| Minn. | Apr 17, 1877
By Sp. Laws 1869, c. 46, the town of Lime, in the county of Blue Earth, ivas authorized, by vote of a majority of its legal voters present and voting at any
It is contended, first, that the Avritten statement filed Avith the toAAm clerk, upon Avhich the election Avas called, though purporting, on its face, to be regular, and to be signed by the requisite number of freeholders of the town, did not, in fact, contain such number, because some of the-persons signing the same Avere not, at the time, legally such freeholders; and, secondly, that the clerk only posted notices of the election in three, instead of five, public places inthetoAvn; and to support these positions, the alleged facts are sought to' be established by proof dehors the;
Section 16 provides that “ special town meetings may be held for -the purpose of electing town officers to fill any ’vacancies that occur, also for the purpose of transacting any ‘other lawful business, whenever the supervisors, town clerk, •and justices of the peace, or any tivo of them, together with at least'twelve other freeholders of the town, file in the office of the town clerk a written statement that a special meeting- is necessary to the interests of the town.” Section 17 makes it the duty of “the town clerk with -whom such ’Statement is filed, as required in the preceding section, to record the same, and immediately cause notice to be posted up in five of the most public places in the town, giving at least ten days’ noticeof such special meeting.” Section 18 prescribes the character of the notice, and the succeeding ■sections relate to the mode and manner in which the meeting shall be organized, and its proceedings conducted, etc.
It will be observed that these special town meetings may be called and held for the purpose of electing any town ■officers to fill vacancies, and to transact any other lawful business ; and the 'question arises whether, after a meeting lias been held under-a sufficient notice, properly specifying the business to be done, and a decision upon the subject-matter submitted has been reached, and the result declared, •and made a matter of record, any officer of the town upon whom the duty is imposed of doing some specific act, in execution or in -.consequence of such decision, can legally refuse so to -act, on the ground of an erroneous decision of 'the town clerk in determining upon the freehold qualifications of any of the signers to the written statement filed in his office, and upon which he acted in making the call— ■especially when, as in this case, the statement shows upon its face that each signer avers himself to be a freeholder of ■the town, and nothing appears to the contrary.
Suppose such meeting had been called and held to fill a
The power to call a special town meeting is vested, by the statute, solely with the town clerk. Upon that officer the duty is imposed of making a call whenever the requisite written statement provided by section 16 is filed in his office. Whether it is such a statement as is therein provided, is a matter alone for him to determine, in the honest exorcise of his best judgment upon the information before him, and such as may lawfully be presumed to be within his reach and possession. The statute, doubtless, selected him as the most fit person to be entrusted with the exercise of this power, because his official relations with the town and its citizens are necessarily such-as would likely well qualify him for an intelligent and impartial discharge of the duty imposed. When, therefore, as in the case at bar, the statement so filed is genuine, and correct in form, and there is some evidence, presumably at least, before the officer, calling for the exercise of his judgment, and nothing appears to affect the integrity of his conduct or the honesty of his decision, his determination in the matter is final and conclusive, except upon a review by some competent tribunal, in a direct proceeding authorized by law. Especially must this be the case as against town officers occupying the
In reference to the second point, as it is not clearly and affirmatively shown whether the notices of election -wore posted in three or five places, it must be presumed that the}’■were properly posted in accordance with the general presumption in favor of the right performance of official duty, though it be conceded that the alleged omission is not one covered by the decision in the case of Taylor v. Taylor, 10 Minn. 107" court="Minn." date_filed="1865-01-15" href="https://app.midpage.ai/document/taylor-v-taylor-6641615?utm_source=webapp" opinion_id="6641615">10 Minn. 107.
That the town had the requisite legislative authority, under the act in question, to aid the construction of the relator’s railroad, by providing, in the manner it did, for an issue to the company, as a bonus, of the designated amount of bonds, and to fix upon the terms and conditions of their issue, is unquestioned. Davidson v. Com’rs of Ramsey Co., 18 Minn. 482" court="Minn." date_filed="1872-01-15" href="https://app.midpage.ai/document/davidson-v-county-commissioners-7962750?utm_source=webapp" opinion_id="7962750">18 Minn. 482.
The adoption of the resolution created a statutory and legal obligation against the town, in favor of the company therein named, to issue to it the amount of bonds therein provided, upon the performance of its conditions and on compliance with its terms by the latter, and the supervisors were authorized and directed to do the ministerial duty of executing and delivering the bonds whenever the conditions were fulfilled; and this was the extent of their authority. No formal acceptance nor written agreement was required of the company to give validity and effect to the resolution. It was in the nature of a standing offer,-which the company was at liberty, at anytime before
The resolution, in terms, authorized and directed the issue of bonds to the amount of $4,000, etc., “ one-half of said bonds to be delivered to said company whenever it shall have graded and bridged its road from the city of Mankato for twelve miles in a southerly direction, and the other half to be delivered when the said railroad is completed to Wells, Faribault county, the iron laid, and the cars running thereon, provided that said last instalment of bonds shall never be delivered, unless said thiity-nine miles of-railroad is so completed befoi’e the first-day of August, 1872.” The road was not so completed before August 1, 1872, and hence no claim is made to the last-named instalment of bonds; and as the company did not finish the requisite amo'unt of grading and bridging to entitle it to the first-named instalment, until after that period, it is insisted that it has no legal right to demand and receive that instalment.
As respects relator’s obligation, if any, under the resolution, the question presented is not analogous to that arising out of a contract containing mutual and dependent covenants, each of which is the consideration for the other. The relator here assumed no obligation whatever in reference to the construction of any part of the road, or'the time within which it should be done. The proposed aid on the part of the town was a mere gratuity, intended as an inducement to the building of the road, and having, as the sole consideration for its support, the public benefit expected to result from its construction. In making the gift, the town annexed
The other questions raised upon the argument have been fully considered and decided in the case of State, ex rel. Central Railroad Co., v. Town of Clark, (ante, p. 422,) which was submitted at the same term.
Ordered that a peremptory writ issue, as prayed for by the relator.
Gilfillan, O. J., having been of counsel, did not sit in this. case..
Applications for like writs by the same relator against the supervisors of the towns of Beauford and Mankato, respectively, in the same county of Blue Barth, were argued and submitted by the same counsel at the same time with the foregoing case, and with the same result.