State ex rel. Minnesota Railway Construction Co. v. City of Lake City

Cornell, J.* On the return-day of the alternative writ at the October term, 1877, both respondents made a motion to quash the writ as improvidently granted, on the grounds: (1) That the provisions of the act of March 6, 1868, entitled “An act to authorize the village of Lake City to aid in the construction of the St. Paul & Chicago railway,” (Sp. Laws 1868, c. 15,) were, as respects the town of Lake, then known by the corporate name of the town of Lake City, wholly nugatory, because the subject of that act, as indicated in its title, related to the “village,” instead of the “town,” of Lake City, and that the amendatory act of February 2, 1869, (Sp. Laws 1869, c. 41,) did not cure this defect. (2) Conceding the validity of such act as amended, and its application to the town of Lake City, the authority it conferred to create and issue bonds for the purpose named, expired on the first day of August, 1870, and as none had been formally executed and delivered under the act prior to that date, it is now too late' to regain it; and (3) That the agreement entered into by the town, as evidenced by the ordinance, and set up in the writ, was without consideration and void. In addition to these grounds of objection common to both respondents, the city of Lake City made the further one that the writ would not lie as against it, because, being a new and distinct municipal — 412 — corporation, since created and erected out of a portion of the territory of the original town of Lake City, and other territory, it was not liable for any of the debts or obligations of the old town. Having no doubt as to the insufficiency of any of these objections save the last, they were overruled in the decision then made; but feeling unwilling to finally dispose of the question presented by the last objection, without a more careful examination than the court was able to give it at that time, it was deemed best, under the then existing circumstances, and in view of the importance of the question, to deny the motion on this point, pro forma, reserving its final .adjudication for further consideration. Since then, various motions have been made and are now pending before us, involving the power of this court to award a jury trial in proceedings of this character, and, also, questions as to the sufficiency of portions of the respective answers which have been filed by the respondents. Having given full consideration to all the questions thus presented, including the one which was reserved as above stated, the court will now proceed to make final disposition of the same, and, also, to give the reasons which controlled its decision in overruling the objections first raised and determined. The line of railway in aid-of which the special law cf March 6, 1868, was passed, was formerly known as the St. Paul & Winona branch of the St. Paul & Pacific road, and when this law was passed, the line of road was already located from St. Paul to Winona, through Wabasha county, under the act of March 2, 1865, (Sp. Laws 1865, c. 6,) which was declared to be a public act, by the provisions of which the road was required in terms to be built “by the way of and through the following cities and villages, to wit: Hastings, Eed Wing, Lake City, Wabasha and Minneiska.” The political and municipal subdivisions of the state are matters within the judicial cognizance of the courts. In construing these statutes, then, this court must recognize the facts, that at the — 413 — time of their enactment, there was no incorporated city or village bearing the name of Lake City, within the limits of Wabasha county, although there existed, in fact, a town organization, under the corporate name of the town of Lake City, embracing in its limits government township number 111, north, of range 12, west, in said county, in which was a settlement of the size and character usually denominated a village, and through which the railroad in question was in fact actually located. It is obvious from these facts, that the-“Lake City” mentioned in the act of 1865, as one of the villages through which the road was required to be built, is the same municipal organization referred to in the first section of the act of March 6,1868, as the town of Lake City, and in other parts of said last-named act, as well as in the title thereof, as the said village of Lake City. That the use of the word “village,” instead of its corporate legal name, to designate the municipality intended, was clearly a legislative inadvertence, is made manifest by the amendatory act of 1869, which substituted the word “town” for “village,” wherever the latter occurred in the original act. The objection that the subject of the enactment was not sufficiently indicated by the title to comply with the constitutional requirement in this regard, because the word “village,” instead of “town,” was erroneously used therein, is without merit. In view of the foregoing recited facts of public notoriety, it can hardly be pretended that any one, either within or without the legislature, was deceived or misled in regard to the purposes of the legislation, as thus indicated by that title; and it affirmatively appears that the municipal corporation of the town of Lake City, and the electors thereof, acted under the provisions of the law, without question that it was intended for them. The