(appellant) the state of minnesota upon the relation of
TRANSCRIPT
STATE OF MINNESOTA
IN SUPREME COURT
THE STATE OF MINNESOTA upon the relation of
Lyndon A. Smith as Attorney General, 7
Relator,
vs.
THE CITY OF ST. PAUL, Winn Powers, S. A. Farns-
worth, 0. E. Keller, Henry McColl, Anthony
Yoerg, M. N. GOSS, J. J. O’Leary, W. ‘C. Handy
as Comptroller of the City of Sig. Paul,
Respondents.
Brief of State'and Relator‘
Lyndon A, Smith, Atgorney General of the Staie of
Minnesota, pro se, Marcus D. Munn, Charles E.
Otis, Francis B. Tiffany, W. H. Yardley, John F.
Fitzpatrick, Frederick G. Ingersoll, Charles
Bechhoefer, ‘William G. Graves, and Gustavus
Loevinger, of Counsel.
O‘ H. O’Neill, Attorney for Respondents..
rm: PIONEER coumuw, s'r. nur.
I
INDEX
TO
BRIEF OF STATE AND RELATOR.
STATEMENT OF FACTS.
'I
THE PROVISIONS OF THE COMMISSION CHARTER_
WHICH PROVIDE OR ATTEMPT To PROVIDE FOR THE
ESTABLISHMENT, CONTROL AND MAINTENANCE OF THE
PUBLIC SCHOOLS AND THE PUBLIC SCHOOL SYSTEM or
THE STATE, AND REPEAL OR ATTEMPT "To REPEAL‘
SPEC. LAWS 1891, C. 36, WHEREBY THE CITY OF ST.
PAUL Is CONSTITUTED A SPECIAL SCHOOL DISTRICT, \
ARE INVALID IN THAT THEY VIOLATE CONSTITUTION,
ARTICLE 8, §§ 1 AND 3 AND ARTICLE 4, § 36.
(1) Legislation and decisions scheming
public schools and school districts. . 16
(a) Common, independent and Special '
school ' districts ........i . . .’. ;‘; 16
(b) School districts are state agencies—
quasi corporations . . . . .]......
(c) Questions relating to the establish-
ment, change anii dissolution of _.
school districts anti to their pow-
18
22
ers are legislative questions .....V
(‘1) Special school district of city of
St. Paul _. .‘.................. \
does not em- v
in framing .-
the public
cts. 32
26
(2) Constitution Article 4, ‘9 36,
pow'er cities and villagcs
charters to legislate for . .
school system and the school dish-1
(11) “Home Rule School Districts” not
authorized .....................
(b) Practical difficulties of Home Rule
School Districts ...............
(3) Constitution article 4, § 36, does not em-
power cities and villages in framing
charters to legislate for the taxes to
be levied in school districts .......... 40
(4) Scope of home rule charters ........... 42
(5) Department of education not a depart-
'ment of a city government .......... 51
(6) The practical construction placed on
Const. art 4, § 36 by the legislature and
, by the boards of freeholders is against
inclusion in a home rule charter of leg-
- islation for the public schools ........ 63
(7) Commission Charter a demonstration
that power to legislate for the public
schools was not conferred ........... 65
‘ ‘(S) Argument of inconvenience of no weight 70
II
THE MAYOR AND COUNCILMEN OF THE CITY OF ST-
PAUL ARE NOT LEGALLY AUTHORIZED TO_ EXERCISE THE
‘.‘UNCTIONs OF THE BOARD OE SCHOOL INSPECTORS AND
THE BOARD OF LIBRARY DIRECTORS OF THE CITY OF ST.
. .PAuL BECAUSE THE PROVISIONS OF THE COMMISSION
“ LÜHARTER UPON WHICH THEY BASE THEIR RIGHT ABE
I IN VIOLATION OF CONST. ART. 7, § 8 AND INVALID, IN
\THA’I‘ WOMEN (1) ARE THEBEBY DEPBIVED OE THE
‘RIGHT TO VOTE FOR THE OFFICERS OF SCHOOLS AND
'5 THE MEMBERS OE THE LIBRARY BOARD AND (2) ARE
MADE INELIGIBLE To HOLD THE OEEICES PERTAININC
To THE MANAGEMENT OF SCHOOLS AND LIBRARIES,
AND (3) SUCH PROVISIONS’WERE NEVER LEGALLY
ADOPTED.
1. Statement of Pertinent Legislation ...... 73
2. Analysis Of the legislation ..... r......... 76
3. The provisions of the Commission Charter
deprive women Of their right to vote.. . 80
4. The provisions of the Commission Charter
render women ineligible to hold the
offices ............................ 88
5. The provisions of the Commission Charter
relating to schools and libraries were
not legally adopted. . . . . . ._ .......... 91
III —
THE PROVISIONS OF THE COMMISSION CHARTER
WHICH PROVIDE‘THAT THE MAYOR SHALL ASSIGN
THE COUNCILMEN As COMMISSIONERS VIOLATE ART.
4, § 36, OF THE CONSTITUTIONOF THE STATE OF MIN— ,
NESOTA IN THAT THEY WERE NOT FRAMED IN CON-
FORMITY WITH THE PROVISIONS AND LIMITATIONS
OF CHAPTER 170 CE LAWS OF MINNESOTA FOR THE
YEAR 1909............................... . 98
The appendix to this brief is not available for online viewing as specified in the Minnesota Rules of Public Access to the Records of the Judicial Branch, Rule 8, Subd. 2(h)(3).
STATE OF MlNNESOTA
IN SUPREME COURT
THE STATE OF MINNESOTA upon ‘the relation of
Lyndon A. Smith as Attorney General,
, Relator,
VS.
THE CITY or ST. PAUL, Winn Powers, S. A. Farms-
worth, O. E. Keller, Henry McColl, Anthony
Yoerg, M. N. Gross, J. J. O’Leary, W. C. Handy)
as Comptroller of the City of St. Paul, ,
Respohdents._ 7‘
«
BRIEF OF STATE AND RELATOR. 4 ‚'
STATEMENT OF FACTS.
This is a proceeding by Writ bf quo rwarrantoy'
based on an information of the Attorney General: .
for the purpose of determining the constitutionality
Of certain provisions of an alleged charter of the,
City of St. Paul, and the right of the respondents
to exercise any rights, franchises, duties, PTiVfleges
01' authority in matters pertaining to education and
the public schools and theVpublic libraries in thev
2
City of St. Paul, and the franchises, powers and
duties of the officers of the City of St. Paul as a
special school district and of school and library
officers.
The respondents move the Court to quash and
dismiss the information and writ on the grounds
.that it appears on the face thereof: (1) that the
_ information and writ do not state a cause of action
against the respondents or either or any of them;
and (2) that they fail to show that the respond-
ents or either of them are usurping franchises,
duties or powers as officers of said special school
district, or as officers of said City of St. Paul, or
in relation to the public libraries of said city.
The facts alleged in the information and appear-
ing in the writ, briefly stated, are as follows:
The City of St. Paul is and for more than fifty
years has been a municipal corporation.
1 on May 1, 1900, the city adopted a home rule
charter pursuant to Const. art. 4, § 36, hereinafter
referred to as the Charter of 1900. This charter
was amended in 1904, 1906, 1908, 1910 and 1912.
The Charter of 1900 provided that the provisions
.‘ 0f SPEC. Laws 1891, c. 36, as amended by SpeC.
‘Laws 1891, C- 7, § 11, and as modified or amended
by Gen. Laws 1899, c. 29%, were thereby continued
_ in force. Under and by virtue of said Spec. Lawa
711891’? 36, and the amendatory acts, the City of
' Sf» Paul was duly organized and incorporated as
? “dis a Special school district, with power to con-
’ tract and be contracted with, to sue and be sued,
and vested with all the powers and rights specified
‘V “11“? general law of the state in relation to school
_ “Strietsrin all matters pertaining to public schools
3
~ in said city. By this special act the mayor of the
City of St. Paul was and is authorized andrequired
to appoint seven persons to be known as school
inspectors in said City of St. Paul, which board
of school inspectors was and is empowered to ex-
ercise all the powers vested by the special act or
by any general laws in any school district or in
the City of St. Paul as a separate and independent
school district. Pursuant to the special act there
have been ever since 1891 seven persons duly sap-\ _— V
pointed and qualified as said Board of School In-
-spectors, who acted as such until on or about June
1, 1914. ‘ '
Under and pursuant to chapter 12 of the Charter: „
of 1900, there was duly established in and for the '
city a Board of Library Directors of nine members;
duly appointed by the mayor of said city,’ fo (
management and supervision of all public libraries
reading rooms, museums and galleries of art in the '
ance and use thereof, with power, subject, ‘361,5
provisions of said chapter 12, to'control and EX‘
pend all moneys levied, collected or receive‘ifo‘,
“said purposes. Ever since the adoption ‘on 319110
Charter of 1900 there have been nine Person?”
appointed and qualified as said Board'ofr Library
Directors, who acted as such until onto abq
June 1, 1914. ' Ü '
The’ Charter of 1900, as amendedfistfom’ildr
has been and is the home rule chart? A f s l‘t
of St. Paul and is still the charter ,
cept for the facts hereinafterzstated;
those facts show that the Provisiofisio
4
ment thereto attempted and purporting to have
been adopted as an amendment to said charter on
or about May 8, 1912, and further excepting so
much and such of said charter as was not in har-
mony with the laws and constitution of the state.
