State ex rel. Dowdall v. Dahl

COLLINS, J. The short facts are that Dahl was elected a member of the legislature of this state at the general election held in November, 1896. He qualified, and acted during the session of that body. By virtue of the special act of legislature referred to in the brief of the applicant, to wit, Sp. Laws 1891, c. 370, Dahl was appointed, after the adjournment of the session of the legislature, on May 1, 1897, by Hon. Seagrave Smith, one of the judges of the district court of Hennepin county, as his official court stenographer, took the oath to discharge his duties, and has ever since been acting in such capacity. Dowdall, the petitioner, is a resident, freeholder, and taxpayer of the county of Hennepin. He does not claim to have any right to, or to be qualified to hold, the position which Dahl now holds, if he is required to vacate it. May 3, 1897, Dowdall filed with the attorney general of the state of Minnesota a petition requesting that officer to procure from the supreme court of this state an information in the nature of quo warranto for the purpose of testing the right by which said Dahl held and exercised the position of official stenographic court reporter. A copy of this petition is attached to the moving papers herein, and also a copy of the opinion and decision of the attorney general, in which he refused the request so made. Upon such refusal said Dowdall comes to this court, and asks in his petition that he may become a relator in an information to be filed whereby proceedings in the nature of quo warranto may be taken to test Dahl’s right to hold the appointment and serve as court stenographer during the two-years term for which he was elected to the legislature. Counsel for Dahl contend that the position of court stenographer is not an “office,” within the meaning of article 4, § 9, of the state constitution, wherein it is provided that “no senator or representative shall, during the time for which he was elected, hold any office under the authority of the United States, or the state of Minnesota, except that of postmaster,” a provision which has recently been construed. State v. Sutton, 63 Minn. 147, 65 N. W. 262. As our decision is put upon other grounds, we need not pass upon this contention, although we shall have occasion later on to refer to the act under which the appointment was made, and also to the duties devolving upon an appointee under that act. [112] The power conferred upon this court to permit the filing of informations in the nature of quo warranto is found in G. S. 1894, § 4823, and the proceeding here is not the action provided for in chapter 79, § 5963. In the absence of legislation- or any controlling consideration to the contrary, this proceeding is governed, as respects procedure, by the common-law rule. State v. Sharp, 27 Minn. 38, 6 N. W. 408. It was also held in that case, where an attempt was made to have the court overrule the determination of the attorney general to proceed, that it was for him, as the representative of the people, to determine whether the public good required the commencement of such a proceeding. If, said the court, the attorney general deems it best to proceed, it would be a very extraordinary case, if any, in which his determination would be overruled. This language may be somewhat broad, and the converse of the statement may not be true, but it clearly shows the views of the court as to the weight which should be given to the determination of the attorney general when application is made to him for the use of his name in this form of procedure. In the case of Barnum v. Gilman, 27 Minn. 466, 8 N. W. 375, — it being an application for leave, upon the refusal of the attorney general to file an information for a quo warranto to inquire into and to determine the defendant’s right to hold an elective office, —it was held that a quo warranto would not be issued without the consent of the attorney general upon'the information of a private party, having no personal interest in the question distinct from the public, to test the right of an incumbent to hold a public office. In Taylor v. Sullivan, 45 Minn. 309, 47 N. W. 802, the correctness of this decision seems to have been conceded. And in State v. Tracy, 48 Minn. 497, 51 N. W. 613, — an information against a pretended municipal corporation for the usurpation of corporate franchises, and to oust it from the exercise of corporate privileges,- — the rule stated in the Gilman case was recognized and applied. So it would seem that if the rule referred to is applicable in all cases in the nature of quo warranto, and is not to be deviated from under any circumstances, the petitioner cannot be permitted to file an information. He has no personal interest in the question distinct from the public. He is simply a taxpayer in the county, is not a stenographer, has not and could not have any claim to the place [113] himself. The attorney general has refused his consent to the institution of the proceeding, and, if his refusal is conclusive, that would end the matter. If this be so, there could not be, in the nature of things, any person who would be permitted to file an information as ágainst an appointee to a public office, without the consent of the attorney general, the result being anomalous, in that, if the office were elective, a private party personally interested might proceed in the absence of consent, but, if it were appointive, the matter would be wholly within the control of the law officer of the state. No person could show that if an incumbent of any certain appointive office was found ineligible, and, for that reason, ousted from the place, he would be entitled to or would become a successor. We do not now question the correctness of the decision in Barnum v. Gilman — and it is supported by any number of adjudicated cases — as the rule was applied to the facts there presented, but we are not ready to hold that it is applicable here, where the officer, if Dahl be an officer, is appointed, instead of elected, and where it would be impossible for another party to show that he had a personal interest in the question to be decided distinct from the public. In fact, we are of the opinion that this court has the right, and that under some circumstances it may, in the exercise of a sound judicial discretion, become its duty, to permit an information in the nature of quo warranto to be filed by a private person (having no personal interest in the question distinct from the public) to test the right of an incumbent of a public office to hold the same, notwithstanding the attorney general has refused to give his consent to such filing. But the granting or withholding of leave to file an information at the instance of a private person rests in the sound discretion of the court, and is not a matter of strict legal right. When the attorney general has refused to give his consent, the case should be exceptional, and one in which it clearly appears that the public interests require it, to justify the court in overruling his judgment. The law under which Dahl received his appointment (Sp. Laws 1891, c. 370) places the appointment of a reporter, to serve at the pleasure of the judge making the appointment, in the hands of each of the judges of the district court for Hennepin county. His duties [114] are prescribed by the law. Not only is he to take stenographic notes of all trials and proceedings had before the judge appointing, when directed so to do, but he is to act in the capacity of private secretary to the same judge. A mere glance at the law, and a slight knowledge of the duties to be performed thereunder, will suggest the personal relations which must necessarily exist between the judge and the appointee, and to what extent the personal views of the former should be allowed to control when once he has made a selection, and has named his reporter. While the appointee takes an oath, and in part is paid for his services out of the county treasury, he exercises no official authority. He merely records the court proceedings, but his records are not conclusive. They are subject to correction by the court itself. The position is distinctly clerical. Intimate personal relations of a confidential character and a close association must necessarily exist between the judge making an appointment and the person he appoints for a term dependent upon his pleasure; a person in whose ability and integrity he must have implicit confidence. These facts, and the further fact that the petitioner asserts no invasion of his personal rights, (is simply attempting to oust Dahl because he conceives that the law will permit him so to do,) lead us to conclude that this is a case where, in the exercise of a sound judicial discretion, we ought not to grant the petitioner leave to file the information. Order to show cause discharged.