31 N.W.2d 5 | Minn. | 1948
Lead Opinion
The board of tax levy for Hennepin county was created by, and exists pursuant to, Sp. L. 1879, c. 338, as amended by Sp. L. 1885, c. 84, and Sp. L. 1887, c. 110. Section 1 thereof as amended provides:
"Section 1. There is hereby created and constituted in and for the county of Hennepin, a board which is hereby designated and shall be known as the board of tax levy, and which shall be composed of the chairman of the board of county commissioners, the county auditor, the president of the board of education of the city of Minneapolis, the president of the board of park commissioners of the city of Minneapolis, the chairman of the committee on ways and means of the city council of the city of Minneapolis, the comptroller of the city of Minneapolis, and the mayor of the city of Minneapolis, which several officers shall be ex officio the members of the said board of tax levy." (Italics supplied.)
Section 2 provides that said board shall fix the maximum rate of taxation for the various purposes for which the board of county commissioners and certain boards of the city may levy taxes. By § 3, the levy of any tax in excess of such maximum rate is void as to the excess. Since the creation in 1919 of a board of estimate and taxation for the city of Minneapolis, the only function of the board has been to fix the maximum tax rate for the county.2
On August 27, 1947, O.J. Turner, the city comptroller for Minneapolis, died, leaving his office vacant. During Turner's last illness, *348 respondent, the senior utility engineer of the city, acted as assistant city comptroller in addition to his regular duties. Two days after Turner's death, the city council by resolution appointed respondent "to take complete charge and control of the administration of the routine affairs of said office until the appointment of a city comptroller by the City Council to succeed O.J. Turner, deceased." This resolution, after vesting respondent with certain enumerated powers, provided that he should "as Assistant City Comptroller, be and he is hereby vested with all routine powers of the office of the City Comptroller that may be necessary for the purpose of the administration of said office, and all of the powers and duties conferred upon the City Comptroller by the charter of the City of Minneapolis, or any ordinance, resolution or action of the City Council." Respondent was directed to give a bond in the same sum as that required for the city comptroller.
1. Relators' challenge to respondent's title to the office of member of the board of tax levy for Hennepin county raises no issue as to the validity of respondent's title to the office of city comptroller. By necessary implication, a direct proceeding for determining the validity of title to a certain office excludes as a collateral matter any attack upon the title to a separate and independent office. The attack must be direct as to both person and office. See, Mechem, Public Officers, § 330; Constantineau, De Facto Doctrine, § 23. In quo warranto proceedings specifically brought to determine an incumbent's title to office A, a collateral attack may not be made upon such incumbent's title to office B, a separate and distinct office, although the incumbent of office B is ex officio the incumbent of office A. In the instant case, the two offices are as independent of each other as if occupied by different persons, in that the duties of the two offices, as well as the municipal entities to which the offices pertain, are separate and distinct and are governed, as hereinafter noted, by different laws. Whether respondent is a de jure member of the county board of tax levy is dependent upon the legislative intent as expressed by Sp. L. 1879, c. 338, as amended. As a preliminary, however, to the fitting of the statutory shoe to the *349 last, it becomes necessary to determine respondent's status as comptroller.
2-3. Obviously, by the very terms of the resolution purporting to appoint respondent assistant city comptroller, he is not comptroller de jure. It is to be noted, however, that the resolution purports to appoint him assistant citycomptroller and to vest him with all the powers and dutiesconferred upon the city comptroller by the city charter or by any ordinance, resolution, or act of the city council. Whether the city council had the power to appoint, or in the manner followed succeeded in appointing, respondent assistant city comptroller de jure, need not, under the decisions of this court as applied to the issue and to the facts herein, be determined. In State ex rel. Briggs v. McIIraith,
"* * * The facts in reference to this matter are that one Zimmerman was city clerk, having been duly appointed and qualified as such. On December 9, 1909, Zimmerman absconded from the state and abandoned the office, and ever since then his whereabouts have been unknown. On the sixteenth of December, 1909, the council appointed Chambers 'assistant city clerk,' and he duly qualified, by taking the oath of office, took possession of the office, and thereafter performed all the duties pertaining thereto.
