The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1901-09-27
LAW is PERPLEXINC
COMMON COUNCIL CANNOT ACT
JOINTLY IN CHOOSING SUCCESS
SOR TO WHTTEHORNE
CONSTITUTING THE CHARTER
Assistant Corporation Attorney
Griggs Hands Down an Opinion
Which Creates a TangIe--Not
FayorabIy Received.


horne. The vacancy can only be filled by
the council acting in separate session of
it's component bodies.
This. in brief, is the status of the
Whitehorne- commissionershio vacancy,
and to the ordinary observer who can
hardly Sc sharmensssin tive bodies of diff
ferent political belief, it preculdes any
possibility of the vacancy being filed
this year at least.
The Interpretation of the city charter
which is responsible fers this state of af-
fairs, was made. by Assistant Corporation
Attorney GriggS, and his opinion which
follows was--gipen yesterday at the in
stance cf President Schiffmann, who de-
sired to know the common ,councirs au-
thority in the premises before calling a
special meeting of that body. The opin-
ION in full is as foHewS.- - a
F. Fl. GRIGGS' OPINION.
Hon. Rudolph Schiffman. Acting Mayor
and President of the Common Council
Dear Sir: After careful consideration of
the inquiries AnIR1ie by you with reference
to the documents handed me by the city
clerk in the Inatter of the existing va
cancy IN the board of county comm Ission-
ers, and which5have this day been returns
ed to him with a copy of this opinion I
nave the honor to suggest, and in re-
Spouse to that one of the inquiries which
had to do With the existenceFef the va
cancy itself, to advise you that in the
opinion of this department "a vacancy
does now exist in the Office of the county
commissioner, formerly held by George
b Whitehorne, representing one of the
districts comprised wholly within the cor
porate limits OF. the city of st. Paul. in
the county of Ramsey
The constitution of this state provides
IN section 2, of article Is thereof, that the
legislature may make provision for the
removal OF inferior officers, such as
ay,Ni sci.
or nonfeasance of the performance OF
their duties 49,
By section Sss of the General Statutes.
OF 1884. the legislature has provided that
the governor may remove from office
any county comm issioner
whenever it appears to him, by compe-
tent evidence, that either of such officers
nave peen guilty of malfeasance or nom
feasance of. the performance. of his Of
flclai duties, and by chapter 81 of the
laws of 1872, now. to be found as sections
S94 to SsS inclusive, in the General Stat
utes OF 1884 It is provided that whenever
charges are filed against any such officer
the governor shall appoint special com
miSSionerS to take and report testimony
and evidence, to be returned to the gov
ernCr for his action thereon.
From an inspection of the documents
forwarded to the city clerk under date
OF sept u. over the sigma ture of the
governor of this state, it appears that
all of the steps required by the .stat1ltes
to which [ have referred, were duly and
properly taken, and that George b.
Whitehcrne, formerly an incumbent of
the office of county commissioner, above
referred to, has been ''adjudged guilty of
| nonfeasance' in office by the governor of
this state, and that there has been en-
tered in the Office of the governor an
order that he be and is hereby removed
from the Office of C3unty commissioners
OF the county of Ramsey and the state
OF Minnesota, and said office declared
vacant 5s If-
Co.
eral Statutes of 1878, as amended by
chapter 17S, of the General Laws of 1881,
winch now appears as section $40 of the
General Statutes of 1894, relating to va
cancleS in the office. of county. commits.
SIoners, 1t is provided: That whenever
Such vacancy shall occur in any commits
sioners district. which is comprised
wholly Within the@limits of any inorpor-
ated city, then such vacancy shall be
hlled by the common council Of such in
corporated city, Other Vacancies are to
be filled by meeting of the chairrnen of
the board OF supervisors in each town,
and presiding officer of Incorporated VII
lagos or cities Incorporated within thar
district, and it is made the duty of tie
county auditor to Immediately give
hotlce thereof TO such chairman, and pre-
siding officer.
The county auditor of Ramsey county
has had an identical notice with that re.
turned to the. city CLERK, served upon him
by the governors directions and wi j nm
doubtedly notify You of the fact that a
vacancy exists. In my view of the law
however, it is imnaterial. whether he
shaH notify you or net, because the ap-
pointing BODY has had notice from the
governor himself. and you, as presiding
ohlcer. have also had that notice
VESTS IN COMMON COUNCIL.
Although this act was passed be ~o4e
the adoption of the Bell charter and at
the time when the common council of
this city consisted of one body-its 3ard
nFrgl01
the power to fill this vacancy and the
duty so to do, rests upon and is vested
IN the common council of this city
RMS, [ apprehend. is an answer to SO
question.
Further and as to the method by
which the common council is required
to fill the vacancy. desire to call your
the charter of this city:
BY section of chapter ", ii IS pro-
xlded that: The legislative authority of
the city of ST. Paul shall be vestej in
the common council. which shall con-
siSt of two bodies Said bo3ies
shall meet separately, save as he Elm
provided, for the transaction of business.
at the court house or city hall of said
city" soy
In section we find that: '.on the first
19suay od June, or as soon thereafter
Gil. acting in joint session, shall elect a
president and vice president ''to preside
over their meetings when in joint SEES
sion"
The question arises. in view of the pos
tive language of section l. Just quoted.
as to whether or not the charter pro-
vldes for joint session of the common
council to fill this vacancy.
There are numerous instances when tho
common council is required to act not
separately, but in joint session, as for in
stance, for the selection of an Official
printer or the election of a corporation
nov a aiR1 kal1a
lates to the election. terms of office va
cancies and removals, it is provided. in
section z, that: "At each general city
election there shall be elected a
common council consisting of two
bodies, one to be known as the assem-
pay the other to be known as the
board of aldermen
In section 10 it is made the duty of the
common council, within one week after
any city election, TO meet in joint ses-
sion and proceed to canvass the returns
| as a canvassing board
IN section II, when in an election bv
| the people, two or more persons shall re-
celve an equal number of votes for the
same office. the election shall be deter
mined by the casting of lots in the pres
ence of the common council acting in
| Joint session.
BY section Is the common council is
authorized, acting in joint session. by
a vote of two-thirdS of all the assem-
! biymen authorized to be elected, and a
vote of two-thirds of all the aldermen
authorized to be elected to remove anv
person appointed to office by it, or elect
| ed by the people, and ''the common
| council, acting in joint session, shall have
| power to fix time and place for the
| trial of any such officer against whom
| charges have been filed.
| In section is it is provided: whenever
| vancancy shall occur in the Office Of
| any officers elective by the people, such
| vacancy shall be filed by the appointment
| of the common council acting in Joint
session, until the next general city cleo