St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1889-11-09
SARCASM AND LAW
Mingled in the Corporation Attor-
ney's Opinion of the Carpenter
Park Case.

MIuSicu III tic OOrpOrdtiOu hteof
ney's Opinion of the Carpenter
Park Case.
There is evidently difference of
opinion between Corporation Attorney
Holman and City Comptroller Roche as
to the latter gentleman's functional du-
ties as watch dog of the city treasury"
Mandamas proceedings will probably be
next in order to settle the question In
dispute. Mr.. Roche says the Carpen-
ter park assessment is ii egal and
that he has the power to prevent
it's collection. Mr.. Holman holds
that such is not the case, and that Mr..
Roche must attach his signature to any
warrant whenever the board says he
shall. particularly when the corporation
attorney says that such assessment is
legal. The following opinion, laid be-
fore the board of public works yester-
day by the city attorney, explains itself,
and fOreShadowS the line of procedure
that will be resOrted to to settle the i'm
broglio:
Gentlemen: In response to your request for
my opinion on the legality of the refusal OF
the city comptroller to sign the warrant for
the collection Of the Carpenter park assess
ment, [ submit the following: The hoard OF
park commissioners having designated GER
tain lands for this park directed you to pro
coed to make the assessment of damages and
benefits This was done in the manner pro-
vided by law, and In levying the assessment
of benefits you deemed 1t proper to allow
certain Offsets for land donated to the city
for part of this park. Both Gen. Cole, the
attorney OF the PARK commission, ana myself
are of the opinion that under our charter
you have the discretionary power. of
allowing ofisets in cases where land
has been donated for improvements OF
this character, and we so advised you.
When the assessment was completed the
warrant for its collection was issued, signed
by the mayor and the clerk of your board and
delivered to the comptroller for his sigma
ture; he declined to sign for the reasons set
forth in his communication.
Section 81 OF title l of chapter of the
Special Laws of 1887 provides: when any
special assessment shall have been confirmed
it shall be The duty of the clerk of the board
of public works to issue warrant for the
collection thereof. which shall be under the
seal of said board, and signed by the mayor,
comptroller and clerk of said board"
Section 81 OF the same title provides: "All
warrants for the collection OF special assess
ments shall be delivered by the comptroller
to the city treasurer within five days there
after taking his receipt therefor"
These provisions of our charter clearly
impose upon the comptroller the duty OF
signing thlSWarrant and delivering 10 10 The
city treasurer within the time prescribed, and
volyed no element of discretion and no ex-
ercise of official Judgment. The duty OF the
com ptroller in this respect is of the same
character as that of the mayor and the clerk
of the board. If one has the right OF exer-
cising discretion in signing the warrant, then
the others have the same right, and If ell
have this right. and that too, without APP
peal from their judgment, then 1t would
seem useless to burden our courts with the
determination Of the legality of assessment
proceedings.
You have also requested me to suggest the
proper remedy for compelling the comp
troller to sign this warrant
Under Section of Chapter 2 OF the Special
Laws of 1874, charges may be preferred
against an elective officer for refusal to
perform such duties as are prescribed by law;
the common council has the power to fix the
time and place for the trial OF the officers.
and to hear and determine the case.
1 cannot recommend this proceeding, for
do not for moment believe that the comp
trotler is Influenced by any improper motives
In declining to perform this duty; his action
seems to be founded upon an unfortunate
aud ever-occurring misconception OF the ex-
tent of the power of his office.
Section SO of Title l of Chapter Of the
Special Laws of 1887. provides: ANY city
treasurer or other officer who shall in any
case refuse or knowingly neglect to perform
any duty enjoined upon him by this
chapter (assessments) whereby
any proceeding required by this
shall for every such neglect or refusal, be
liable to said city, individually, and upon his
official bond, for double the amount of loss
or damage caused by such neglect or refusal,
to be recovered in an action IN any court
having jurisdiction of the amout thereof"
Where q public officer refuses to perform
ministerial duty prescribed by law. the rem
edy usually resorted TO is that OF mandamus.
When this action is instituted against one of
its officers, il seems the city cannot become
the relator: but some citizen, who is inte-
rested in the result of the litigation, may be-
come proper relator.
Your board having performed its duties as
required by law, l would suggest that the
communication of the comptroller be re-
ferred to the park commissioners, it having
designated the land for this park and Gi-
Iected you to make the assessment.