"It is probable that this appointment was unauthorized, and that Chambers did not thereby become a de jure officer. But his entering into possession of the office thereunder, and his continued discharge of the duties thereof, with the knowledge and co-operation of the city authorities and the public in general, made him a de facto officer, and as such his attestation of the warrant here in question *350 was valid. It is not controlling that he designated his official title as 'Assistant City Clerk.' He was in possession of the office of city clerk, and discharging the duties thereof under color of appointment and with public assent, and was therefore de facto city clerk."3
Respondent here, although officially designated as assistant city comptroller, is de facto city comptroller, in that he isin possession of the office of city comptroller and has beenand is discharging its duties with public assent under thecolor of authority provided by the resolution of the citycouncil which purports to vest in him all the powers and dutiesof that office. He is not a mere usurper or intruder. Substance, as indicated by the possession of office and by the unchallenged exercise of the powers and duties thereof, under the color of title or authority, prevails over a mere designation of official title. The de facto doctrine has its base in a sound public policy, which recognizes that it is necessary to protect those who deal with public officers apparently holding office under valid authority and in such a manner as to warrant an assumption that they are officers in fact. See, The Marckel Co. v. Zitzow,
4. Whether respondent as de facto city comptroller is a dejure member of the board of tax levy must depend on the construction given to Sp. L. 1879, c. 338, as amended. This act has been sustained on the theory that it created a new quasi-municipal corporation in the form of a special taxing district. State ex rel. City of Minneapolis v. Erickson,
5-6. Relators' contention that Sp. L. 1879, c. 338, as amended, being a delegation of the taxing power, is to be strictly construed is rejected. In Governmental Research Bureau, Inc. v. Borgen,
"The better rule, and the one we adopt, is that statutes imposing taxes and providing means for the collection of the same should be construed strictly insofar as they may operate to deprive the citizen of his property by summary proceedings or to impose penalties or forfeitures upon him; but otherwise tax laws ought to be given a reasonable construction, without bias or prejudice against either the taxpayer or the state, in order to carry out the intention of the legislature and further the important public interests which such statutes subserve." *352
The rule of reasonable construction is in accord with the frequent holdings of this court that questions involving government must not be determined along technical lines, but on the basis that practical and broad considerations should control. Woodbridge v. City of Duluth,
Respondent, as de facto city comptroller, is the officer charged with the performance of the duties contemplated by the legislature when it used the term "comptroller." Whatever may be the weakness in respondent's claim to legal title to the office of comptroller, he is comptroller in fact, and the only city comptroller of Minneapolis. As such, he is a de jure member of the board of tax levy as established by Sp. L. 1879, c. 338, as amended.
Writ discharged.
Dissenting Opinion
This proceeding in quo warranto is a direct attack on respondent's title to the office of member of the board of tax levy. His title to the office depends upon whether he is comptroller of the city of Minneapolis. Respondent admits that a vacancy occurred in the office upon the death of the incumbent, O.J. Turner. Under the charter of the city of Minneapolis, the office should be filled by an appointment by the city council. See, State ex rel. Peterson v. Hoppe,
There can be no doubt that an incumbent's title to a public office can be inquired into only in a direct proceeding by quo warranto instituted by the attorney general or by his consent. Ryan v. Hennepin County,
"* * * It is claimed that in this action we cannot look beyond the act of the officer, and investigate his title to the office, but that the order must be accepted as one made by ade facto officer, and as valid. This proposition, unconditionally accepted, would make valid the unauthorized proceedings of a mere intruder into an office; of any one who might assume, without the semblance of authority, to act, and thus leave us remediless against usurpation and the grossest injustice. While the question of strict title to an office can be inquired into and determined only by direct proceeding, andwhile courts will not, in a collateral proceeding, make suchinvestigation, they may and will make such inquiry as willestablish the line between the mere intruder into an office andone holding it under some color of title, some semblance ofright, — between him without any authority whatever and the dofacto officer.
"* * * We think the rule is that inquiry into the title to the office of a party acting therein may be pursued far enough, in any *355 case, to show whether or not he is a de facto officer, but further than this the investigation will not go in a collateral proceeding. The question here arises, what is a de facto officer? Generally there must be found some color of title,some semblance of right, to the office, either by some electionor appointment, though invalid, upon which the claim rests." (Italics supplied.)
Such an inquiry here shows that respondent has no title to the office and no semblance thereof. He is an intruder in a true legal sense, having no right of any sort to the office and making no claim of such right.
In State ex rel. Peterson v. Hoppe,
It is axiomatic that title to an office must rest upon election or appointment. Board of Education v. Civil Service Comm.
In State ex rel. Briggs v. McIlraith,
Courts have always exercised the power, as an incident to determining the validity of acts of public officers, of determining whether attempted delegations of official power were valid. Muehring v. School Dist. No. 31,
In short, there is neither claim nor basis for any claim by respondent of title to the office. The attempted delegation to him by the city council of the powers of the office and the exercise by him of the powers under such delegation are clearly illegal. Because that is true, I think we should make the writ peremptory.
