The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1901-05-26
N SARDY G)AES 70 TINE
WRIT OF MANDANIUS COMPELs
COMPTROLLER To AUDIT
BREMERsS CLAIM
JUDGE HOLDS BILL Is VALID
In a Lengthy Memorandum Judge
Kelly Says Surety bonds Should
Not Be Paid For by Of
ficehoIder

In the language of Young America"
Comptroller McCardy and County Auditor
| Johnson "have another guess coming .
In the meantime Mr.. McCarly, acting
under an imperative writ of mandamus
issued yesterday by Judge Kelly of the
| district court, will proceed to audit the
| council resolution paying to City Treas
ure" Rremer $500 expense incurred by him
| in securing a surety bond of s2CO,COO.
In the case of County Auditor johnson
| a writ Is not necessary He has
"tumbled'' and in consequence County
| Treasurer Metzdorf is fondling a check
! Ger sbC0, which has been reposing in the
auditors inside pocket ever since the
| cGmptrollers contentious became public
| property. Mr.. Johnson turned it over to
| Treasurer Metzdorf yesterday afternoon.
| In refusing to reimburse the two fnan-
| cial custodians, as authorized by the
| common council and the county comm s.
sioners, Comptroller McCardy and Audi
| tor Johnson based their refusal on the
! ground that the law authorizing such
| was unconstitutional in as much as it's
! title was misleading Mr.. McCardy also
| held that the provision conflicted with
| the charter, and at the test case held
before Judge Kelly both these conten-
! tons were advanced by the city legal
department, Mr.. Bremen being represent
| ed by C. D. O'Brien. Mr.. Johnson simply
| awaited developments and held on to the
check voted Mr.. Metzdorf by the county
commissioners.
In his opinion yesterday ordering the IS
suance of an imperative writ of man
damus which demands the payment of
the $500 to Mr. Bremen, Judge Kelly gives
| the following interesting memorandum:
JUDGE KELLY's MEMORANDUM.
By sections IA and Is, chapter Ill,
Of the charter of the city of St Paul,
the treasurer of the city is required be-
fore he enter into office to execute and
deliver to the city bond in $500 eco, with
surety, conditioned to the faithful dis
charge Of the duties of said office.
Section 16 requires Subject to the pow
er of the common council with the may
orS approval, to accept a bond with
personal surety, such surety to be a So
called bonding company or corporation,
as provided for by section 56, chapter 175
General Laws 1895, of this state. The
relator on his election and induction into
the office Of city treasurer eof st. Paul,
about June, 1850, made such a bond with
the American Bonding & Trust company
a Maryland corporation duly authorized
to do business in Minnesota, as surety
This bond was accepted and approved
by the city, and in April 1901 the common
council, with the approval of the mayor,
adopted a resolution allowing the rela-
tors claim for $500 premium paid said
company for said bond for the year be-
ginning June, 1900, and ordered the re-
spondent comptroller Ito transmit to the
council an audited resolution for the pay
ment thereof" This resolution, after
Punilcation, came to the respondent
comptroller, and he refuses to obey the
councils order. These proceedings are
to compel the city comptroller to audit
such claim. ~
The comptroller through his counsel
objects that the relator is entitled to no
FeieT, out expressly waived any technical
objection 2.tb9 to the petition. His argument
IN ~ prlef is: q the treasurer takes his
once with It's burdens; (2) one sof these
burdens is that he execute and deliver
this bond and at his personal expense:
~ the law, SECTIONS IS and 81, chapter
175, Laws Of 1885, is void because the sinh
Ject matter thereof is not expressed in
the title Of the act; % this infirmity in
the original law is not cured by chapter
81, Supra.
1t will be conceded that the treasurer
" QuaEIy Tor once must give the bond
required by law. And perhaps if he had
any option and for his own convenience
or personal security preferred to~furnish
bond With one of these corporations
as surety rather than the personal Sc
curlty OF individual freeholders, it might
| be said he Should pay from his own funds
the expense attendant upon this exercise
of his preference
put the charter requires the surety Of
a pond company, with possible exce6-
non not applicable in this case. Indeed
it seems to be the intent of the law,
MAKER M feis to to- at least try the experiment
OF TINS sort OF security for official good
| conduct in offices generally. These Corr
| Pan1es charge what is called a premium
TOT thelr guaranty, and this premium ia
!!Ssulateo by the amount of bond rather
tHan by the integrity or trustWorthiness
| OF the official bonded. So that an Of
| Icer VINO, by reason of his probitv and
nlgh standing can readily furnish IN
| questioned personal security in any rea-
| sonaple amount, Is thus called to incur
| the expense Of a corporation bond. It
does not seem Just to ask him to pay
tuaL expense from his own private fund,
! ject.
THE DECISIVE POINT.
The following facts and considerations
WnIch were not suggested on the argu-
| ment, appear to be pertinent. and ner-
| haps decisive of this question. Chapter
a. Gen; Laws 1889 (Sec. 5947. Stat MINI.
lS34), the title Of which Is IAN act rel
ast or9 TO the reeognizances, stipulations.
! po1uS' oollgat1ons and UNDERTAKINGS
ana to allow corporations to be accept
Cd as surety thereon" expressly in sec
ton provides for the giving of bona
suit by all persons holding places OF
trust, where by law, municipal or 9TH
e errW1se'" a bond is required. Section z
as part of his lawful expenses such
reasonable sum paid for such surety
SNIP as may be found just. not exceed
| rs per cent per annum on the amount
| or the bond. This section is not as
| troad as the first, and does not ex-
preSs!y cover case as the one at bar.
Rut the statute Is not subject to any
criticism as to the clearness Of it's title
1t Will be found that sections Sc and ST.
or chapter IL, Laws of 1895, are copies
verbatim with two minor exceptions, of
sectlonS and 2. chapter AZ, Laws of
1929 In other words. the legislature In
1925 repeated in the insurance code what
was already the law relative to bonds
WIN corporations as surty thereon. II
IolloWs, therefore, even though it might
be held that the subject embraced In
sections Of and 81, of chapter IT'S, supra
and the sections void in consequence that
| the same law exists by virtue of chap
ter AZ, 1893, the validity of which has
never been questioned
Thereafter the legislature, by chap
ter 145; Gen. Laws 1891, which bears this
title, An act to amend section 81 OF
chapter 1!5, of the General Laws OF
1879, relating to the giving of surety
extend the scope of what we have seen
to be chapter 70 of the laws of 1893. In
TINS last act the subject is clearly ex-
pressed in its title. So that if we con-
e &c Ell that section 81 of the act of 1891
pressed in the title we still have the
act of 1901. re-enacting it in a valid man
ner And by it's language the section
IN question is amended 80 as to read
legislative Wild, the law Of 1901 is full
clear and complete. independent of sec
ton 81 supra" If It be said that sec
ton 81 when found in chapter 175 is a
mere compilation and not, the subject
Of amendment by references thereto. OF
that the act of 1901 is void because ii
goes not properly refer to- an existing
law upon which an amendment could be
based, the answer is to be found in the
! uon r al