State ex rel. Simpson v. Haas

Lewis, J. Proceedings in quo warranto for the purpose of testing the right of respondent tó the office of assessor of Ramsey county. The sole question is whether IT. G. Haas, as president of the common council of the city of St. Paul, was a member of the appointing board, provided by chapter 90, Sp. Laws 1875, and had the right to participate in the appointment. From 1874 to 1891 the common council of St. Paul consisted of a single 'body composed of aldermen, and at the- first meeting in each yéar was required to elect from its members a president and vice president. By chapter 90, Sp. Laws-1875, entitled “An act in relation to assessments for taxes in the county of Ramsey,” it was provided that the chairman of the board of county commissioners (ex officio the mayor of the city), the county auditor, and the president of the common council, were constituted a hoard whose duty it was, [115] on'the tenth of If arch óf each alternative year, to- appoint a cóünty assessor for the term' of two years. By chapter 6, Sp. Laws 1891 (known as the Bell’charter), the single body theretofore known-as the common council -was abrogated, and there were substituted in its place two separate legislative branches, one designated the -board’ of aider-men,- and the other- the assembly,' each to meet separately, and each to elect its own presiding officer. These two bodies met in joint session for special purposes, and were designated as the common council of the city of St. Paul; but the’ law contained no provision for the election of a president of the common council. ' It- did, -however, provide that the president of the assembly should,’ex officio,, thereafter exercise certain duties and powers formerly imposed upon the president of the common council. In 1900 the city adopted the so-called “home rule charter,” which contained the dual form of government, and provided that the common council, acting in joint session, elect a president and a vice president. The purposes for which the common council shall sitan joint session are enumerated, and' consist of the election of certain city officers, receiving bids for printing, and canvassing the returns of election, and some other matters, but no legislative functions are vested in this body acting jointly. The president is vested with the power of calling special meetings of the joint body, and is the acting mayor in case.of absence or inability of the mayor. This charter includes the provision that the president of the common council, together with the county auditor, and the chairman of the board’ of county commissioners, shall appoint the assessor, as provided by the act of 1875. The office of president of the common council, as created by the charter of 1874, was abolished by chapter 6, Sp. Laws 1891. State v. Johnstone, 61 Minn. 56, 63 N. W. 176. Under the old charter the president of the common council was the presiding officer of a single legislative body; whereas, under the so-called Bell charter, the two branches of the common council sitting jointly were not, strictly speaking, engaged in actual legislation. No doubt this distinction was given considerable weight in the Johnstone case, bait it was probably not the controlling feature. Under the dual system of government, each body elected its own presiding officer, and the president [116] of the assembly was ex officio president of the common council when sitting in joint session. We are not disposed to question the conclusion reached by the court in that case, but the reasoning should not be extended and applied to the home rule charter. Although the general features of a dual body for legislative purposes were retained in the home rule charter, a number of changes were made with reference to the joint action of the two branches when not engaged in strictly legislative business. Under the charter of 1874 the common council, acting as one body, were judges of the election of its own members, elected a city clerk, appointed and removed certain officers, elected a city printer, and elected members to represent the city on the board of equalization, and at the first meeting in each year a president and a vice president thereof were elected. The Bell charter repealed the last provision, and the duties of the presiding officer of the joint body devolved upon the president of tire assembly. This was a radical change, for, as held in the Johnstone ease, it amounted to an abolition of the office of president of the common council. But another radical change was effected in 1900. The main features of the Bell charter were retained, the common council consisting of two branches each having its president and sitting in joint session for special purposes only; but the office of president of the common council was restored. Section 4, c. 4, Charter of 1900, reads: “On the first Tuesday of June, or as soon thereafter as practicable, each body of the common council shall proceed to elect by ballot, from its own body, a president and vice president, and the common council acting in joint session shall elect a president and vice president. Each of said presidents shall preside over the meetings of the body from which he is elected. * * * ” It was also provided (section 5) that: “During the absence of. the mayor from the city, or in case of his death, inability or incapacity for any reason to discharge the duties of his office, the president of the common council shall exercise all the powers and discharge all the duties of the mayor, and shall be styled acting mayor of St. Paul.” The office of president of the common council is specifically created, the duties designated, and it is clear that it was the intention to restore the office. True, the joint body over which that officer presides does [117] not engage in legislation, strictly speaking; but, so far as the application of the act of 1875 is concerned, we believe that fact is not important. The duties of the office and of the joint body may be changed, without obliterating the office of president. It is hardly reasonable that the president of the common council was designated in the 1875 act as a member of the appointing board simply because of the nature of his duties, or because the body over which that officer presided was vested with legislative power. Any other city official might have been designated, but presumably the president of the council was selected, for the reason that the position was of some prominence. We are of opinion that the office of president of the common council, as contemplated by the act of 1875, was restored by the home rule charter. The next question is whether the act of 1875 became self-operative upon the restoration of that office, so that, without any other legislative expression, the president was authorized to participate in the appointment of an assessor. Section 1, c. 17, of the home rule charter, contained the provision that the chairman of the county commissioners, and the county auditor, together with the president of the common council should constitute a board of appointment for the purpose of appointing an assessor, and it has been suggested that this was sufficient to set the act of 1875 in motion. If such was the purpose of introducing this provision, it is attacked upon the ground that it is special legislation and prohibited by the constitution. Whatever may have been the purpose of inserting this provision in the home rule charter, it certainly could not have had the effect of creating the appointing board, nor of amending the act of 1875. State v. Johnstone, supra. While the office of president of the common council existed, that officer, by virtue of his office, was a member of the appointing board. During the interregnum of the Bell charter, the act of 1875 was not repealed or amended, but was in full force and effect, except that there was no president of the common council to participate as a member of the appointing board. Upon the recreation of that office, however, the 1875 act became self-operating without any other legislative act. There are probably no authorities directly in point. Certain anal [118] ogies illustrate the principle which controls. For instance, a general law becomes self-operating which had been superseded by temporary special legislation. Pushor v. Village of Morris, 53 Minn. 325, 55 N. W. 143; Heinssen v. State, 14 Colo. 228, 23 Pac. 995. A special act, creating an office with a salary, is only in suspense during the time the salary is provided for by the general appropriation act. State v. Burdick, 4 Wyo. 272, 33 Pac. 125, 24 L.R.A. 266. The 1875 act, was not in complete suspension; but it could not become effective as to the president of the common council for the reason that there was no such officer. The result was the same as though the common council had, for some reason, failed to elect a president for- one year, or longer, or if, for any reason, .the president had been unable to attend the meetings of the appointing board. Affirmed.