135 Minn. 221 | Minn. | 1916
The city council of the city of Duluth, by resolution, directed the city clerk to advertise for bids for the sale of a certain armory building belonging to the city. Sealed proposals were received, and, among others, one from respondent offering $50,000 for the property. This offer was accepted by the city council at the meeting held on December 27, 1915. An ordinance was adopted January 3, 1916, approved January 5, 1916, accepting the bid and directing the execution of a contract of sale. The ordinance provided that it should take effect and be in force 30 days after its passage and publication. It was duly published, the last publica.tion occurring on January 5, 1916. At a regular meeting of the council held February 7, 1916, respondent tendered the cash payment called for by its bid, and demanded that the city execute the contract of sale as provided by the ordinance. The city refused, upon the ground that a petition for referendum on the ordinance had been presented to the city clerk, and that the council were uncertain whether the ordinance was suspended or in force. The respondent thereupon, and on the same day, brought this action for specific performance.
Appellant having answered, the matter was heard in due course, and judgment entered for the respondent directing the city to execute the contract.
A petition for a referendum was filed with the city clerk, who thereafter attached thereto his certificate that the said petition contained names
The court found the foregoing facts, and also found that the petition was composed of 34 parts, all of which were filed with the clerk on February 4, 1916; that the city council held weekly sessions for the transaction of business during the month of January, 1916; that neither the papers nor the petitions were presented to the city council during the 30 days following the last publication of the ordinance; that the petition was not submitted to the council until February 7, 1916; that the clerk immediately proceeded to ascertain from the voters’ register whether or not the petitions were signed by the requisite number of qualified voters; that on February 5 he found that said petition did not contain the names of qualified voters equal in number to at least ten per cent of the total ballots cast at the last general municipal election; that the number of ballots east at the last general municipal election was 13,228; that the last meeting of the city council for the transaction of business before the meeting of February 7 was held Janaury 31; that at the meeting of February 7 the clerk submitted the petition and the several parts thereof with his certificate to the city council; that the petition was not signed by ten per cent of the qualified electors of said city as ascertained from the voters’ register; that the total number of names signed to the 34 parts was 1,455; that the petition, including all its 34-parts, contained the signatures of but 908 qualified electors; that four of the 34 parts comprising the petition were verified by persons who were not registered voters at the time the petition was filed; and that 16 of the 34 parts were verified by duly qualified and registered voters, but that each of the 16 papers was not verified by one of the signers thereof.
It further appears that on February 15, 1916, additional petitions, which contained 399 names, were filed with the city clerk. It also appears that, subsequent to the making of his first certificate, the clerk, with the aid of the city directory and of the post-office officials, made a further examination, and ascertained that the signatures of 128 registered qualified voters had been omitted from his check list of 908 persons, making a total number of registered voters as ascertained by the clerk of 1,036, instead of 908. The total number of qualified signers required by the charter was 1,323.
Section 50 of the charter pertains to the recall of city officials, section 51 to the initiative and section 52 to the referendum.
Section 52 provides in part as follows:
“No ordinance passed by the council shall go into effect before thirty (30) days from the time of its last publication, except when otherwise required by the general laws of the state, or by the provisions of this charter.
“If during said thirty (30) days a petition, signed by qualified electors of the city equal in number to at least ten (10) per centum of the total ballots cast at the last preceding general municipal election, protesting against the passage of such ordinance, be presented to the council, the same shall thereupon be suspended from going into operation; and it shall be the duty of the1 council to reconsider such ordinance, and if the same be not entirely repealed, the council shall submit the ordinance, as provided in section 51 of this charter, to a vote of the electors of the city, either at the next general municipal election, or at a special election called for that purpose, and such ordinance shall not become operative unless a majority of the qualified electors voting on the same shall vote in favor thereof. The provisions of sections 50 and 51 of this charter, respecting the forms and conditions of the petition, and the mode of verification, certification and filing, shall be substantially followed, with such modifications as the nature of the case requires.”
The provisions of section 50 require that the petition shall be filed with the clerk, that the signatures to the petition need not all be appended to one paper, but each signer shall state his place of residence and street number, and that one of the signers of each such paper shall malee oath that the statements therein made are true as he believes, and that each signature to the paper appended is the genuine signature of the person whose signature it purports to be. It is also provided that, within ten days from the date of filing such petition, the clerk shall ascertain from the voters’ register whether or not said petition is signed by the requisite number of qualified electors, and that he shall
“If by the clerk’s certificate, the petition is shown to be insufficient, it may be amended within ten days from the date of said clerk’s certificate. The clerk shall, within ten days after such amendment, make like examination of the amended petition, and if his certificate shall show the same to be insufficient, it shall be returned to the person filing the same, without prejudice, however, to the filing of a new petition to the same effect.”
Section 51, which relates to the initiative, provides that “the provisions of section 50 of this charter, respecting the forms and conditions of the petition, the mode of verification, certification and filing, shall be substantially followed, with such modifications as the nature of the ease requires.” Section 52 contains a similar provision.
It necessarily must be presumed that the members of the city council, who are the. representatives of the people and to whom is confided the lawmaking authority, have acted with deliberation, honestly and in good faith in the performance of their duty in passing an ordinance for the government or welfare or benefit of the city, and that the passing of an ordinance by them is a valid exercise of the power delegated to them. The
Where the law relating to referendum provided that the petition might comprise any number of parts and that “each section shall have attached thereto the affidavit of the person soliciting signatures to the same, stating his own qualifications and that all the signatures to the attached section were made in his presence, that each signature to the section is the genuine signature of the person signing the same, and no other affidavit thereto shall be required,” it was held that “without such affidavit a section has no validity whatever. It must, among other things, state the qualifications of the solicitor by whom it is made. He is required to be an elector within the county in which the section was circulated.” Thompson v. Vaughan, supra.
Our conclusion is that the petition did not contain a sufficient number of names of qualified electors, that the names on those sections of the petition which were not verified by one of the signers thereof cannot be included as any part of the original petition, that the attempted amendment, filed 40 days after the ordinance was passed, was of no effect and that the ordinance in question is valid.
That part of the Duluth charter relating to the recall, initiative and referendum, appears to have been adopted from the charter of Los Angeles (Laws Cal. 1903, Concurrent Eesolutions, c. 6, §§ 198a, 198b, 198e). The provisions of sections 198a, 198b and 198c of the Los Angeles charter are in all material respects identical with those of sections 50, 51 and'52 of the Duluth charter. The California court of appeals in 1911 and prior to the adoption of the charter of Duluth, construing the Los Angeles charter as to the referendum, arrived at practically the same conclusions. Rushton v. Lelander, supra. See also Dalton v. Lelande, 22 Cal. App. 481, 135 Pac. 54, and the notes in 50 L.R.A.(N.S.) 211, 220, and in Ann. Cas. 1916B, 824, 825.
Judgment affirmed.