questions raised by the second and third grounds of objection above stated have both heretofore been fully considered and determined by this court, the latter, in the case of the State v. Town of Lime, 23 Minn. 521, 526, and the former — 414 — in Warsop v. City of Hastings, 22 Minn. 437. In the last-named case, the question presented arose upon a statute identical in substance with the one now under consideration. No good reason is perceived for overruling the doctrine of those cases. Having thus stated the grounds upon which the objections taken to the writ on the motion to quash were then overruled, it remains next to consider the question, which was then reserved for further examination, and which was raised solely by the respondent, the city of Lake City. The point made is that no liability exists against the city under the act of March 6, 1868, because its corporate existence is derived from subsequent legislation, which contained, no provision making it liable for any of the debts or obligations of the town of Lake City, a portion of whose territory was included in the new corporation. Considered as a question of power solely, the absolute right of the legislature, in all cases not within any constitutional prohibition or restriction, to create, alter, divide and abolish township organizations, or municipalities having quasi corporate powers and functions, and to make such division and apportionment of the property and debts of the old corporation, in case of a division of its territory, between it and the new organization created in whole or in part out of a portion of such territory, as may suit -legislative policy or discretion and without any regard to the wishes or interests of the inhabitants affected thereby, has been so often asserted and so uniformly maintained by the courts, both federal and state, as to have become the settled and unquestioned law in this country. This right of absolute control rests upon the political nature of municipal corporations, which are created solely for public purposes, as a part of the governmental machinery of the state, and are, of course, subject to the mere'will and pleasure of the sovereign power. It is, in its nature, purely a legislative power, and whether exercised wisely and prudently, or otherwise, in any particular case, its wisdom or propriety — 415 — cannot be challenged or brought in question by the judiciary. As a necessary incident to the exercise of this power, “the 'legislature, in dividing towns, (says the court in Laramie County v. Albany County, 92 U. S. 307,) may settle the terms and conditions on which the division shall be made. It may enlarge or diminish their territorial limits, may extend or abridge their privileges, and may impose new liabilities,” .and however seemingly unjust or grievous the result to the old town and its inhabitants, or to the new, the injury is one of which courts can take no cognizance, and for which they can afford no relief. It is also equally well settled, that when- - ever, in dividing a town, no provision is made in respect to its indebtedness or obligations, the old town remains solely responsible therefor, without any right to claim contribution from the new corporation. The rule is stated by Chief Justice Parsons, in delivering the opinion of the court in Windham v. Portland, 4 Mass. 389, thus: “If a part of its territory and inhabitants are separated from it by annexation to another, or by the erection of a new corporation, the former corporation still retains all the property, powers, rights and privileges, and remains subject to all its obligations and • duties, unless some new provision should be made by the act authorizing the separation.” This is, undoubtedly, a correct statement of the rule, with the qualification, as respects the ■ public property of the old town, that the latter retains only that portion of it situate and being within the reduced limits, while the new organization acquires title to that located within its boundaries. In Laramie County v. Albany County, supra, the court, per Clifford, J., cite this doctrine as the undoubted law, and say: “Regulation upon the subject” of an . apportionment and division of the debts and liabilities “may be prescribed by the legislature; but if they omit to make any provision in that regard, the presumption must be that they did not consider that any legislation in the particular • case was necessary. Where the legislature does not prescribe . any such regulations, the rule is that the old corporation — 416 — owns all the public property within her new limits, and is-responsible for all debts contracted by her before the act of separation was passed. Old debts she must pay, without any claim for contribution; and the new subdivision has no claim to any portion of the public property, except what falls within her boundaries; and to all that the old corporation has no-claim.” The authorities in support of these propositions are very fully cited in this case of Laramie County v. Albany County, 92 U. S. 307. See also State v. McFadden, 23 Minn. 40. The writ herein, as well as the information upon which it was issued, recites that the obligations sought be enforced were contracted originally by the town of Lake, under its then corporate name of the town of Lake City. That afterwards, by an act of the legislature of February 26, 1872, the city of Lake City was created