St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1894-05-11
OF COURSE, OF COURSE /!
7Hs ATTORNEY GENERAL GIVES
REPUBLICAN, OPINION
AT CITY ATTORNEYS REQ UEsr

Something's Asks an ODin-
ion on tho Assembly Question
in Advance OF Being Asked for
One by the Assembiy-Thc Re.
ply Made to Suit Republicans
Administrative BODIES Not in
the Habit OF Raising Constitu-
tional Questions.
ATTORNEY GENERALS OFFICE, ST.
PAUL. May 10. ls94.-Leon L. Chamber
lain, ESQ. Corporation Attorney, st.
Paul, Minn.-Dear Sir: In your COM
munication of the 7th inst. you call at
tenlion to provision of the city-charter
Of st. Paul prescribing the territory
from which the respective assemblymen
OF the city shall be selected.and Inquire.
in effect, whether it shall be observed
by the board of canvassers in determln-
ing the election OF candidates TO the as
sembly.
In replying to your inquiry. attention
is called at the outset to section 7.article
Z, of the state constitution. which reads
as follows:
''Sec. z. Eligibility to Office. Every
person who, by the provisions of this
article, shall be entitled to vote at any
election, shall be eligible to any office
which now is or hereafter shall be
elective by the people in the district
wherein he shall have resided thirty
days previous to such election, except
as otherwise provided In this cOnstitu-
ton. or the constitution and laws of the
United States"
So far as material, your city charter
provides that "the members of the
assembly shall be elected at large from
the body of the electors of said city,
and four of same shall reside east of
Wabasha and Rice streets and north of
the Mississippi river. and four shall
reside west of Wabasha and Rice streets
and north of the Mississippi river. and
one shall reside in the Sixth ward OF
said city," State Laws 1891, Che, sec. ~
1t is elementary that the legislature
cannot impose upon an elector quaifi-
cations for Office not contemplated by
the constitution. The supreme court
of this state in the case of State VS..
Clough, 90 Mimi. II, referring to the
provision of the constitution above
quoted, say that nothing can be added
to or taken from it. There is line of
decisions supporting legislation re-
curing such conditions as that in
cumbents shall be skilled in the duties
incident TO their respective offices,
or that they be selected from po-
litical parties. or that in their selec-
ton honorably discharged soldiers shall
be preferred. 1t was recently held by
by our own supreme court that statute
requiring an inspector of buildings 10
Estate vs.. S.arkeY, 40 MINI. SOB. This
view is not. however, universally sup
ported. Atty. Gen. VS.. Bid. of Council
men, So Mich. 213 And, wherever OBJ
tanning. it is enunciated. SO far as my
examination of authorities extends, to
appuintiye officers. In this State the
legislature undoubtedly enjoys unlim-
tied freedom in determining the rea-
sonable qualifications of appuintive Off
GERS. as they do not tall within purview
of the constitution.
If the provision of your city charter
is invalid it is so because in attempting
to classify assemblyinen according to
geographical lines, it adds condition
to eligibility in violation of provision
of the constitution to which attention
has been called. 1t will be conceded
everywhere that the city of st. Paul is
district" within the meaning OF that
provision. 1t is therefore manifest that
any office which is elective by the peo-
pie" therein; and whatever abridges
this right, whether it consist of educa-
tional qualifications or otherwise, Of
tends against the constitution and is
void. Estate VS.. Clough, supra)
So long as an assemblyman Is
elected by the people of the
city at large, their choice can
not he trammeled by legislative pro-
vision defining the territory from which
he shall be selected. 1t Is foreign to
the purpose of the constitution that a
voter shall be compelled to ascertain
the street and number OF candidate be-
fore being prepared to vote intelllgently.
If the legislature may impose such con-
ditions in tine election of an assembly
man, it is difficult 10 perceive why it
may not. with equal authority, provide
that the mayor shall be selected from a
given ward.
The provision of your charter is, be-
lieyp, all anomaly III legislation. 1t is
doubtful if all attempt has ever before
been made to thus restrict an elector
touching his eligibility for an Office, or
his right of choice of candidates for
Office in his district.
For The reasons above expressed not
to speak of others which have suggested
themselves, the statute is, ill my juJg-
ment, invalid.
While entertaining such views, per-
mit me to suggest that all occasion
rarely arises where an administrative
body is justified in questioning the
constitutionality of law prescribed
for their guidance. AS general rule.
and save only III cases where a statute
is clearly and palpably unconstitutional,
it should be observed until pronounced
invalid by the courts. Whether an
leave it for you and the canyasSing
board to determine.
You further inquire whether the vote
of all election precinct can he counted
or canvassed when the judges of cleo
ton have failed to make return of the
number of votes cast in the precinct,
but have transmitted only the tally
sheets.
While it is the general rule that the
statute must be substantially complied
with i'll making all election return in
order 10 authorize canvassing board to
receive 1t, it has little if any force in
this state in view of the provisions Of
our election law. Section 163 thereof is
as follows:
mo canvassing board of any county,
town. city or village shall refuse to in
clude any returns in its canvass of votes
on account of any informality in hold
ing any election or making returns
thereof, but all returns shall be re-
ceived and the votes canvassed by such
canvassing board and included III its
statements, provided there is SUBJ
stan,ial compliance with the provisions
of this act"
This section read in connection with
several of tile immediate preceding sec
lions affords no room for doubt that
your second question should be an
swered i'll the affirmative. provided the
facts indicate that there has Deen sub
stantial compliance with the require
ments of the law. Lam, very respect
nj