JOHN F. SINGEWALD AND ANOTHER v. MINNEAPOLIS GAS COMPANY AND OTHERS.
No. 39,953
Supreme Court of Minnesota
May 13, 1966
142 N. W. (2d) 739
“*** We cannot say that the evidence would support a contrary conclusion. The employee has the burden of proving that his wage was in excess of $50 a week—or the $136 [sic] he alleged it was.
“We can take judicial notice that few, if any, carnival workers of ordinary ability earn that much. The evidence to the contrary is persuasive.”
It is universally held that hearsay evidence received without objection is competent and becomes part of the evidence, usable as proof to the extent of whatever rational persuasive force it may have.1 Moreover, the record clearly reveals that the commission upheld the referee‘s finding independently of its observation with respect to the likely earnings of carnival workers. While the amount of such earnings may not be of sufficient notoriety to warrant judicial notice, the observation is wholly consistent with what the record reveals as to the earning capacity of this employee in the light of his background, experience, and mental capacity. The finding is clearly supported by competent evidence and must be affirmed.
Affirmed.
Wright & West and Gislason, Reim, Alsop & Dosland, for appellants.
Mastor, Hart & Seran and George C. Mastor, for respondent gas company.
Grannis & Grannis, for other respondents.
Appeal from a judgment of the district court.
On August 17, 1964, the Burnsville village council adopted Ordinance No. 33 as a result of which the Minneapolis Gas Company was granted a non-exclusive franchise for the sale and distribution of gas in a part of that village. As a result, both the Minneapolis Gas Company and a competing utility, the Minnesota Valley Natural Gas Company, have franchise rights in the area involved.
Action was instituted to have the ordinance declared void upon the ground that one of the members of the council was interested in the franchise contract authorized by the ordinance within the meaning of
The trial judge to whom the matter was submitted has made no specific finding of fact on this determinative issue. He did find that one of the three council votes required for passage of the ordinance was cast by an employee of the Minneapolis Gas Company, who, in doing so, “acted exclusively as a faithful servant of the Village of Burnsville without intent on his part directly or indirectly to profit by his favorable vote * * *.”
The findings of fact as formulated do not support the trial court‘s conclusion that the ordinance is valid. This is so because in our opinion the prohibition of
No Minnesota decision has dealt specifically with the question whether a councilman having the relationship to a party contracting with the village disclosed by the record here is directly or indirectly interested in the contract within the meaning of
We do not subscribe to the principle that council action should be vitiated in situations such as this if the vote of the councilman directly or indirectly interested in the contract would not be determinative of the action taken.
In deference to the factfinding function of the district court, the matter is remanded for additional findings in accordance with the views expressed in this opinion.
Reversed and remanded with directions.
OTIS, JUSTICE (concurring specially).
Since I read our opinion to hold that under the facts before us the trial court can make no finding except that Minneapolis Gas Company‘s employee while acting as a member of the village council was indirectly interested in the adoption of the ordinance granting his employer a franchise, I would reverse without remanding.