On or about May 8, 1912, a proposed amendment
to the Charter of 1900, as amended, was submitted
to the male voters of the city at an election then
"""N
held at which more than three-fifths of said male \
voters voted in favor of its adoption, and the re-
sult of said election was declared, and duplicate
certificates of said amendment so adopted were
made, setting forth its provisions and its and their
ratification, etc. Said amendment, which is com— '
monly known as and is hereinafter referred to as
the Commission Charter, was proposed by a petition
signed by five per cent of such voters. At the elec-
tion all women were denied the right to vote and
none did vote upon or in reference to the amend
ment or any part thereof.
on May 5, 1914, an election was held under the
Commission Charter, at Which were elected the
fOHOWing, tO-Wit: as Mayor respondent Powers; as
(PomPtroller respondent Handy; and as councilmen
TCSPOndents Farnsworth, Keller, McColl, Yoerg,
Goss and O’Leary. They thereafter qualified as
such officers, and on June 1, 1914, entered upon the
Performance of the duties of said offices respectivel}7
as Prescribed, defined and authorized by the Com-
miSSion Charter, and have ever since continued to
exercise the same.
i UP?“ taking the oath of office respondent Pow-
?I'S; Professiug to act as mayor, assigned respondent
???‘? to b? Commissioner of Education, and he has
5
ever since [acted as such in accordance with the
provisions of the Commission Char-ten; ,
The Commission Charter, so adopted as an
amendment, contains provisions in violation of the
Constitution and laws of the state, among other
provisions thereof Const. art. 7, S 8, art. 8, §§ 1, 3,
and art. 4, § 36, and Laws 1909, c. 170; in the par-
ticulars set forth in the information and writ, which
will be covered in the argument and need net he
here enumerated, except the folloxving, under which
the other particulars are substantially embraced,
viz:
(1) That said Commission Charter provides for
the complete establishment, control, maintenance
and provision for the public schools, the public
school system and the general educational interests
of the City of St. Paul as a special school district;
and for the management and control of the'prop— \
erty of said city used for purposes of education? »
(2) That said charter contains no provision for
the submission of the same, or any part thereof; to‘
the women of the City of St. Paul who were of the
age of twenty-one years and upward; possessed of
the qualifications requisite to'male' voters.
(3) That by the terms of said Commission
Charter as now claimed to be’ and contain the
fundamental law of the City of St. Paul, the man-_
agement and control, of all matters pertaining to-
the Public schools and‘all the affairs of the school (
district of the City of St. Paul as created by 011,31)’
ter 36 of the Special Laws of Minnesota for 1891,
or as otherwise created or existing, were VEStEd
in the said councilmen and said mayor who com-
DOSe, according to the charter not; and since June
( * 1, 1914, treated as in effect in said city, the council
of said city, and are, according to said Commission
Charter, elective officers. That by the terms of
said Commission Charter the said council is made
the library board of said city. That by reason
thereof all women in said city are denied the right
to vote at each and every election which may be
held under the provisions of said charter for the
purpose of choosing officers of schools and members
of the library board of said city, and are made
ineligible to hold any oflice pertaining to the man-
agement of schools or of libraries.
(4) That said Commission Charter attempts to
vest in the mayor the power to determine, and the
designation of, from the members of the council,
‚' ' ' \ the heads of the departments, to-wit: Commis- \
' _ V sioners, of said city and particularly the head of
the department of education, called in said Com—
mission Charter the commissioner of education.
The respondents by and under the terms of the
Commission Charter are acting and assuming to
act in respect to the said particulars set forth so
far as relates to matters pertaining to education,
schools and libraries contrary to the constitution
and laws.
V From the foregoing it is manifest that the ques'
tions to be determined in this case are not only of
the most serious importance to the City of St. Paul:
but that they are of state wide concern, involving
° V a they do the scope and powers of home rule char-
? ‘tere and the public school system of the entire
' State, and the rights of all Women in the state to
“it f9rischool and library officers and on $011001
and library matters and to hold office in connec- ‚ I
tion therewith.
ARGUMENT.
I.
THE PROVISIONS OF THE COMMISSION
CHARTER WHICH PROVIDE OR ATTEMPT
\ To PROVIDE FOR THE ESTABLISHMENT,
CONTROL AND MAINTENANCE OF THE_
PUBLIC SCHOOLS AND THE PUBLIC ,
SCHOOL SYSTEM OF THE STATE, AND RE-
PEAL OR ATTEMPT To REPEAL SPEC. LAWS
1891, C. 36, WHEREBY THE CITY OF ST. PAUL
7 IS CONSTITUTED A SPECIAL SCHOOL DIS- f
TRICT, ARE INVALID IN THAT THEY V1011: '
LATE CONST., ART. s, §§ 1, 3, AND ART, M-
36’ —
Sections 1 and 3 of article 8 of the constitution
provide as follows: “ ';
“The stability of a republicanrform of gov
ernment depending mainly upon the iinteUl
I . gence of the people, it shall be the duty of the:
\ legislature to establish a general and uniform M
System of public schools.” Const. art. 3.: _§ 1
“The legislature shall make such prqylSlon
by taxation or otherwise, as; With the???“ "
arising from the school fund, Willfiecure
thorough and eflicient system of public schools
in each township in the stattet“; 3
By these provisions, which _
the Constitution since its adOPtiQI'f ‘, „ ..
\ ance of the public schoolsvis mde;“‘mtier5 M” of
local, but of state concerm'and the @
8
taining the public schools is imposed upon the
legislature.
“The maintenance of public schools is a mat-
ter, not of local, but of state concern. When
the Constitution of Minnesota was adopted,
its framers inserted these two provisions
(quoting art. 8, §§ 1, 3). ' " " The ob-
ject of these provisions is to insure a regular
method throughout the state, whereby all may
be enabled to secure an education which will
fit them to discharge intelligently their duties
as citizens of the republic.’ Board of Educa-
tion vs. Moore, 17 Minn. 391, 394 (412, 416).
These provisions were not a grant of power to
the legislature, for all the powers there men-
tioned would have existed without such grant.
They were inserted as a mandate to the legis-
lature, prescribing as a duty the exercise of
this inherent power.”
1 Associated Schools vs. School District No.
‘ 83, 122 Minn. 254, 257.
Section 36 of article 4 was adopted as an amend-
ment to the Constitution in 1896, and was itself
amended in 1898 by the addition of the provision
authorizing the submission of amendments of the
charter upon petition of five per cent of the voters.
The following provisions of Const. art. 4, § 36, may
be here referred to:
“Any city or village in this state may fralile
- * , ‘ _ . a, charter for its own government as a on}!
A "- « consistent with and subject to the laws of this
state as follows: * ' * Such charter shall
be submitted to the qualified voters " ' _ '
and if four-sevenths " " " shall ratlfy
the same it shall * * ' become the char-
__ ; ter of such city 01‘ village as a, city, and Super’
—g sede‘ any existing charter and amendments
thereof; " * * Before any city shall
incorporate under this act the legislature
shall prescribe by law the general limits
within which such charter shall be framed.
* * * such charter shall always be in
harmony with and subject to the Constitu—
tion and laws of the State of Minnesota.
The legislature may prescribe the duties
of the commission relative to submitting
amendments of charter to vote of the people:
" ' " The legislature may provide general
laws relating to afiairs of cities, the applica-
tion of which may be limited to cities of over
fifty thousand inhabitants, or to cities of fifty
and not less than twenty thousand inhabitants,
or to cities of twenty and not less than tefi/
thousand inhabitants, or to cities of ten thous }
and inhabitants or less, which shall apply
equally to all such cities of either class, auf
Which shall be paramount While in force it
the provisions relating to the same matter in-
cluded in the local charter herein provided ??
for.” » * ‚
It follows that if it is competent in a city Char’
ter adopted pursuant to this amendment of the
constitution to provide for the management and ,
Control of the public schools, it is because the
amendment has conferred the power of direct legis-
lation in the premises upon the voters of the cities .
and villages, thus ‚by implication repealing to this
extent the provisions of sections 1 and 3 of article 8.
