New Ulm weekly review. [volume] (New Ulm, Minn.) 1878-1892, 1880-07-14
GRAND
Opening Concert
BY THE GREAT <'ORCHESTRION''
Music Of st. Paul.
at
UNION HALL,
Sunday, July 18th, 1880.
Concert commences at 8 a. M. to IL
m. ADMISSION FREE.
UNION HALL,
Sunday, July 18th, Il

BROWN COUNTY.
The State of Minnesota,
ex rel.
Henry A. Subilia and
John Bellm, &C.,
vs..
City Counsel, New Ulm.
This is an application for a perem-
tory writ of mandamus founded upon
an alternative writ and order issued
May 81, 1880.
The application was argued before
the court at last special term Of said
court, Messrs. Ladd & Stone for rela-
tors, George kaufman ESQ. for respon-
dent
take the opportunity to ackn0Wl-
edge my Indebtedness to the respon-
dents council for the very able anc
exhaustive brief furnished, and my
great doubts as to the correctness of
the conclusions reached.
It is admitted that certain lots in
the plat of the now City of New Ulm
were transferred by the corpOratOrs of
the town, the German andAssociatlon
to the town in trust, including the prop
erty in dispute, to be sold for the inn
provement of certain public grounds
by the corporation, to the highest bid
der at public auction, upon a vote of
the qualified electors of such municipal
corporation to such effect being had,
and that in the case at bar such vote
has been had. but the city refuses to
sell as directed by the terms of said
grant directed.
And it is further admitted that with
out regarding the terms of said trust,
tho City corporation had executed to
REALTORS an absolute deed in fee, with
out having caused said property to be
offered for sale at auction as 10y the
terms of said trust declared, and that
hereunder the REALTORS have improved
said property to the amount of $3.50, 900
or Whereabouts.
IH0LD said deed to be null and void,
ultra vires Dill. M. G. 447--450.
HOLD that the terms of said trust
must be strictly complied with, as to
the conditions Of disposal.
I HOLD that when the charter of
corporation or the General Statutes in
force, imposes duty by fair and rea-
sonable construction or implication and
there is no specific or adequate RENE
dy the writ of mandamus will lie. Opin.
ion of Berry J. in State ex rel. v. S.
M. r. Is MINI. 40, citing Red. on II.
644 &c.
IHoLD there is no remedy, adequate
or specific, at law in this case, save by
mandamus. A & A Corp. Sec. 707.
IHOLD the trust is not extinguished
s Conn. 1872 Cow. 246. The merger
also must be co.extensive &C., W. r.
p. 203, 8 Conn. 453.
HOLD this not to be tho enforcement
OF private contract, but one the d.
rect result of the official standing of
the respondents, and liability arises
hereunder by virtue Of the statute G.
S. 833--2S Am. 446.
think the fair intent Of the trust
deed is, that when the citizens, elect
OTIS, voted to dispose Of a lot, it was the
intent of the grantors that the trustees
execute the trust and proceed to sell
as directed.
The questions of REALTORS private bar
gains is not in issue before me, / think,
but that in expanding the large amount
expended in erecting their mill $780,
O0O) they are in equity, justice and
good conscience entitled to good title
if one can be made. / am satisfied,
and this disposes of all question of pay
ment, for until sale there is nothing
due therefore, and whether any other
arrangement as to payment can be en-
forced I am not prepared to say as
that involves 4 simple question of con-
tract liability.
No reference IS made, in respon.
dents brief, to the fact that some of
the lots in question were not of the
size directed by the grantors, but were
larger.
This is a very difficult feature of the
case, and, if it were not for the fact OF
total ignorance us to whether this was
done under the eye of the grantor with
knowledge and consent, perhaps it
might well prove fatal to the interest
of the REALTORS; but as no point is rails
cd upon the final argument upon brief
l will no further consider it.
lam of the opinion the writ should
issue, and it is SO ordered, but without
costs to either party.
Done Chambers this 9Th day of
July, 1880. E. ST. JULIEN Cox.
Judge 9th District.