrits, for the reason,.
stated in the last paragraph of the opinion. Other matters- discussed
in the opinion are not pertinent. I da not give my assent to them.
#i73
Hennepin county.
State ex rel. R.C. Christenson,
Appellant.
3I369 vs.
William Engelbretson
REspandent
S Y LL A B U S
Hiitorr,J.
Concurs: Psters=,J.
Endorsed:
Filed Nov. 5, I937
Russell 0. Gunderson, Clerk
Minn. Supreme Court.
Appel from an order of the distcict court of hennepin county denying
a petition for leave to fi;e an information in the nature of
quo warranto. This case is a companion to that of State ex rel.
Ch ristansen v. Johnson,No. 31368, and is governed by the same
cansideraticnv which controled in that case.
A:f f i rmed.
OPINION.
Hilton, Justice.
This is an appeal from an order of the district court of
Hennepin county, denying a petition for leave to file an Information.
in the nature of quo warranto, and: ;• ry, companion case to State ox rel.
Christianson v. Jchnson,No 3I3680.:
Respondent has been a member of the village council of ° the: �°
village of Golden valley for same years, From I933 to I935 he served
as village rec-order. He was elected to the office of village trustee -
January I, I935, for a three year term. In Rovember, I936, one
Fred Bies,, then recorder of the village, resigned, leaving a vacancy
irr the office. His term was to expire on the last day of the following
manth, and a regular election for village recorder was to take place
in a few weeks. A special meetin of the council was -called for the
purge" of appointing a recorder -to act for the few remaining weeks
of the enexpired portion of the term. This meeting resulted in the
appointment of the respondent to perform the duties of the reorder
until the new recorder was elected and qualified. He proceeded to
fulfill these duties for the remainder of the term.
Petitioner, by these proceedings, seeks to oust him as a trustee
of the village onthe ground that by acting as recorder and erforming
the duties of that office, respondent vacated or forfeited his office
as trustee, and now holds i1 without right. The court below denyed the
petition and dismissed the proceedings and this appeal was taken.
This case is governed by the s
in our decision in the companion- c
respondent agreed to perform the d
and courtesy to the council, since
before the election to select a ne
the time of his aprointment, re7spo
standing that he did not have to v
appears that respondent did not to
file bond, or accept eompensaticn
He Was experienced with tht office
recorder for a two year term befor
It would take considerable time an
duties of the office. Respondent a
10
ime considerations which controlled
wse. The court below found that
sties of the recorder as a convience
there were only a few weeks remaining
r recorder. The court also found at
ident accepted it only on the under
Lcate his office as trustee. It
ce the oath of office of recorder
"or performing the duties involved.
and its duties, having served as
s his election as a trustee.
L effort to teach a new man the
1sumed and performed the duties
or reeoreer, out matte it clear that by so doing he did not intend to
resign as trusee and take over the office of recorder. He appears to
be capable and honest and fit for the office he holds, and petitioner
has no interest in these proceedings different fro# that of the
general public. The court found that it would not be in the interest of
the public to grant the petition. The consent of the attorney general
is lacking. What was said in the companion case disposes of this one.
The record sustains the conclusions of the trial judge and no abuse
of discretion on his part in refusing the petition is revealed.
Affirmed.
Peterson, Justice, concurring specially:
I concur in the result for the reason stated in my concurring
opinion in State ex rel. Christianson v. Johnson, No, 31368.
* _ - _ - - - - - - - - - - - - - - - - - - - - - --F _ - - - -
Motion by gngelbretson seconded by Johnson to select two judges and
two clerks by ballot from names of applicants before the council
Frandsen, Seeman, Engelbretson, Reiss and 4ohnson (yes).
Carl Johnson and Mrs Horsager received four votes each and were
named judges. Geo. Johnson and Mrs Mullaney received three votes
each and were named clerks for the election to be held Dec. 7th,I937.
it
Moticn by Engelbretson seconded by Johnson to purchase two straight
and on "V" type ' snow plows from the State Highway Department for $100.00
Seeman, Reis,a: Engelbretson, and Johnson (yes) Frandsen (no).
Motion:by Johnson seconded by Engelbretson that Chairman Seeman
proceed with negotations for bridge on Lenox Avenue.
Seeman, Reiss, Engelbretson, and Johnson(yes) Frandsen (no).
Motion by Engelbretson seconded by Johnson that Chairman Seeman
instruct road foreman Bies to make sample street sign according to
plans and present to the next regular meeting.
Frandeen,5eeman, Engelbretson, Reiss and Johnson (yes).
Moticn by Engelbretson seconded by Johnson Chairman be authorized
to rent or purchase needed equipment for the survey project.
Sesman,Reiss,Engelbretson and Johnson (yew)/ Frandsen (no).
Motion by Engelbretson seconded by Johnson to hold special meeting
on Nov, '36th. at 8:00 P.M. to consider the matter of defaulted
Water Main Bonds,also any other matter that may properly come
before the meeting.
Frandsen,Seeman, Reiss, Engelbretson and Johnson (yew).
Motion by Johnson seconded by Reiss authortri.ng road foreman Bien
to make arrangemente to take care of snow plowing in case of
emergency until next meeting and to make arrangements for the future
plowing of roads and streets and submit proposal to the council.
Seoman,F.eiss,En;elbretson, and Johnson (yes Frandsen (no).
Motion by Johnson seconded by Reiss that next regular meeting be
held on Dec. 9th. $'P M,
Frandsen, Seeman, Reiss; Engelbretson and Johnson,(yes).
The Golden Valley Police Association presented a picture of the
I937 Police Force to the Council.
No further buisness meeting declared adjourned.
Expenditures ---------------------------------------------- $68-1. 90
Receipts-------__---._ --------------------------------- '$40.'04