The amendment does not confer this power by its
express terms, but, on the contrary, confines the
power to the framing of a charter for “government
as a city,” and moreover expressly provides that _
the charter shall be in harmony with and su'bJect
0 sec- „ \to the constitution, thus makilig itygybjeqt t
tions 1 and 3 of article 8;
12
Thompson, 168 Mich. 511, 134 N. W. 722, 725,
726.
Public education is peculiarly a matter of state
concern in a state which, like Minnesota, admin-
isters a vast constitutional trust school fund and
.contributes to the financial support of all the
school districts, and which consequently is directly
interested in all school expenditures and concerned
that the school funds “shall be faithfully applied
to the specific objects of the original grants or
appropriations.” Const. Art. 8, § 2. The perma-
nent school fund, arising from the sale of school
lands and of timber from the school lands, and from
the royalties of or from school lands, was $24,-
655,000 at the beginning of the fiscal year; and
eventually, it is estimated, it will exceed $100,000,-
000. The state also grants to the public schools
_ special aid, amounting to $2,000,000, from its gen-
eral revenue fund. For the state, without plain
constitutional warrant, to loose its hand and to
turn over its trust funds to other than state agen
cies would be nothing short of a breach of trust.
The duty of the state to administer state school
I funds through its own agencies is forcibly set forth
in a Kentucky case:
“In this state the subject of public educa-
tion has always been regarded and treated as a
matterof state concern. In: the last Constitu-
tion, as well as in the one preceding it: the
' most explicit care Was evinced to Promqte
. public education as a duty of the state. EG‘
sides setting apart a very considerable capital,
. sum as an inviolable asset of the school fund’
, \the Constitution provides: ‘The General A8-
seinbly shall, by appropriate legislation; TWO’
13»
uide for an ejficient'system of common schools
throughout the state.’ Const. § 183. In
obedience to that requirement the General As-
sembly has provided a system of common
schools, in connection with other branches of
public education. «* * * The school funds
raised directly by the state for common school
purposes are apportioned ratably among them
all. In the cities the government of the public
schools is committed to boards of education.
Each city of certain'classes, including the
class to which Louisville belongs, is made a
separate school district. * * * Nor does
the state take its hands off the control of the
school system, by allowing, or by. requir-
ing, the different localities to take steps
toward supplementing the general appro-
priation by local taxation. The school
is none the less a state institution for that
matter. If the public schools of Louis-
ville were local aflairs, over which that munic-
ipality had the sole control, it may be doubted
if it would be competent for the state to leoy _
a taac on its other citizens to help support
them. But they are not municipal institutions
at all. It was so held in City of Louisville vs.‘
Louisville School Board, 119 Ky. 574, 84 S. W.
729, 27 Ky. Law Rep. 211; Id., 32 S. W. 406,
17 Ky. Law Rep. 698; Bamberger Bloom &
00. vs. City, 82 Ky 337, 6 Ky. Law Rep. ‚2533
The city schools, including high schools, are
part of the state’s common school System
Their trustees are ofiicers of the state. Such
is the effect of the decision in City oi Hender-
mn vs. Lambert, 8 Bush. 610, and)“ Combs
vs. Bonnell, 109 s. W. 899, 33 Ky- LW Rep‘
219.” \ , : I v . , 134
City of Louisville .vs. Commonwealth,
Ky. 488, 121 s.-W. 411,112.
14
The reasons for keeping the school districts,
which are the agencies of the state for the admin-
istration of the public school system and the ex-
penditure of the state’s school funds, distinct and
apart from the cities, which are organized for strict-
ly local government and convenience, are obvious.
(1) It is necessary to keep them apart, in order
to secure uniformity in the school system. (2)
It is necessary to keep them apart, in order that
the schools may be managed by officers selected
for their fitness to do that work, whereas if the
' same officers are to manage the schools and to ad-
minister the city government, their special fitness
as school oflicers will inevitably be sacrificed to the
securing of men having different qualifications from
those required for the peculiar work of administer-
ing the educational interests. (3) It is necessary
to keep them apart, in order to remove the edu-
cational interests from politics, to remove them,
as this court has said (State vs. Henderson,.97
Minn. 369), from “political manipulation,” in order
that public education may not become “a city func'
tion, exposed to the taint of current municipal
politics and to any. and every general mismanage'
ment that may prevail in city departments” (Gum
nison vs. Board of Education, 176 N. Y. 11; 68
, N. VE. 106, 110), and in order that the state’s school
— ‚' finds shall be faithfully, wisely and economically
administered and shall not be subject to the danger
{of being misapplied,
These great purposes the people of Minnesota
“fight to secure and safeguard by inserting in the
— ‘1);constitution a mandate to the legislature prescrib-
ing as a duty the establishment of a general and
uniform system of public schools and the making of
provisions therefor in every township by taxation
or otherwise and by the income arising from the
school fund, and by a mandate that the income of .
the school fund “shall be faithfully applied.” It is
only where the system of public schools is subject to V
the jurisdiction of a single legislative body thai
there can be uniformity. How would it be possible
to have uniformity if the cities and villages in home
rule city charters may legislate for the public school
I system, thereby reorganizing and abolishing school ,
districts, and subjecting the management of the
schools to Whatever peculiarities and eccentricities
may for the moment strike the fancy of the'framers
of a charter and the voters may adopt as incident
to the adoption of a charter which maybe other-5v
wise commendable, however vicious in these re-‘g
spects? How Will it be possible to secure school;
oificers selected for their peculiar fitness is such '
if a home rule charter, as in the present instance, .
makes the mayor and council the’school oificers?
How will it be possible to keep the schools out
of city politics and to insure the faithful applica-
tion of the state’s funds to their‘propel' ObjECts'
under a charter which entrusts, the educational V
interests of the state to a'mayor and 601111611: the”
l by subjecting these interests and the school funds 3
to the danger of the “political manipulatmn” ‘md
log rolling which, unhappily, Sendo’? are “sem. in:
the administration ofi'cities? y \ ‘ “
A charter Which should 'mölfé bompletely gab?”
the evils in these respects Which the consmutlon’has designed to make impossible could hardly be
framed. This will appear in mm “tall m the
16
course of the argument. It is enough to say here
that if the provisions of this charter which relate
to the schools should be sustained, the men and
women of St. Paul will suffer from the evils of a
system of school administration whose violation
of the principles which should govern the adminis-
tration of the public school system and of the
state’s school funds is without parallel, and the
door would be opened to the creation of similar
evils throughout the state. We believe that we do
not exaggerate when we say that no commission
charter adopted in any other state has attempted
to merge the educational interests in the city ad-
ministration, and that no other commission charter
has attempted to legislate for the schools.
‘The entire legislation of the state with respect
to the public schools and the school districts since
the adoption of the constitution would exclude any
implication that it was the intention of the home
rule amendment of the Constitution to grant the
power to [legislate for the schools, even if the ex-
press language of the amendment did not exclude
that implication. Before proceeding to a discussion
of the amendment, it is proper, thereforey to re‘
» , view the history of legislation with respect to the
school districts, as well as to speak of the status
of the City of St. Paul as a special school district.
(1)
LEGISLATION AND DECISIONS CONCERN—
ING PUBLIC SCHOOLS AND SCHOOL
DISTRICTS.
(a) Common, independent and special school
districts.
17r
In the exercise of the duty imposed by Const.
art. 8, §§ 1, 3, the legislature has divided the state
into districts for school purposes, to—wit, common
school districts, independent school districts, and
special school districtsg—the common school dis-
tricts and the independent chool districts being
created and governed under and by the ‚general
laws; and the special school districts being created
by special laws and governed thereby, except in so
far as those special laws by their terms make the
general laws applicable to the special districts and
except in so far as general laws have been enacted
which by their terms ‘are made applicable to the
special school districts. '
Board of Education vs. Moore, 17 Minn. 391
(412);
Curryer vs. Merrill, 25 Minn. 1;
Schroeder vs. City 0f_St. Paul, 115 Minn.
222;
Associated Schools vs. School District No.
83, 122 Minn. 254.
This classification into common, independent and
special districts has existed for over half a century.
Gen. St. 1866, c. 36;
Laws 1873, c. 1;
Laws 1877, c. 74 (Gen. St. 1878, c. 36);
Gen. St. 1894, c. 36. . .