and organized into an independent municipal government, with boundaries embracing a large part of the town of Lake, and also a portion of an adjoining township; that that portion of the town so set off and included within the limits of the new city comprised most of the inhabitants, and the most valuable part of the property in the town, the taxable value of the part remaining being $232,696, while that set off amounted to $1,072,363, according to the assessment rolls of 1876. It is also stated that the act of incorporation and division makes no provision whatever for the payment of any part of the debts, or for the assumption of any portion of the liabilities of the old town by the new city, it being wholly silent upon that subject; and that there is no statute law of the state regulating or providing for the adjustment of such matters, in such a case. It is conceded by relator that, upon this state of facts, the city is not liable at law for any portion of the debts of the old town; but it is insisted that it can be made to respond for its proportionate share thereof, in equity. Upon what ground this equity can be based, it is difficult to see. "Without an obligation or duty of some kind requiring the new corporation to contribute417 toward the fulfilment of the contract of the town, there certainly can be no liability in respect thereto against it, either legal or equitable. By its charter, no duty or obligation of any kind was imposed in reference to the liabilities of the •town; and as that is the source of all its duties in this regard, the equitable claim would seem to have no support. The fact that a large portion of the taxable property and of the population in the town was transferred to the city, and the further fact that the latter profited most from the improvements for which the obligations were incurred, constituted good reasons why the legislature ought, perhaps, to have made some provision for an equitable apportionment of its burdens; but thefurnish no ground for any equitable relief by the courts, either in favor of the town or its creditors. Wade v. Richmond, 18 Grattan, 583; Laramie County v. Albany County, 92 U. S. 307. The alleged liability against the city respondent is also sought to be predicated upon the propositions that the obligation for the'issue and delivery of the bonds, and for their payment, which was contracted by the town, under the authority of the enabling act of 1868, bound the town for its fulfilment, with its then established limits, including all the taxable property therein; and that any municipal corporation subsequently created, in whole or in part, out of any portion of its territory, thereby became the successor of the town in respect to such portion of territory and the taxable property therein, and, to that extent, responsible for the liability incurred by the town; and that the binding force of this obligation is unaffected by the subsequent act incorporating the city, because of the protection afforded to all contract rights by the federal and the state constitutions. The correctness of this position depends upon the construction of the special law under which the obligation was incurred. By its provisions, the town was authorized in terms, “by a vote of a majority of its supervisors, or their successors in official trust, subject, etc., * * to create and issue its bonds” in the amount, and for the purposes therein named, “and to pledge — 418 — the faith of said town, or the municipal corporation which may succeed it, for the payment of the principal and interest of said bonds.” The second section provides for the submission to the voters of the town of the question whether the bonds shall be issued in aid of the contemplated enterprise, and for that purpose, “the said supervisors or their successors in official trust,” are authorized to call the requisite election. If the proposition so submitted is approved at such election, then “the said supervisors or their successors in official trust may make any and all such agreements as they may deem proper with said railway company for or relating to the disposal of the- said bonds, or the proceeds thereof, in aid of said railway.” Section 3 directs that “for the purpose of paying the principal and interest of said bonds, an annual tax shall be assessed and levied upon the taxable property of said town, sufficient to pay the interest, * * and when the principal * * * is about to become due, a sufficient amount to pay such principal,” and “the said supervisors” are authorized to apportion the payment of principal and interest upon such years as they may deem expedient, “or they may annually levy upon such taxable property, and cause to be set apart as a sinking-fund, such sums as, with the accrued interest thereon, shall amount to an equal proportion of the whole amount of bonds issued, which shall be .applied to the punctual payment of said bonds at maturity.” It also declares that “said taxes shall be levied and collected in the same manner as other taxes are levied and collected in said town, or the municipal corporation which shall succeed it.” These are all the provisions having any bearing upon the questions under consideration. From them it is obvious that the power to create and issue bonds, and make contracts in relation thereto with the railway company, was conferred solely upon the municipality then existing and