Little Falls weekly transcript. (Little Falls, Morrison Co., Minn.) 1894-19??, 1900-12-25

: ~ = 7S-3"s7.s--T ss. T.. ~
COUNTY OF MORRISON. ~ IL i
4, ~. " District court. $se '@%
u !. ~ Seventh Judicial District.
The State OF Minnesota upon :
the Relation of Samuel ~.
Trebby, Relator. " ;g'%> Z Y Y. *
J ames. A. Nichols, az Mayor n
of the City of Little Falls,
Respondent. .>ssS@.,I II
The above entitled matter having
been duly brought on for hearing be-
facts made by the parties and filed
herein and which is made q part
hereof, George W. Stewart, Esq,
appearing for the Relator as his at
torney, and E. F. Shaw. Esq, city
attorney Of the city Of Little Falls,
as attorney for the respondent, and
the court being duly advised In the
premises, finds as
-. FACTS
that said stipulation filed herein lie
true; and as
CONCLUSIONS OF LAW. ~
the court finds that said relator is
not entitled to the relief asked, aud
that the writ Of mandAmus and all
other proceedings had herein should
he and the same hereby are dis
missed
Let Judgment be entered accord
ingly. Stay OF proceedings for thir-
ty DAYS from the notice Of the fling
Of this decision.
Dated, st. Cloud, Minnesota, Dec.
Il, 1910.
BY the court,
u. B. SEARLE,
District Judge.
Note: This ia a proceeding In
mandamus brought by the relator
to compel the mayor of the city OF
Little Falls to sign an order for
$500, dated April 2. A. D. 1900, upon
the treasurer OF said city, in favor OF
the relator for services as city at
torney. Upon the stipulated facts it
seems to me that the writ should be
denied for the following reasons:
First. Because the salary of said
relator was never fixed or desig-
mated by ordinance of the common
council and approved by the mayor
as required by section 80, chapter
OF the laws of Minnesota for 1889,
(being the charter OF said city,
Second. Because said relato was
not eligible to the Office of city at
torney. not being q qualified attor-
ney at law.
Third. :: Because the writ of man.
will not lie where the right Of
the relator is doubtful, or where
there is is a plain, speedy and ade-
quatet remedy In the ordinary course
Of law. ... y- ,.e',-.
As to the first reason assigned for
denying the writ, section 10 of the
city charter provides for the ap-
pointment Of q city attorney and de-
fines his duties; section 80 provides
that "all officers whose compensa-
tation is not specifically fixed herein
shall receive such reasonable salary
as shall be designated by ordinance
OF the council and approved by the
The city attorney Ia an
officer of the city and the compensa-
ton of such officer ia not fixed by
the charter; therefore 1t seems to me
that the provisions of section SO are
and that the salary of
the city attorney must be designated
as therein required. 1t does not
seem to me that the law is open to-
any other construction; and the
council having failed to act in &C.
cordancc with the provisions of this
section this proceeding will not lie TO
the respondent to perform
the duty sought to be enforced. The
case OF Calvin vs.. St. Paul City, So
MINI. 476, seems to be in point.
AS to the second reason, namely
that the relator was not eligible to
the office, section 10 OF the 1889 laws
above referred to, evidently contem-
plates the appointment of IL qualified
attorney, who shall, when requested
advise and furnish opinions upon all
legal matters submitted to the coun-
Gil. The duties required of the city
attorney could not be reasonably
from a person not learnedin
the law. have not overlooked the
case Of the State vs.. Clough, % Mimi.
II. The case at bar, however, does
not it seems to me come within the
rule laid down in the case cited, for
the reason that the office is not an
one;hence. theprovision of the
harter-construed as requiring the
appointment OF q qualified attorney
as city attorney-would not contra
vene section z, article Of the state
constitution. The relator therefore,
not being city attorney de jure, the
writ will not lie. 'y ,....., Il Ia =,
Third. 1t is elementary that man.
damus will not lie where the rights
~ Tho ro1a tor ara 61tarhtfr1l u me an