Laws 1877, c. 74,, entitled “An act to establish
and maintain a system of public schools in the State
Of Minnesota,” which remained the law, with some
amendments, until the enactment of R. L 1905,
contains the following provisions: _
“Every commonschool district in this state,
How established, or which may be hereafter
formed, set off or established, and every inde-
pendentand special school district now organ-
‚v„‚_.__‚i‚„w‚7wfl„‚ „@
18
izcd or created, or that may hereafter be or-
ganized or created under any law of this state,
is hereby declared to be a body corporate,
with power to contract or be contracted with,
sue and be sued. " ' ' Gen. St. 1878, c.
36, § 1.
“School districts shall be classified as fol-
lows:
First—Common school districts, including
all districts not embraced in either of the two
following classes.
Second—Independent school districts, in—
cluding all districts now organized as such, or
that may hereafter be organized under chap-
ter seven of this act.
Third—Special school districts, including
all districts now organized as such, or that
may hereafter be organized wholly or in part
under any special law of this state.” Id. c.
36, § 2.
<. „ ' The same classification of common, independent
"‘ i ‘ ' and special districts is carried out in R. L. 1905.
R. L. 1905, c. 14, & 1280 (Gen. St. 1913, § 2671)
provides as follows:
=» “ “For school purposes the state is divided
into common, Special, and independent school
districts, each of Which shall be a public cor-
poration.”
(b) School districts are state agencies—41W”i
corporations.
School districts are mere agencies of the state
—_‘—’creatéd by the legislature as parts of‘the Public
i, school system. The legislature has declared that
every school district shall be a public corporation-
"sehöol districts, however, are not municipal cor—
porations proper, but quasi municipal corporations.
;1
___-_1_1j
19,
The distinction between cities and villages, ‚which
receive a charter from the state and are municipal
corporations proper, and school districts, which,”
like counties and towns, consist of political div-
isions of the state, created for convenience for the .
exercise of the public.duties devolved upon them,
and are quasi corporations, has always been recog. ‘
nized.
School District vs. Thompson, 5 Minn. 280
(221) ; f ' ' *
Board of Education vs. Moore, 17 Minn.
(391) 412, 417; ‘ “
Currie vs. School District, 35 Minn. 163,
165; ' „ > —
Bank vs. Brainerd School District, 49 Minn.
106. » '
See also Dodsall vs. County of Olmstead,‘ _ > \
30 Minn. 95, 98; ,
Altnow vs.. Town of Sibley, 30 Minn; 185; ‘
190;
Kellogg vs‘: Village of Janesvflle, 34 Minna. , r
132 ;‚ „ \ „ } '
Weltsch vs. Town of Stark, 65 Minn.‘ 5, ‘7 ;
Dillon, Mun. Corp. 5th Ed.,Ԥ 1638; " ' ,
McQuillan, Mun. Corp., §§r111,"2605,'2675.
“Such districts [special school districts] are
a part of the public educational system of «the
state, established in pursuance of the Constltu-
tion, art. 8, € 1, Which makes itrthedu‘ty of the , , ' '
d uniform -
( The ‘ defendant‘
legislature to establish a general an
system of public schools:
school district stands on the same ‘footing‘, as
3: Part 0f the educational system of the state,
as common school
ent [districts.]/Board of Education
vs. 1:03;;
17 Minn. 412 (391)? Theyrare all mag]; snore
Corporate,Withrlim‘ited'pow
ers,_for Mc
Convenientand efl’ectual
exercise of the pu
districtsand independ
- ' ‚
„„‚A V
20
duties devolved upon them, and to promote
the object of their creation and organization.
' ' ' The management of the public
schools is one branch of the state government,
for which, Within the limits of the district,
they (such schools) are incorporated. The
school districts declared by the general law
to be bodies corporate are quasi corporations.
invested with corporate powers sub mode, and
for a few specified purposes only. The object
is the control and management of the public
schools Within a certain territory. They
stand on the same footing as counties and
towns in respect to liability to individuals for
the breach of official duty by their officers.”
, ( ' 7 ' Bank vs. Brainard School District, 49 Minn.
106, 108.
_ “They [school districts] are mere agencies
& of the state, brought into being in aid of the
' ' civil government of the state in the adminis-
tration of the local aflairs of the districts in-
corporated.”
Jordan vs. Board of Education, 39 Minn.
298, 299.
A school district is none the less an agency of
the SWE, although it is a special district the boun-
. ** ' f ' daries of which are coterminous with the boundaries
Of a ci'fii’and although by the special act creating
the district officers of the city are given certain
Powers and duties with reference to the school af-
r r < ' ‘ _ fairs, as; for example in the St. Paul special school
' ; district where under Spec. Laws 1891, c. 36, the
V 4303301‘ aPPoints the members of the board of school
I ‘lnspectors, and the city council and other city
7 %omcel's have certain powers in respect to the con-
‘traCtE Of the school district (post p. ——). In other
‘words, in such districts the legislature saw fit to
\
21 , .
make city oflicers to that extent agents in the con-
duct of the affairs of the school district. In the
performance of its duty to provide for the public
schools the legislature had the power to select such
agencies as it saw fit, but by availing itself of cer-
tain of the city oflicers for this purpose it did not
make the board of education a department of city
government in any proper use of the term, although
in one or two cases, in which these provisions of
the constitution were not involved, the board of
education is inexactly spoken of as being a depart-
ment of the city government. These cases Will be
referred to later. It is obvious that the fact that
the legislature has appointed city officers to aid in
the management of the affairs of the school district
does not make the schools a matter of city concern,
or deprive them of their character as agencies of
the state. '
Kuhn vs. Thompson, 168 Mich. 511, 134 N.‘_ '
W. 722; , .
City of Louisville vs. Commonwealth, 134
Ky. 148, 121 S. W. 411, 412; _
City of Louisville vs. Board of Educatlon,
154 Ky. 316, 157 S. W. 379, 380;
Stuessy vs. City of Louisville (Ky), 161 S.
W. 564, 567. ’
This is clearly stated im the Michigan case al-
ready quoted: ‚ \ — ,
“School boards have been uniformly held
be separate and distinct corporations2 It has
also been held that they are municlpaldco;
porations and state agencies. "" 1317:4353
tion in Michigan belongs to the state.
not part of the local self-g
in the township or municlp
as the legislature may choose
oeemment inherent
ality except so fa!‘
m make it such.
WWW," ‚ , „A
22
The Constitution has turned the whole subject
overtothe legislature. * * "
“The school district of Detroit is co-ex-
tensive in geographical (limits with the city.
Each is an‘independent public corporation.
Public corporations organized for the same
purposes, with the same rights, powers and V
duties, could not exist in the same territory
(Scrafford vs. Gladwin Sup’rs, 41 Mich. 647,
2 N. W. 904); but Where they are organized
for different purposes, have diferent rights
and duties relating to entirely distinct mat-
ters, they may and often do occupy the same
7 territory, working in harmony each within the
scope of its authority. In such cases the
burdenof maintenance falls, as a rule, on the
same persons and property, and for such cor-
porations to be so organized as to co-operate
in the conduct of their several affairs and avoid
duplication of agencies essential to each tends
to economy and convenience. It is well settled
thatrmahing a person an ea: ofiicio ofiicer of
one organization by virtue of his holding of-
fice in another does not tend to merge the two
organizations. People vs. Edwards, 9 Cal.
286; People vs. Ross, 38 Cal. 76; Hemingway
vs. Stansell, 106 U. S. 399, 1 Sup. Ct. 473,
' 27 L. Ed. 245.” Kuhn vs. Thompson, 168
Mich. 511, 134 N. W. 722, 726, 727.
, (€) Questions relating to the establishment,
Change and dissolution of school districts and to
their powers are legislative questions.
QIn thus establishing the school districts, ‘88
x agencies of the state, the legislature may make the
' districts different in size, grade, corporate Powe-rs
franchises, as may seem to the legislature best
under ditferent_circumtances and conditions. The
.23, V
legislature might, therefore, before the constitul
tional amendment prohibiting special legislation,
by special laws create special school districts to ‘7 "
meet particular and exceptional cases, and prei
scribe for them separate and distinct regulations,
specially adapted to them, and not to the others .