recognized as a distinct legal entity, known by the corporate name of the town of Lake City. The bonds which were to be given were — 419 — its bonds. Their payment was to be provided for by á pledge -of its faith, or that of “the municipal corporation which might succeed it, ” and by an annual tax, to be imposed by it or such its successor, upon the taxable property in said town, sufficient to meet the obligations at maturity, or to create a sinking fund for that purpose. These are the only securities which were authorized to be pledged or given. They do not cover the right of taxation upon any property or persons outside the jurisdictional limits of the town or its legal successor at the time the tax may be assessed and levied, nor do they create any specific lien on any property in favor of the bonds. The act contains no provision against the reduction of the taxable .area of the town by the annexation of a portion of its territory to another town, or by its erection into another municipality, according as public exigency or convenience may, in the judgment of the legislature, require; nor is it provided, in case this undoubted legislative power is exercised, that the .•subjects of taxation that may thereby be withdrawn from the jurisdiction of the town shall remain liable to contribute proportionally to the payment of any tax that may be imposed for the purpose of paying the bonds. In the absence of any such provisions, there is no doubt that it was competent for the legislature, if, in its judgment, some public convenience or necessity demanded it, to erect a new municipal corporation out of portions of the town, and to that extent lessen the security of its creditors, without the violation of any of their •contract rights. Wade v. Richmond, 18 Gratt. 583. The bonds in this ease were authorized to be issued subject to the exercise of this power in the legislature, and hence no contract obligation has been impaired. The authority to tax all the subjects of taxation within the town, to the extent provided for in the act, still remains undisturbed. Whether, in case of an indebtedness contracted by a municipal body upon the faith and credit of a sufficient sinking-fund authorized to be created by taxation to meet it, it is within the constitutional power of the legislature to reduce — 420 — the territorial limits of the corporation to such an extent as-to render its taxing power to that end wholly inefficient and nugatory, need not to be considered at this time, because, upon the facts stated in the information and writ, the case before us presents no such question. The inability of the reduced town to sustain the taxation necessary to provide the-requisite sinking-fund contemplated by the act is not alleged, and, for aught that appears, it may be fast increasing in wealth and population, and abundantly able to meet its obligations at maturity. Such, at least, must be the presumption ; for, in the absence of an express showing to the contrary, it cannot be supposed that, in incorporating the city, the legislature intended to destroy or materially weaken the ability of the town to meet its liabilities, or that it acted upon, any other than legitimate public considerations. The words “their successors in official trust,” as used in-this statute of March 6,1868, mean “the successors in office” of the supervisors, including perhaps those who may succeed, them in their official duties, though under some different name. The phrase has no other significance. In no just sense can the city of Lake City be said to be a municipal corporation which has succeeded the town, for the latter still-exists as a distinct corporation, in the? enjoyment of all its municipal powers and franchises, though shorn of a portion of its territory. For these reasons, this court is constrained to hold that the relator has no claim whatever against the respondent city, either of a legal or equitable character, and the writ as to it must be quashed as having been improvidently granted. In view of this conclusion, it is only necessary to consider the remaining questions so far as they affect the toiyn of' Lake. After admitting the passage of the ordinance set forth in the writ as therein alleged, the return of the town proceeds as follows: “It (the town) alleges that before said ordinance was so passed by said supervisors as aforesaid, the said St. Paul & Chisago Railway Company, fraudulently and cor — 421 — ruptly, and for the purpose of inducing the then supervisors ■of said town to pass the same, promised and agreed to and with the said supervisors, that if they would pass the said ordinance as aforesaid, that it, the said St. Paul & Chicago Railway Company, would locate the depot of said company in said town of Lake City, on the private property of said supervisors; and represented to said supervisors that by reason of such location, the said property of said supervisors would be ■greatly enhanced in value; that said supervisors, induced and influenced by said fraudulent and corrupt promise and agreement, and by other and further fraudulent and corrupt considerations then paid and promised to said supervisors by said -company, passed the said ordinance; and said respondent, on its information and belief, alleges that the said supervisors would not have passed the same, but for the said fraudulent and corrupt promises and payment aforesaid.” “And