Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-06-25
SUPREME COURT.
DECISION OF CASE FILED YEsTER-
DAY,

DAY.
zAe State Of Minnesota e1 rel. John Thompson
as. the Common Council of the City of st.
Paul.
OPINION.
Chapter 81, Laws 1876, enacts that at each
annual election in the city Of st. Paul. one
school inspector shall be elected in each 'alder-
manic" district, and that the inspectors thus
elected shall together constitute the board of
education. To this board the entire control
and management of the public schools of the
city is committed. The main question in this
case is, by whom are the votes cast for the in
spectors to be canvassed. There is no provis-
ion of statute expressly providing for any can
vass of the votes cast tor any city
officer. There is Of course, then, no provision
of statute expressly prescribing how or by
whom canvass shall be MADE. The whole
subject of canvass is left to implication. That
it could have been the design of the legislature
to authorize elections of officers as important
as these to whom the care Of the public schools
is committed without intending that there
should be some way in which the result Of the
elections could be authoritively ascertained
and declared is simply uncomfortable. Moth
ing short of absolute logical necessity would
warrant the conclusion that any such
farce such election could have
been contemplated by the legislature
to prevent the purpose of the law from being
utterly defeated. 1t therefore becomes the duty
of the court diligently to inquire whether some
implication cannot be drawn from the statute
which will meet the necessities of the case.
In prosecuting this inquiry it is at the outset
0hSorVahlo that hv h.cha q nf the cltv
charter Oh. lisp. laws 1919 general control
of the machinery Of city elections is committed
to the common council. For instance, the
council is authorized to establish and alter cleo
ton districts; to designate the places where
elections shall be held, to give notice of the
times and places Of holding elections and of
the officers to be elected, to appoint the judges
of election, to fill vacancies in the places of
such judges, and to order new elections to be
held in case the people fail to elect on the day
designated by law. Section S. of sub. CHI. 2,
provides that where two or more persons shall
receive an equal number Of votes for the same
Office, the election shall be determined by the
council, at such time, and in such manner as
they .1 shall d iSss This shall pr0vis
some way be ascertained that two or more
persons have received an equal number Of
votes for the same office, and that this fact
shall in some way be brought to the knowledge
of the common council. Now as no person mol
any other body is authorized to make canvass
the council cannot ascertain that any two o.
more persons have received the equal number
of votes spoken of unless it makes canvass
itself, or one is made under its direction; AND
therefore without such canvass the council
cannot perform the duty imposed upon it by
law Of experimenting and directing the
casting of lots. It seems to us that
so a. fro od tho hash tha-
the canvassing of votes cast at elections is t.
b. done by or under the direction of the com
mon council. Indeed, the implication that i
is to be so done, is we'll nigh irresistible. It il
SO entirely consistent and in keeping with tn
provisions before cited, committing the gener
al control of the machinery of elections to tn
common council, as to appear to form an ap
pro pirate aad necessary part of a genera
scheme. 1t is also in harmony with othe
provisions of the charter relating to elections
For instance, section of sub-chapter re
quires the returns of all city elections to b
made to the city clerk. By section 8, sub
chapter 4, the city clerk, who is elected by tn
council, is required to keep all papers an
records of the city, and to attend the meeting
of the common council and keep record 0
the proceedings. With reference analogous O
our general statutory law respecting the can
vassing of votes cast at elections the word ire
turns" is entitled to be taken as meanin
an official statement of votes cast a
an election transmitted to some au
thorized custodian for the purpose of bein
canvassed by some proper authority. The cit.
clerk has no sem blance of authority to canvass
His duties are largely those of a clerk of tn
common council, whose business it is to atten
their meetings for the purpose, not of proceed
ing himself, but of recording their proceedings
1t may, therefore, fairly be presumed that th
returns are required to be sent to him as cler
f1oo {1off no1y,,
be within the reach of that body, and that
| may take such action upon them as
necessary, aud as the law permits
Irrespective of these particular provisions 9
statute, we think that the following genera
considerations 60 to show the reasonableness Q
the position that the council possess authorit
| to make the canvass or to direct it to be made
Here is a duty necessary to be performed b
| somebody. It is duty which can be performe
| by the common council appropriately as b
] any other department of the city government
or any other tribunal as it is duty no
| specifically assigned to anybody, it is part of
general residuum of power. In the case Of
power falls naturally and reasonably to til
| common council representing more than an
other branch Of the municipality.
| This is upon q principle analogous to tina
upon which under our system of government
as well as that of England, the residuum {
power rests with the legislature as the repre-
sentative Of the people or nation. Upon tn
whole then. our conclusion is that the canvas
of votes cast at the city election for school il
spectors as we'll as the canvass Of votes cast fc
other city officers is properly made by the con
mon council. It is proper to add that TIL
conclusion is in accordance with lon
| standing usage, as counsel informs u
it has been the unvarying practice {
the common council to canvass the votes Gas
at city elections for many years, and probabl
ever since the organization of the city, an
| accordingly among the rules of its own pre-
ceeedings. adopted by the council, is whic
has been in force ever since 1869 Of not eve
since 1869 and which among other thing
provides that the following shall be the sixt
order of business viz: New business en-
bracing resolutions and then matters offere
| for the consideration Of the council, provided
that the canvassing of the returns of the mum
ipal elections, the election and appoin
ment of officers, and the al
pointment Of standing committee
| shall supersede all other business We al
further Of opinion that the duties of IL
council in making such canvass are pure
ministerial. In the absence Of some statutol
provision to the contrary 1t is to be assume
that the analogies of our statute law in refe
ence to similar canvasses are in this respect fo
lowed and preserved in reference to this cal
vass. Indeed it may be doubted whether an
other than ministerial canvass would NJ
! (without express statutory authority
be held bad for its inconsistency wit
the general spirit and policy of our statute la
relating to the canvassing of votes cast at a
election. That the canvassing of votes cast
general elections in this State is purely mil
isterial duty was determined in O'Ferrall "
| Colby, 2 MINI, 18O. 1t follows that the WI
of certiorari allowed in this case must
quashed, since writs of that character do NJ
lie to review ministerial acts or proceeding
Sinclair vs.. B. Cones, Winona county,
Mimi, 404. We might perhaps ha,
disposed of this case, proceeding upo
the basis that if the common counc
had no authority whatever in the matter
canvassing the votes. their acts in SO doin
would be upon their face such utter nullitie