The questions in all such cases are legislative—4
questions of legislative polity. _‘
“The rule of uniformity contemplated by '
this constitutional provision which the legis- ,
lature is required to observe, has reference to „' ,
the system which—it may provide, and not to
the district organizations that may be, estab- ,
lished under it. These may difier in respect *
to size, grade, corporate powers and fran-
chises, as may seem to the legislature best,
under different circumstances and conditions;
but the principle of uniformity not violated, _ \
if the system which is adopted is made to have '
a general and uniform application to the en-'
tire state, so that the same grade or class of ‚
public schools may be enjoyed by all localities * '
similarly situated, and having the requisite
conditions for that particular class or grade. v ; „
Hence, the establishmentpunderour general " r,
laws, of common school districts and inde-V *
pendent school districts—twodistinct classes - ,
of organizationsin respect to size, population,
grade and corporate powers, though alike 111
most of their functions, in theirpnbhcchar:-
acter, and in affording upon hke terms‘the
means for obtaining acommon school educa-
tion to all residentSCholars of the requisifi
age—is not in violationof the constitutlp
n
. . \ , ,
provision now under consuier
atlon.
Irrespective, however,
of these coniideläggng
it is certain that the imposmon (zu :cfion
to
not a limitation of.power.
. _The I r \ p I
\
24
establish a general and uniform system of
public schools neither prohibits nor restrains
the legislature from providing other public
schools, in addition to those included in the
general system, or from creating, as it has in
several instances, by way of exception to the
general uniformity, special school districts, to
meet particular and exceptional cases. The
right to create and establish different classes
and grades of public schools and school dis-
tricts necessarily involves the right to pre-
scribe, for each, separate and distinct regula-
tions, specially adapted thereto, and not ap-
plicable to the others. For these reasons, the
enactment in question is not invalid because
its provisions are confined in their operation
to the ordinary common school districts of
?‘ the state.” Curryer vs. Merrill, 25 Minn. 1.
See alsorAssociated Schools vs. School District,
/ 122 Minn. 254, 257, 258.
. . V In most cases, doubtless, the boundaries of a
' city or village are coterminous with the boundaries
of a particular school district, but this is not always
so. The flegislature has made provisions regulating
the manner in Which the boundaries of existing
districts may be changed or enlarged, or two or
. ~ — j more districts consolidated, or one or more dis-
) tricts annexed to an existing district, particularly
* ' providing for the case where a village or city of
7,000 or less inhabitants has within its limits a
school district, or is wholly or partly included with-
in the boundaries of a school district, or when any
school district includes with/in its boundaries part
7 or the whole of (my village or city of 7,000 inhabi-
tants or less (G. S. 1913, § 2677) ; provid-
ing “ for- the case where the territory afiected
, \ l \“ WM‘ &‘
25
lies in two or more counties (Id. § 2682) ; reg-amt.
ing the manner in Which the boundaries of school
districts may be changed when two or more villages
are included therein (Id. § 2678); regulating the
manner in which districts may be consolidated,
Where in one district is maintained a state, graded,
semi-graded or high school (Id. § 2686) ; providing
the manner in which a common or special district
may be changed to an independent district (Id. §
2698); providing the manner in which an inde-
pendent district may be dissolved, and may change ,
its organization to that of a common school dis-
trict (Id. § 2702); and providing for the appor-
tionment of the property and liabilities of the re—
spective districts when the boundaries of a district
are changed, or a district is formed ‘from the ter--
ritory of two or more, or a district is divided.
‘Id. 2677, 2684, 2688, 2695, 2696, 2697.
“School districts, being quasi corporations, are
under the control of the legislature. They may
be changed and divided at the legislative will, and
property may be thus transferred from one organi-
zation to another.” Connor vs. Board of Educa-
tion, 10 Minn. 439 (352), per McMillan, J. .
The questions when ‚and under what conditions
schodl districts may be organized, or dissolved, or
consolidated, or their boundaries may be changed:
are legislative questions. I
State’vs. Independent School District of
Village of Newport, 42 Minn. 357; “
State vs. Cooley, 65 Minn. 406; _
Irons vs. Independent School Distl'lc
119 Minn. 119, 122; ‘. ' “
Sehweigert vs; Abbott, 122 Minfl- 38
1; No. 2,
3, 337. r
The legislature may provide that an independent
district may be dissolved upon the condition that
the requisite number of the voters of the district
shall have voted therefor in the manner prescribed,
but this is not a delegation of legislative power, for
when the condition arises the district is dissolved,
not by the voters, but by the legislative act itself.
State vs. Cooley, 65 Minn. 406, 408.
‘(d) Special School District of City of St. Paul.
' In 1891 was enacted Spec, Laws 1891, c. 36, ap-
proved April 3, 1891, and entitled:
“An act to abolish the board of education
of the City of St. Paul, and to repeal an act
to amend and consolidate the several acts re
\ lating to the board of education of the City
of St. Paul, approved February twenty-sixth
(26th), one thousand eight hundred and
eighty-seven (1887), and an act to amend sec—
tions four (4), nine (9), ten (10) and eighteen
(18) of an act entitled ‘An act to amend and
consolidate‘the several acts relating to the
board of education of the City of St. Pauly
approved February twenty-first (21st), A. D‘
4 one thousand eight hundred and eighty-nine
(1889), and providing that the City of St.‘
' Paul shall constitute a single independent
"school district and exercise all the powers
heretofore vested in the board of education of
the City of St. Paul.’ ”
* „ The above act was amended by Spec. Laws 1891:
c‘ 7: § ‘11: by Providing that the “president of the
board of education” shall be taken and construed
to mean ‘the “president of the school inspectors,”
- and the “board of education”, shall be taken and
construed to be the “school inspectors.”
27
By Spec. Laws 1891, c. 36, the City of St. Paul
is made “a separate and independent school dis-
trict, with power to contract and be contracted ‘
with, sue and be sued, and With.all the powers'
and rights specified in any generaldaw of/the'
state of Minnesota in relation toschool districts 7
in all matters pertaining to the public schools in
' said city.” “Those poWers shall] be exercised by '
and through said board of school inspectors solely >
under the legislative department of the govern— r ;
ment of the City of St. Paul, except as in thi ‘5 T ‘ ’
act otherwise provided.” “The board:of inspectors,
shall, as the head of the executive branch of the
government of the City of St. Paul, have power to ' \ "
execute all the powers vested by this act; orjbyr r 4
the general laws of the state in any schqoldistrict,’ .
and no other powers.” The board has no power
to make contracts for school sites,‘building's’-or {
supplies. or to purchase; and the council tie
xtermines each year in advance the eXpendjtures for _‘
school purposes for that year; but the board has ‘;
?full authority over the management of the schoolsggl
the selection and salaries of teachers,,the care of ‘
Property of the district, and the courses of study. ‘
The board consists‘of seven membersfiwho must
mayor for terms of three years, aprbififments Of
three, two, and two members in’successive years
being made on the first day of March in each years '
s0 thatrthe first appointments are made bye new
mayor nine months after taking 0 _ _
ity of the board does not consist ofvhiS’aPP'Dmtees
until three months before the exlfil'äüiimW,f ms term
In 1900 the city of_ St. Paul :‚qupFed,a Chart?
; be qualified electors, and Who are appointed by the “ “
ffice,andamaJ'01‘" ‘ ’
'Ä
28
framed by a board of freeholders, pursuant to
Const. art. 4, § 36. This board, which included able
lawyers, among them a former justice of the Sn-
preme Court and a former attorney general, did not
attempt to legislate for the schools. The Charter
of 1900 (chapter 11, § 1) provides that Spec. Laws
1891, c. 36, as amended, is “continued in force,” viz:
“The provisions of chapter 36 of the Special
Laws of Minnesota for the year 1891, entitled
[setting forth the title of the act,] are hereby
continued in force, as amended by section
eleven (11) of chapter seven (7) of Special»
Laws of Minnesota for the year 1899. Said
chapter 36 is in the language following :”
Thereafter follows Spec. Laws 1891, c. 36, sec-
tion for section; and in the same manner Spec.
Laws 1891, c. 7, § 11 and Laws 1899, c. 40, above
referred to, are set forth.
The City of St. Paul is (1 Special School
District.