respondent further alleges that said St. Paul & Chicago Railway Company, before the passage of said ordinance, and as an additional and further inducement to pass the same, and also to induce and influence the voters of said town to ratify said •ordinance, falsely and fraudulently represented that said company would build its engine-houses, car and machine-shops •in said town of Lake City, and thereby increase the property of said town liable to taxation, and its population, to a great •extent, which representations and promises were false and untrue, and only made for the purpose aforesaid. ” The motion of the relator is to strike out these portions of ■the return as irrelevant and redundant! There can be no doubt that the motion should be granted as to the last paragraph above quoted. It is not stated to whom the said alleged representations were made, whether to the supervisors, the voters, or in a general public way, without being specifically addressed to any one. Nor is it claimed that any •one was influenced by them, or acted on them. They related to no existing facts or condition of things, but were simply promissory in their character. No voter was justified in — 422 — placing any reliance upon their fulfilment, for the ordinance alone contained the terms and conditions of the contract between the town and the company, which he was called upon to approve or reject. The effect likely to be produced by building the engine-houses and car and machine-shops of the-company in the town, upon the value of property and increase of population, was a matter as fully within the knowledge and means of information of the citizens of the town as of the company, and it is not even averred that these buildings-were not erected with the results predicted. Clearly, the matter is immaterial and irrelevant in any view, and must be-stricken out. The question of striking out the other portions of the answer objected to, is, perhaps, not so free from doubt. The matter thus objected to is set up in attempted avoidance of the relator’s claim, by impugning the validity of the ordinance-upon which it rests. It does not seek to impeach the ordinance for any want of authority, or irregularity, in its passage, or for any inherent vice or illegality in any of its provisions, but because its passage was effected by means of a. corrupt collateral agreement between the railway company and the officers of the town who voted for it, whereby the-action of the latter in the premises was improperly influenced. Conceding such a defence to be good as against the railway company, it is insisted that it cannot avail as against the relator, because, acting in good faith upon the validity of the-ordinance, with no notice or knowledge of any vice or fact injuriously affecting it, it took an assignment of the claim against the town for the bonds, for a valuable consideration, and thereupon went on and completed the road for the benefit of the town, in accordance with the provisions of the ordinance, with no protest or objection, but with the silent acquiescence of the latter. It may be that the town, under such circumstances, would be estopped from interposing the ■alleged defence against the construction company, if, knowing423 these facts, or legally chargeable with notice thereof, it after-wards permitted the relator to go on and build the road, without taking any steps to rescind its agreement under the ordinance, or to notify the relator of its intention so to do, and without showing any legal excuse for its omission in that regard. But upon the allegations of the information and writ, and the return, it cannot be said that the relations existing between the town and the relator are of this character. It does not appear that the construction company was induced to enter into its contract with the railway company, or that it did anything thereunder, by reason of any belief or reliance placed upon the validity of the ordinance in question. It is only averred “that it became the owner of the claim and right against the town for the bonds, under an agreement between it and the railway company, by the terms of which the latter, in part consideration for building and equipping its said road, agreed to and did, by said contract, sell, transfer and assign to relator all gifts, donations, bounties, or aid which then had been, or might thereafter be made or given to it, including the bonds in question, and all claim, right or demand of the said railway company, to or for said bonds, against said town.” It cannot be assumed from this that the relator built the road or did anything by reason of any reliance placed upon the validity of the ordinance, or of the company’s claim against the town. Its undertaking was based solely, so far as appears, upon the agreement of the railway company, containing, among other considerations and stipulations, (not particularly named,) the assignment of its claim against the town. These other considerations and stipulations referred to may have been the controlling cause of its action and the agreement on its part. It does not appear that the town ever had any notice of this agreement, or that it ever knew that the construction company was building the road, or that it had become the owner of the claims in question. On the contrary, it is expressly stated by the relator, in its information and the writ founded — 424 — thereon, that the