The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1897-06-24


certain people in Office are obnoxious
to the people in general. In regard to
the plea that the office of court stenog-
rapher is a confidential one, and for
that reason the selection should be left
wholly to the judge, taking it out from
the domain of public offices, Justice
Buck says there is no reason for any
such confidential relations. The court
stenographer is a sworn public officer,
and his official acts should be puhllc
He has no right to make anything else
than a public record, and the taxpayers
| be allowed a voice in naming the SER
wants whom they are taxed to pay.
The dissenting opinion of Justice
| Canty is not so mild as that of Justice
| Buck, by about 80 degrees. He says
| among other things:
II cannot concur. There is too much
| temporiZing and doubling. Either" he
says. 1.-The office of court stenographer IS
| a public office, or it is not public Of
! flee. If it is a public office, then under
| the constitution it cannot be held by a
member of the legislature. If it is not,
| then the incumbent has no right TO
| draw a salary from the treasury or
| the county as a public officer. me
| judge ridicules the idea that the ofhce
| is entitled to especial consideration be-
cause of any confidential character.
He finds no place in the law where a
distinction is made in favor of conf
dental offices, and with evident sar-
caSm draws picture of the high ana
naughty stenogFapher, who is not anne
nable to the constitution, swelling round
one day with mighty and mOmentouS
state secrets in his bosom, fired the
next day by one stroke of the pen by
| the judge who appoints him.
Justice Canty continues:
He is not an object of charity. If 1t
| Is once found by the members of the
| legislature that they can find for them
| selves fat places where they can draw
| large salaries without being burdened
| with any official duties they will, in
| deed, be in clover. The majority con-
cede that whether or not the proceed
ings shall be instituted by a private
relator is in the sound discretion of
this court On what do they base this
discretion? On nothing but the fact
that a member of the legislature wants
to draw 81, 500 per year, and hold an Of
flee of a confidential character.
Neither is the fact that the attOr-
ney general has refused to do his duty
in proceedings to GUST the respondent,
any reason why the court should re-
fuse to do so. 1t has an independent
discretion of its own. The case Is not
doubtful. There is absolutely nothing
to justify the court in refusing to ell
terrain the proceedings.
The exercise of this discretion in
refusing should be based on something
substantial. but here we have the
spectacle of a Willful violation of the
constitution, and here by an inScruta
BILE discretion, based on nothing but the
sweet will Of those who exercise 1t, the
violation will be upheld and allowed
to continue.
IF one clause of the constitution
can be set aside at will, why not all Of
them?''
The syllabus of the majority decision
is as follows:
State of Minnesota ex rel. Augustus S. Dow
dali, relatOr, VS.. John F. DAHL respondent.
l. This court has the right and under some
circumstances, in the exercise of sound
judicial discretion, it may become It's duty
to allow an information in the nature of quo
Warranto to be filed by private person hav
ing personal interest in the question dis
tinct from the public, to test the right of an
incumbent of public office to hold the same,
Notwithstanding the attorney general has re-
fused to give his consent thereto.
9. But the granting withholding leave
to file such information at the instance of
private person rests in the sound legal discre-
ton of the court and is not matter Of
strict legal right. and when the attorney gen
eral has refused to consent the case should
be exceptional and one in which it clearly
appears that the public interests require it
to Justify the court in overrulng his judgment
3. Without deciding whether a stenogra-
pher in the district court is holding an ''of
fce' within the meaning of article 4, section
y,
provisions of the statute, S. L. 1891, chapter
$40, under which such stenographer is ap
pointed by and for each of the judges of the
district court in question and his duties
hereunder, in connection with the fact that
the proposed relator has no personal interest
in the question, distinct from the public, it
is held that in the exercise of a sound
judicial discretion the petition herein, praying
upon the ground that the appointee is
holding his position in violation of the ccnsti-
tutional provision above mentioned that the
inr1nT hn tod 70 int
alton for the purpose above indicated should
be denied. Collins, ].
The court also afirms the decision in the
case of Keigher against st. Paul. to re-
cover on a disputed sprinkling contract. The
syllabi in this and the other decisions follow
Patrick Keigher. appellant, VS.. The City Of
st. Paul respondent.
Held that the evidence justified the court
! in finding that certain payments were made
| generally on account and not specially made
and received in extinguishment of the prin-
cipal of the debt; following Moran Mfg. Co.
VS.. City of st. Paul, 81 N. W. Rep. 100,
By the terms Of certain street sprinkling
contracts the amount of work to be done and
consequently of compensation to be paid were
not definitely fixed and could not be ascer-
tanned until the end of the sprinkling season.
These contracts were PAYABLE only out of the
proceeds of assessments to be made for that
purpose Held, that the board of public
works was not required to make monthly as
sessments TO pay for the work. but might
| wait until the work was completed and then
make one assessment for its entire COST also
! held that it was implied term of the
| contracts that the city should have a reason
| able time after the completion of the work
| in which to make and collect such assessment,
| and that until the expiration Of such reason
| able time the contractor was not entitled to
| interest as damages for the non-payment
| of the contract price. Orders affirmed.
Mitchell, ].
| Eva T. Reynolds, appellant, vs. Atlas Acct
/ dent Insurance Company of Boston, re-
spondent.
An accident insurance policy provided that
lin consideration of the warranties and agree
| ments contained in the application Endorsed
hereon" the company accepted him as a mem
| Der subject to all the conditions indorsed
| hereon." One of the conditions Endorsed on
! the policy was that 1.-The application for mem
bership is made part Of this contract and
J printed thereon
f: Held, that attaching a copy of the appIica-
| ton to the back of the policy with mucilage
or some similar substance and delivering
the same to the insured constituted an lin
dorsement of the application upon the policy
within the meaning of the contract.
The answer to a question required to be
answered categorically was indistinctly writ
ten in the original application, appearing
to consist Of the letter M and a part of the
| letter 30" but in the copy attached to the
| policy and delivered to the insured the answer
i was clearly and distinctly written mo" The
and until his death without objection and
! without suggestion that 1t did not correctly
| state his answer to the question.
Held, that there was no error in refusing
| TO submit to the jury the question what
! the answer actually was; that even if the
answer as written in the original application
! was illegible the insured by retaining the
! copy OF the application attached to the policy
! without objection must be held to have an
proved of it and accepted it as containing his
! answer to the question. Order affirmed
Mitchell, ].
Asa 3. Barton resnondent VIC p;oroou c.