“The City of St. Paul is a ‘special’ school
district, though the term ‘independent’ school
district is used in the special law which organ-
ized it. By Laws 1873, p. 52, c. 1, § 3, school
districts are classified as follows: (1) Com‘
mon school districts, embracing all districts
organized under title 1, c. 36, of the General
Statutes. (2) Independent school districts,
embracing all districts organized under title
3 of said chapter 36. (3) Special school dis-
tricts, embracing all districts organized Whol-
1y or in part under any special law of this
state. The same classification is carried out
“ in chapter 74, p. 115, Laws 1877, and 3831“
in section 1280, R. L. 1905. It is clear that
the city of St. Paul, being a, district organized
under a special law, is a special school dis-
’ trict.” \
29
Schroeder vs. City of St. Paul, 115 Minn, r 7222, 225. '
The opinion in the above case then goes on to
say that “as such school district it has the powers
specified in the city charter.” And later, in the
opinion, the Court uses the language following:
“Having thus considered the charter provisions re-
lating to the powers and [duties of the St. Paul
board of school inspectors, it fairly appears that the
charter, which was in 1900 adopted by the people as
a home rule charter, attempts to provide fully for
the educational system of the city,” etc.’ It is to \
be observed that it was immaterial to the decision
of the case whether Spec. Laws 1891, c. 36, was a
part of the charter, or derived its force and effect,
as we confidently submit, solely from its enactment
by the legislature. The opinion, after showing that
“the City of St. Paul, being organized under a spec-
ial law, is a special school district,” analyzes Laws
1891, c. 36, but speaks of it as a part of the “city
charter.” This was natural, since'it was in fact
printed in the charter, and has of‘course, ordinal-1:1}7
been so referred to. The question Whether a home
rule charter can legislate for the public SChOOIS was
n°t involved and has never been presented to the
Court,, r
The Opinion contains a brief anaylsls and state-
‘ me” of the powers of the special school district of
' St‘ Paul, Which may be conveniently quoted as
Setting forth its frame of government
“As such school district it hasthe poweil':
sPecified in the city charter [that 1s ‘to 53330”-
Spec. Laws 1891, c. 36]: ‘Power ls 0
30
tract and be contracted with, sue and be sued,
and with all the powers and rights specified
in any general law of the State of Minnesota
in relation to school districts, in all matters
pertaining to public schools in said city.’
These powers ‘shall be exercised by and
through said board of school inspectors solely
under the legislative department of govern-
ment of the city of St. Paul, except as in this
act otherwise provided.’ (c 11, §473) The
board of school inspectors ‘shall, as the head
of the-executive branch of the government of
the city of St. Ifaul, execute all the powers
vested by this act, or by the general laws of
the state in any school district, or in the city
of St. Paul as a separate and independent
school district, and no other powers.’ The
charter gives the board the exclusive control
of fixing the amount of salary to be paid to
each teacher or employee, but gives the com-
mon council power to reduce the aggregate or
total amount of salaries for the ensuing year.
The board reports to the council when new
schools are required, but it is for the councfl
to order the purchase of sites and the erection
of buildings. The title to school property is
vested in the city, but the board has the care.
custody, and control thereof. Alt is provided
that the board of inspectors ‘shall have 110
power or authority to create any indebtedness
against the city of St. Paul, or to pledge the
faith and credit of said city in any respect
Whatever until after the common council or ,
legislative department of the city government
has, by ordinance, ordained what'the expen'
ditures for school purposes in said city for
the school year Shall be, and then only to the
extent 'of the amounts so Set apart.’ (C- 117
M79). It is provided that all supplies for
* the board of inspectors shall be purchased by
I
!,
L
’ with reference to the schoOl affairs
31
\
a committee, consisting of the mayor, the'pres.
ident of the common council,'and thecity
treasurer. „ — * _ r
The charter does not expressly give the
board of inspectors any power or'authority in
reference to the selection or adoption of school-
books. But it would doubtless have such pow- ' _
er, even in the absence ofcharter or legislative , » V
provisions. It is a power that is essential to
the proper execution of the board’s duties as
‘an executive head of the city government,’ «
in charge of the schools, and such power is
really given, as seen when reference is made
to the ‘general laws,’ which specify the powers
vested in school districts; the charter giving
the board the powers conferred by» any such ‘
law on any school district. * * * ; r
The central idea of the system seems to'be _ \
that the board has full authority over the ‚?
management of the schools, the selection and
salaries of teachers, the care of the property
of the district‘and the courses of study. It }
has no power to make contracts, whether for, ‘ \ \ \ . _ 7
school sites and buildings or for supplies, and, „ ; r ‘_ " &
no power to purchase. The council deterrnines , r \ :»! 7 _ ‚
each year in advance what the rexpend1tures l \ »
for school purposes, for thatr'year shalhbe;
Within limits prescribed by the charter [1_~ 9-
Spec. Laws 1891, c. 36]. The board_eX91'CISes
the powers conferred upon the dlstrlct-solely .
under the common council, except 3.5 1,“ t,“
charter [Spec Laws 741891,}: 3611V9th91fY/lsg
provided.” ‘ ' ' " „ & . ‘ t;
It is to be observed that hy the 81590121 act freu
ing this district, Whose boundaries are cotermlllous.
with those of the city, the ‘legislatur‘? gave t;
lain officers of the city céi'tain'POWers and u
‘making those
agents in the
City Ofiicers to that extentithe' state’s
32
conduct of the affairs of the school district. In the
performance of its duty to provide for the public
school system the legislature had the power to
select such agencies as it saw fit. But by availing
itself of these officers for that purpose, the legis-
lature, as has been pointed out (ante, p. —) did
not, and could not, make the board of education
a part of the city government, but on the contrary
made the city officers to that extent a part of the
state agency which it established.
(2) '
CONST. ART. 4, € 36 DOES NOT EMPOWER
CITIES AND VILLAGES IN FRAMING
CHARTERS TO LEGISLATE FOR THE PUB-
LIC SCHOOL SYSTEM AND THE SCHOOL
DISTRICTS.
The Commission Charter attempts to provide for
the establishment, control and management of “the
public schools, the public school system and the
general educational interests of the City Of St-
Paul as a special school district,” and to provide
for the levy of taxes and the appropriation of
money for the support of schools. By the frame of
government which the charter attempts to adopt
the management and control of the public schools
is vested in the council, with one of its members,
‚who is assigned as'commissioner of education by
the mayor, as the chief administrative officer, and
Who has, subject to the direction and control of the
council, even broader powers than were conferred
upon the school district by the legislature. The
33 . r
mayor and councilmen are elective oflicers, so that
a separate election of school officers cannot be had,
since the ofi‘icers who manage the schools are those
who also manage the city. The effect of this would
of course be 'to eflect a complete merger Of the
school district and the city, and to supersede and
repeal the special act which created the special dis--
trict and defined its powers and duties. See Com-
mission Charter chap. 19, §§385~399.
If these provisions are valid, it must be because
the home rule amendment of the constitution con—
fers upon cities and Villages the power to legislate \
directly for the public schools and the public school
system within their boundaries.
In the plain und unambiguous words of this
amendment, to-Wit: “any city or village in the state a
may frame a charter for its own government as a
city,” it is impossible to find any such, power. , «—
Not only is it impossible sorto read these werds“,
as to give them such a meaning; but the amendment
itself declares that “such charter shall be m har-
mony with and Subject to the constitution?” thereby
declaring that the charter shall be subject to sec-1
tions 1 and 3 of article 8, which impose upon the
legislature the duty of establishing a general and
uniform system of public schools, and of making
‘weh Provisions by taxation or otherwise as With
the income from the school fund Will secure‘a thor—
ough and efficient system of public schools in 93011
township in the state, and under which it 1s held
(1) that the public schools are a matter; 1109f“
local, but of state concern, «(2) that'the school (:::
tricts are agencies of the statey/‘md (g)—.that
questions which concern the’creatlon 0
f school dis- '_
Aw:
„___..„A.
__
34
tricts as agencies of the state and the powers of
school districts are legislative questions.
The distinction between cities and villages, on the
one hand, and school districts, on the other, is
found in all the legislation of the state since its
admission, has been recognized by the courts, and
is embodied in the constitution. It is not to be
assumed that in adopting this amendment, which
declares that any city or village may frame a
charter or its own government as a city, the people
of the state intended, in spite of its plain terms,
* to change the established policy of the state in
respect to the public schools, which imposed the
duty of providing for a general and uniform system
upon the legislature. The only change in the policy
of the state has been in the direction not of less,
but of greater, uniformity in the public school sys-
tem, when the people in 1892 adopted the amend-
ment of Const. art. 4, §33, forbidding local or spe-
cial laws regulating the affairs of or incorporating
any school district, or creating the offices or pre-
scribing the‘powers and duties of the officers of *
any school district, or fixing or relating to the
compensation or salary of the officers of any school
district, or fixing or relating to the mode of election
01' appointment of the officers of any school dis-
trict.