road was built and .completed by. the Saint Paul- & Chicago Railway Company, acting by and through the construction company, and'that all the conditions of the ordinance in respect to such construction were fulfilled and performed by the railway company, acting as aforesaid. Upon these facts the respondent is not precluded from interposing any defence it may have to the issuance of the bonds, by any principle of estoppel, for it has neither done nor refrained from doing, under circumstances requiring action, anything whereby the relator has been in the least prejudiced. The position of the relator, then, being at best only that of an innocent assignee for value, it holds the claim subject to all defences, legal or equitable, which existed against it in the hands of the assignor at the time of the assignment. This raises the question whether the alleged corrupt transactions and agreement between the railway company and the town supervisors, whereby, in consideration of the passage of the ordinance by the latter, the company promised and undertook to locate its depot in said town, upon their private property for their individual benefit, and which alone induced the passage of the ordinance, so. affected the rights of the company under it that its obligations are incapable of enforcement against the town in favor of the railway company. It is undoubtedly true, as contended by the relator, that the motives by which legislators are individually governed and influenced in the enactment of laws cannot properly be made the subject of judicial inquiry, for the purpose of defeating their operation, or any rights attempted to be asserted under them, (Dillon Mun. Corp. § 248, and authorities there cited,) and it may be conceded that a like rule prevails in considering the ordinances of municipal bodies, when they are of a strictly legislative character, as would be the case with ordinances relating solely to the good order and government of the municipality, and prescribing permanent or general rules and regulations in respect thereto. Dillon Mun. Corp. note to § 244. — 425 — ■ The ordinance in question, ■ however, is not one of this •character. It prescribes no rule or regulation of conduct or government, in the nature of a municipal law or ordinance in its strict and appropriate sense;, and its provisions pertain to no matter or subject coming within the scope of the general legislative authority conferred upon the town. It is rather in the nature of a contract between the town and the railway • company, entered into and executed on the part of the former, under and by virtue of a special statutory authority, a substantial compliance with which is necessary to give it validity. It may well be doubted whether the rule in question has any application, to such a case, though the decision of the question .is not deemed necessary upon the facts of this case. The real question before us is whether, upon the facts stated, the authority conferred by the statute in this instance has been exercised in such substantial compliance with its provisions, and under such circumstances, that the obligations of the contract evidenced by the ordinance can be enforced against the town, as between it and the company ? The statute provides in terms that the town “may, by a vote of a majority •of its supervisors, subject to the approval and ratification of its legal voters,” as therein provided, “create and issue its bonds,” to the amount named, and for the purpose indicated, .and “pledge its faith for their payment.” . The vote of the supervisors, and the ratification by the voters, are both essential to the creation of any valid obligation.against the town; neither is sufficient without the other; an approval by the •electors of a proposition submitted to them, without any prior favorable decision by the supervisors, would be a nullity and of no avail. It was the obvious purpose of these provisions to serve an & check upon any hasty and inconsiderate action, whereby the town might, under the influence of temporary excitement :and delusive expectations, be led to assume greater burdens ■of taxation and indebtedness than its taxable resources would be able to sustain; and in construing these provisions, it is — 426 — the clear duty of the courts to give effect, so far as possible,, to this legislative intent. The vote of the supervisors which', is provided for must, therefore, be regarded as something; more than a mere formality, to be observed by them simply in accordance with the letter of the statute, and without any reference to the interests of the town. The delegated authority conferred upon them was in the nature of a public official trust, the proper execution of which involved the performance of a duty to the town, for whose interests, and not their own, they were empowered to act. It required them in the first instance, before submitting to the electors any proposition for aid, to determine favorably the question whether, under the circumstances, the town ought to grant it; and this upon their own independent judgment and discretion, exercised honestly and in good faith for the benefit of the town, upon public considerations, and not for private purposes. A vote given upon. other considerations, or as the result of a decision reached in any other way, would not be within the meaning or intention of the statute. Especially, if it was induced