St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1893-01-07
Judge Kerr Renders a De-
cision Of Importance to e
st. Paul. -,
Clerk Prendergast's Record
of Council Proceedings Is
Unassailable.
Text Of the Learned Judges
Memorandum Regarding
'4e.;4 the Points.
A Plaintive Plea of Uninten-
tional Wrong Saves a Girl
.. -. From Prison.

David ]. Hennessy does not prevail III
his mandamus proceeding against
= Thomas A. Prendergast as city clerk is
the effect of a decision filed by Judge
Kerr yesterday, This decision IS i'm
portant to the city, as an adverse mold
ing would have wooded the entire as
sessment for the improvement of East
Third street. si3
The scope of the application made by
Hepnessy was. to set aside the passage
Of. the ordinance by which the Third
street Improvement Was ordered. Hen
messy claimedgfthat the votes OF mem
bers OF council Whodid not vote audibly
in the affirmative were to be recorded
as negative as provided by the Bell
charter. and asked for a correction of
the minutes of cornell on this ordl-
nance. The court refused to grant the
application, and dismissed the applica-
ton OF Hennessy for an order to show
cause why mandamus should not issue.
Judge Kerr's Views.
In memorandum Judge Kerr says:
"There are two points faulty of espe-
cial note. First, the claim under the Bell
charter that votes must be countea III
the negative unless given III a tone
plainly understood by the presiding
officer must be construed literally. III
| is claimed that member cannot lndl-
cate his vote in the affirmative except
bv word OF mouth, SO loud that the pre-
siding officer may hear it. The absurd
| ity OF this proposition is shown by the
example OF Inc mDer who might tenn
| p0rarrly loose his voice, as often nap
| pens in this climate. In such case the
| inference is that he must stay away
| from council, or DE counted as voting III
| the negative-if the contention oil plain
| tiff prevails-no matter how much he
| desires to vote in the affirmative, and sc
| expresses his desire as we'll as he can
| If a member should lose his voice he
must resign, and Il dumb man could MOI
serve il the contention OF the pialntlfl
| shall prevail.
The second contention is that after
vote has been taken and publicly all
| nounced, entered of record and atteSteo
as true, it is not open to Impeachment
| by citizen coliaterally effected there
! by upon the evidence OF outsiders Wh(
were present and willing to testify tina
members voted otherwise than show!
by the records. wish l were as wei
satisfied Of this as legal proposition
without further legislation, as 1 am O
the good results which would follow 1T
adoption as rule.
THE common council has within thu
past ten years instituted and carried GU
proceedings etfecting private property
rights to the extent of millions OF dol
lars. If the record is to be simply
prima facie evidence, all citizens inter
ested as onlookers may lmpeach TIT
records by mandamus, OF discredlt thu
evidence as shown by the record. Ih'
safe way for all concerned is to have
the record conclusive except in case o
fraud. AS the law stands the record L
at least such evidence as should D'
overcome if at all, only by clear an(
convincing proof. amounting almost u
absolute certainty"