“Home Rule School Districts” Not Authorized.
t V » “ The legislature enacted nine years after the
EV . 7 ‚_ Liv '‚ ‚_ _ adoption of Const. art. 4, §36, that “for school pur-
; > “ _ ' Poses the state is divided into common, special and
‘Fi—Ä’ “ _ 7 . ‘X independent school districts, each of which shall
i i: w A V bea public corporation.” R. L..1905, §1280-
35 ;,
If Const. art. 4, 536, could be interpreted as was
granting the power to legislate for the schools, it
would mean that every village\as well as every city
in the state could, ’by direct legislation, contitute '
itself a district of a new kind,—a school district *
which for convenience may he described as a “home
rule school district,” that is, a school district created
and governed by a city charter,—thereby abolish- ‚> ‚
ing the former school district or, in some cases;
districts or parts of school districts within its bonny _ „ “
daries, and not only multiplying many fold the ;
number of school districts not created and governed, V ‘ '
under the general laws, but permitting these dis-
tricts to be organized without the restraining pow-7 ‘
er formerly exercised in the creation ’of’special
districts by the legislature, which had the power}: ) “
and the duty of determining how far in'viewvof‘ the
particular conditions the special school districts
might depart from the general and uniform :sys-
tem elsewhere prevailing. _ ' 7': ; s 7:3.‘ ‚ ,
Although it is said in Currier vs. Bell, supra, that _ 1 . v ‘
the rule of uniformity which the legislature is re, V '
quired to observe has reference tothe SyStem which ' * '
it may provide and not to. the districtfirganiza'f
tions which may be established under it: the 091.11" , '
ion makes it clear that it is the duty Öf ‘the, leg” ' * _ V __
lature to determine, as to the legislature may seem; . _ _’ « * '
,best, how far the districts may difier in their PQW“ ‘\ 4 "
ers and duties consistentlywith the appliwtlon °f(
a general and uniform system (adapted to the vary- ‘
ing circumstances conditionS) thlfoughouäthe
state. These being legislative,questionsgquestloftll
of legislative policy, theVPI'iDCiPIe _Of ‘meormflai', V -
would be hopelesslylost if_the question _of hour, ‚— }
36
the districts might difler, consistently with a gen.
eral and uniform system, were permitted to be de—
cided in the home rule school districts by as many
legislative bodies as there are cities and villages in
the state.
If the policy of the state established by the Con-
stitution is to be thus changed, it must be by an
amendment of the Constitution which declares that
intention in clear and unmistakable words. Such
an intention is not shown by words which say that
any city or village “may frame a charter for its
own government as a city.”
Practical Difficulties of Home Rule School Districts
J Even if the language of this amendment were not
so clear as by its very terms to exclude the power
to legislate ‘for the public schools, still other con-
siderations would show that this power was not
intended to be conferred. For example, a city or
' & > village adopting a home rule charter may not ex-
tend its powers and jurisdiction to territory out-
side its boundaries, its power and jurisdiction being
_ . confined to its own internal afiairs. City of Duluth
‘ 7 "vs. Orr, 115 Minn. 267. The territory within the
boundaries of a city or village, however, or even a
part of such territory, may sometimes form part
of a larger school district, embracing other terri-
‚ tOI‘y, so that the formation of a home rule school
district by such a city or village, if the power had
been granted, would withdraw from the school dis—
trict the part of its territory lying within the city
01‘ Village limits; but the Withdrawal of a part of a
, district is a matter of concern to the part WhiCh
remains. “Such a power,” the Court has said, With
y
(37
reference to the power of a village to -withdraw
from an independent school district, “to be exer-
cised at the mere arbitrary Will of a part of a dis-
trict, without regard to the interests of the re-
mainder, the latter being given no voice in the
matter, should not be upheld, unless it is'plainly
conferred by the statute.” State vs. Independent
School District, 42 Minn. 357. '
Again the legislature has provided for the appor—
tionment of the property and liabilities of a district
When it is divided, but these provisions of course
apply only when the division of the district is made
in the particular proceeding authorized by the
statute. ,
Again, the legislature at its last session, created a
commission, to be known as “the public, education
commission,” Which has the duty “to make careful '
study and investigation of conditions in this state
With respect to public education, including the pub— \ {
lic school system and public educational institu-
tions, and the relation of the educational institu-
tions one to another and to the public school Sys‘
tem;” and “to recommend a general PIan for the
organization and administration of P1117119 “1303'
tion and public educational institutions/f ,
Laws 1913, c. 571. '
The questions which have been set for the Com-
miSSiOH to study and answer; and the fundamental
COIJSiderations underlying any reorganization of
the 3011001 System, have been well presented ni a
Statement of its plans and recommendations,whlch
are to be more precisely set forth in its report to
the legiSIaturein a bill now in course of prepar-
‘b.
„
16, 1914.)
“Minnesota has from time to time asserted
deliberately, in the constitution and through
legislative enactment, that all public educa-
tion is the concern of the state. The state
.contributes to the financial support of all dis-
tricts and is interested in the results of all
) educational effort. Certain elements of edu-
» “ cation—the common schools—the state guar-
antees to all; others—the University and ex-
tension courses—it furnishes to all who will ‘
have them; others, like the courses in agricult- / '
ure, manual training, and home economics, it
promotes and encourages wherever they are
entertained. Provision for training.)r teachers.
_ _ in the normals or otherwise, is made by the
_» * state.
' Contributing to all school districts, and to
all forms of educational activities, the state is
7 directly interested in all school expenditure;
r ' ' it concerns the state that educational funds \ * '
shall be spent to the best advantage. Contrib-
I , , M uting to special purposes, the state is directly
' interested in that outlay and may properly go
11 into details as to how the money is spent and
_ for What.
Particularly the questions have been set for
the Education Commission to study and an-
_ sWer as best it may:
‚„ „ * » _’ ß— 1. What is the ‘best organization of the
* " ' state school system?
'2. What is the best method of administer-
« V V: „ ing the districts?
\ ' , 3.. What is the/fairest basis of distributing
_ . state aid?”
_ has been announced by this Commission
- "that it will recommend to the legislature,> , r . \ among other things, that all special districts
38, l
ation. (Department of Education, Circular No. }
39"
except those in the three largest cities :shall be
come independent districts under the general laws;
that the form of organization by independent dis-
tricts shall apply universally to allrbut the rural’
districts and the three largest cities; and “that all
the territory of each county outside the independ-
ent districts shall constitute a common school dis-
trict; that its government be lodged in a common
school board to be elected by the district, and that
first among its duties the board shall have the re
sponsibility of choosing asuperintendent of schools *
for the district who shall have the capacity and
authority to put the rural school in every respect \
within its means on an equal footingr'with the best
city schools.” (Ibid. p. 7.) I" f
In the interest of‘uniformity, efficiency and the
faithful and economical administration of the g
state’s school funds, the legislature may deem it to _ „ _
be its duty, as it is Within its power, to legislate „
on the lines recommended by the‘commission; and, "
assuming that it should do so,'let it be c6nsi’dered ',
What might be the effect upon this uniformiplan if
it were held that the power existed in every city
and village to create a home rule school district. „‘
In that event, it would be possible not only7 for a
city or village to convert the independent districts
into. home rule districts, but it‘ would be possflile
for any city or village Withinlthe newly created
common school district to form a’ home rule school~
district out of it part thereof, faiul thugto Morgan-4. ,
ize and disarrange the legislature’s uniform Plan‘ , .‘
4 To anticipate all the‘incongruities’all _ ! ces ‘
difficulties that would‘arise if/‘citieél 31111 V1] Sam.
had the power to legislatelfol' the 50110013 an _’ >
d.practical‚ „ _
4.0
create home rule school districts is impossible; but
these examples may well give the Court pause
when it is asked to say that the power has been
granted. Every consideration points irresistibly
to the conclusion that the broad hand of the legis-
lature still covers the entire field of the public
schools, that its jurisdiction is exclusive, and that
there is no concurrent jurisdiction in the cities and
villages to legislate on these matters.
(3)
CONST. ART. 4. §36, DOES NOT EMPOWER
CITIES AND VILLAGES IN FRAMING
CHARTERS TO LEGISLATE FOR THE
TAXES TO BE LEVIED IN SCHOOL DIS-
‘ TRICTS.
Const. art. 8, §3, provides that the legislature
shall make such provisions, by taxation or other-
wise, as, with the income arising from the school
fund, will secure a thorough and efi‘icient system
of public schools in each township in the state
Questions as to the rates and amounts of taxes to
he raised for school purposes are thus legislative
« questions. See State vs. Babcock, 87 Minn. 234:
237.