by secret bribery and corruption, and rested solely upon considerations personally beneficial to the supervisors alone, as individuals, it would be in gross violation of their official duties under the statute, and in direct contravention of its purposes and policy. It • would operate as a fraud upon the town, and a deception upon its electors. Its effect would be to deprive the former of the benefits intended to be secured by the statute by the vote which its supervisors were authorized to give, which implies an honest exercise of judgment on their part, and a decision accordingly. Belying upon the integrity of such decision, the voters, in acting upon the question of ratification, would very likely approve a proposition which they would reject if informed that it had its inception alone in a secret and corrupt bargain between its officers and the company. If, then, as is substantially alleged in that portion of the-answer of the respondent town now Under consideration, the enactment of the ordinance in question was procured from the427 supervisors by the railroad company by corrupt means and influences, such as a secret understanding and agreement between them by which its depot and other buildings were to-be erected upon their private property, upon the promise or representation, and in the expectation, that the same would be thereby largely enhanced in value, and this was the sole consideration and .inducement for their vote, without which it would not have been given, its obligations cannot be enforced against the town at the suit of such company. The act of procuring the ordinance by such means was one of gross moral turpitude. The frequent acts of legislation giving to municipal bodies, conditionally and otherwise, the right to aid private corporations in the prosecution of public enterprises, make it a matter of public concern that such public officers as may be entrusted by the legislature with any duty and authority in respect thereto shall not be corruptly influenced in the discharge of their official duties by any party thus seeking municipal aid; and whenever, in the performance of any such duty, an act is done through the corrupt procurement of another, in plain violation of the officer’s duty, though apparently within the scope of his authority, public policy and the interest of morality forbid that the guilty procurer of such wrongful act shall reap any benefits therefrom, through the aid of the courts in enforcing the execution of a contract originating in the vicious transaction. For these reasons, the motion to strike out this portion of the answer should be denied. The claim of respondent in respect to its right to a trial of the issues of fact herein by a jury raises the same question which was presented and decided in Atherton v. Sherwood, 15 Minn. 221, and which was subsequently recognized as settled in Commissioners of Mille Lacs County v. Morrison, 22 Minn. 178. The provision in article 1, section 4, of our constitution, that “the right of trial by jury shall remain inviolate, and shall extend to all cases at law,” must be construed in connection with section 2, article 6, of the same instrument, which confers — 428 — ■upon this court “original jurisdiction in such remedial cases as may be prescribed by law,” coupled with the express prohibition, “that there shall be no trial by jury in said court.” 'This negatives any implication that the right to a jury trial can be enjoyed in the trial and determination of such remedial -eases as this court may be authorized to try, in the exercise of its jurisdiction under this latter section. A distinction is ■clearly made between the class of cases denominated, “cases ■at law,” in the former section, and that included under the designation of “remedial cases,” in the latter section. The former ■evidently refer to ordinary common-law actions, while the latter embrace those remedies of a special or extraordinary character, usually spoken of as special proceedings, in contradistinction from ordinary common-law actions, such as mandamus, quo ivawanto and other proceedings of a like special or -extraordinary character; as to these latter, we have no doubt it was not the intention of the framers of our constitution to apply the provisions of section 4, article 1. This conclusion is strengthened rather than weakened by the fact adverted to by respondents’ counsel, that at the time of the adoption of the constitution, the right to a jury trial was provided for in a proceeding by mandamus in this court, for it shows that the framers ■of that instrument must have had this practice in view when they expressly provided for the continuance of such original jurisdiction, but at the same time coupled with it an express prohibition against allowing a jury trial. The motion for a jury trial must, therefore, be denied, and a referee appointed ■to take testimony. Let an order be entered in conformity with the views herein-before expressed, quashing the writ as to the respondent, the city of Lake City, striking out and amending the answer of the other respondent so as to conform the same to this opinion, and referring the case to Hon. A. J. Edgerton, of Kasson, as sole referee, to take and report the testimony herein, or to such ■other person as may be agreed upon by the parties as such referee. Footnotes [*] Gilfillan, C. J., Raving been of counsel, did not sit in this case.