State v. Armstrong

54 Minn. 457 | Minn. | 1893

Dickinson, J.

This appeal presents the question whether the action of the common council of the city of Waseca in ordering the construction of a sidewalk in front of the appellant’s premises was legal and valid.

1. The “common council” consisted of five aldermen. Sp. Laws 1881, ch. 47. Four aldermen constituted a quorum for the transaction of business, but no valid action could be taken “unless four members concur therein.” Sp. Laws 1881, ch. 47, as amended by Sp. Laws 1889, ch. 47, § 4. The action of the common council here in question was at a meeting when only four aldermen were present. One of these was the president of that body. Such action was taken by a vote upon the question, which was put to the council by the president. The three other aldermen present voted “Yes” to the proposition for the construction of the sidewalk, whereupon the president announced that the same was carried. He did not otherwise declare his own vote upon the question. But thereafter, at the same meeting, a formal order was made and officially signed by all four of the aldermen, including the president, reciting the former action of the council, and ordering the sidewalk to be constructed. We are inclined to think that, independent of the formal order last referred to, the announcement by the presiding alderman of the carrying of the proposition voted for by the other aldermen is to be construed as expressing his concurrence ■ therein. We are to assume that the president knew the statute law governing the ordinary action of the body of which he was a member, and of which he was the official president; that without his own concurrence in the proposition it was not carried, and that the bare concurrence of only three aldermen was of no legal effect. We.are not pointed to any provision of the law which required the determination of the question by the common council to be expressed in any particular form, and, in the absence of such requirement, the presiding officer might express his concurrence with the vote of his associates by declaring the measure carried, when it could only be carried by his concurring voice or action. But, even if this were doubtful, the formal order of the common council at the same meeting, officially subscribed by all the aldermen present, so far expresses the fact that the presiding ■officer concurred in the action taken that the doubt is dispelled.

-(Opinion published 56 N. W. Rep. 97.)

2. While the common council were required to determine, before ■ordering the sidewalk to be constructed, both that public convenience would be promoted by the construction of the sidewalk and that the expense would not be disproportionate to the benefits, there was no necessity for their taking action separately upon each one of these questions.

3. We are not referred to any provision of the special law which rendered the approval or action of the mayor necessary. By the laws to which we have referred the common council was composed simply of the aldermen, and the “common council” had authority to require the sidewalk to be constructed.

Order affirmed.