\
In, pursuance of the duty imposed by the consti-
tution, the legislature has enacted a complete
— scheme of tax legislation as follows:
R. L. 1905, §871 (Gen. St. 1913, §2053) provides
that “there shall be levied annually on each (101-
:lar of taxable property * * * taxes at the
rate specified as follows: * * * 4. For
411
school district purposes, such amounts as are pro-
vided in chapter 14.” Chapter 14 provides as fol-lows: In common and independent districts the
taxes cannot exceed certain specified rates; while
“in special districts such amounts may be levied as
may be allowed by special law at the timewhen
the Revised Laws take efect.” R. L. 1905, §1414,
as amended 1909, c. 458, 1913, c. 36 (Gen. St. 1913,
§2917). In districts having 50,000 inhabitants
(comprising the special districts of St. Paul, Min-
neapolis and Duluth) taxes for certain school pur- '
poses may be levied for additional amounts at spe-
cified rates “in addition to other sums for school
purposes authorized by law” (that is, authorized
by the special acts under which the districts are
constituted). R. L. 1905, 51415, as amended 1907,
c. 308, 1913, c. 270; (Gen. St. 1913, &2918.) See
State vs. Minor, 79 Minn. 201. Additional provi-
sions are also made for taxes in districts having
not less than 20,000 nor more than 50,000 inhabi-
tants (1911, c. 24; Gen. St.,‘1913, 592919, 2920);
in certain special districts having 10,000 and not
more than 20,000 inhabitants (1913,, c. 115; Gen:
St. 1913, §§2921) ; in special districts. having
less than 3,000 inhabitants (1911, c. 23$; Gen- St—
1913, §2923) ; and in certain special districts whose
boundaries are coterminous With‘those of a no
of the fourth class (1913,01 7?’ Gen‘ Stilgß’ .
552924, 2925).»
)
From the foregoing legislation, Which provides
for each Of the three classes of school districts 1:11?
which the state is divided for ?dwffl N°“?thatL. 9280; Gem St. 1913, @071), it IS manifes
42
it was not the understanding of the legislature that
the home rule amendment empowers cities and vil-
. lages in framing charters to legislate for the taxes
to be levied in school districts. “It is universally
declared and admitted that municipal corporations
can levy no general or special taxes, upon the in—
habitants or their property, unless the power be
plainly and unmistakably conferred.’ Dillon, Mun:
Corp., 5th Ed. 51377. The right of a school district
to levy a tax must be clearly found in the statute;
if there be a fair doubt as to its existence, it must
be denied. Marion & M. Ry. Co. vs. Alexander, 63
Kan. 72, 64 Pac. 978.
It is to be observed moreover, that R: L. 1905,
_ §1414 (Gen. St. 1913, 2917), which provides that
in special districts such‘amounts may be levied as
may be allowed by special laws at the time when
the Revised laws take effect, recognizes and declares
that these special districts shall continue to be gov-
erned by the special acts under which they were
constituted by the legislature. This statute was
enacted nine years after the adoption of the home
rule amendment, and was re—enacted, with amend-
ments, in 1909 and 1913, and is conclusive of the
legislature’s interpretation and practical construc-
tion of the home rule amendment in this regard. V
See also Gen. St. 1913, §§2919-2925. >
As will appear,'the Commission Charter attempts
to legislate for the taxes to be levied in the special 7
> school district of St. Paul. Post, p. 68.
(4)
SCOPE OF HOME RULE CHARTERS.
' 1 The Court has said that the power and authority
V ; HV’ ’\ J’
conferred by Const. art: 4, §36, upon cities to’irame. " l f 1- ‘ 3 v
their own charters extends to all subjects and mat- \ .
ters properly belonging to the government of muni- ‚\ ' .‘ ‘«
cipalities, and includes any subject appropriate to
the orderly conduct of municipal afiairs. 7
State vs. O’Connor, 81 Minn. 79 (organization '," " i
of police force). ' ' , ‘ \ ' ‘
See also State vs. District Court, 87Min—
153 (condemnation of land). )
7146, ?
State vs. District Court, 90 Minn. 457 ( preseiita—V \ *
tion of claims against city, auditing and allowing \ ;‘ _
the same, and manner and proceedings for revising yr
the action of the auditing body). > V . . . .‘
Grant vs. Berrisford, 94 Minn; 45 (contractor’s
bonds); _ n y ‘
Wolfe vs. City of Moorhead, 98 Minn. 113 (localn
assessments); g - >’ „ , .
Peterson vs. City of Red Wing; '101VMinnL./62V’
(notice of claim for damages) ; ; f 4 : "
Turner vs. Snyder, 101 Minn. 481 (local‘asselss-
ment); — ‚:, «mit „« H
State vs. Board of Water & Light Commissionfi ‚)
ers, 105 Minn. 472 (regulation of supply Of,gafi.)i' .
Schigley vs. City of Waseca, 106 Minn-:94 (11013169
of claim for damages). ;.‘ ‘ ‘f ‘3
In the light of the facts in the above cases, When
all involved matters appropriate to the govemment
of cities, the general rule therein declared by the;
court can have no broader-meaning thanjthat the
powers and authority extends to allgsubJects am: „
matters properly belonging‘tmthegov‘fmment1:) _ (
Cities and includes any:subject aPPFOPHate ”gli: \ I „ „
orderly government of city afiairs.‘;'1t Was on -
, . — . - the .BXpI'ess‘ground that the rrlghlt to Pféfided fol: \ r
44
exercise of the power of eminent domain was sus-
tained in State vs. District Court, 87 Minn. 146,
153, the Court saying: “Such right is essential and
necessary to the very life and well being of city
government.” In none of the cases which have
.arisen under Const. art. 4, §36, is to be found any
expression which in any way intimates that the
public schools and the school districts belong to the
government of cities or that they may be included
in the charter. On the contrary the Court has said
that the limitation that such charter shall always
be in harmony with the constitution and laws of
the state forbids the adoption of any charter pro-
visions contrary to the public policy of the state
as declared by general laws.
Grant vs. Berrisford, 94 Minn, 45, 48;
See also State vs. Robinson, 101 Minn. 277,
283; '
American Electric Co. vs. City of Waseca,
102 Minn. 329, 334.
It is the public policy of the state as declared
by the constitution and laws that “the maintenance
of the public schools is a matter, not of local, but
of state concern.”
The school districts being agencies of the state
and their officers being state officers, the same rule
applies to them and to their officers as applies to
the municipal courts and their judges; and it iS
held that a special municipal judge, being a state
oificer, cannot be legislated out of office, nor his
term be shortened, by the adoption of a home 1'1118
charter. State vs. Fleming, 112 Minn. 136. 111
that case the Court said:
“The subject, and the character of the duties
' 0f the municipal judges and other rnunlcll)all
45
officers is Well defined. In_ the one case theyare in the interests of the state; in the otherconfined to the interests of the municipality."
The proposition that the constitutional grant of
power to cities to framelcharters for their govern-
ment as cities does not include poivers not appein
taining to the government of a city is forcibly il-
lustrated by
State vs. Missouri & K. Telephone Co., 189 Mo.
83, 88 S. W. 41. r ‘
The Missouri constitution provides that any City ;
having a population of more than 100,000 “may
frame a charter for its own government, “consist-
ent with and subject to the Constitution and laws
of the state.” An enabling act, providing the means
for cities to avail themselves of this constitutional
privilege, provided that such city should have exclu-
sive control over its public highways, streets, etc.
The enabling act also provided that it should be, ‘
lawful in such charter to provide for regulating and :
controlling the exercise by any person or corpora-
tion of any public franchise or privilege in any of
the streets or public places of such city, or by or
under the state or any other authority. Under thls
act and constitutional provision, Kansas City,
adopted a charter, literally, embodying the above
Provisions of the enabling'act.2 The charter also
provided that the city should have power by Ol‘dm'
ance to regulate the prices to be charged by “919'
Phone companies, and to compel them and all Per‘
sons and corporations using, controlhng or mafiag'
ing electric wires for any purpose to Put and €?
their Wires under ground, and’to regalate the ma
46
ner of doing the same. The general welfare clause
of the charter authorized the city to pass any ordi—
nance that “may be deemed expedient in maintain-
ing the peace, good government, health and welfare
of the city " ' " or that may be necessary and
proper for carrying into effect the provisions as
this charter.” It was held that, while the enact
ment by the city of an ordinance fixing the maxi-
mum rate to be charged by telephone companies
for telephone service in the city was expressly au-
thorized by the charter, the state had not delegated
to the city the power to exercise such authority in
framing its charter, and that the ordinance was
void; that the regulation of the price to be charged
' by a corporation with a franchise of public utility
character is‘within the sovereign power of the state
granting the franchise or suffering it to be exer-
cised within its borders, which power may be con-
ferred upon a municipal corporation, but that it is
not a power appertaining to the government of a
city, and does not follow as an incident to a grant
of power to frame a charter for a city government.
The above case is an especially strong illustra-
tion of the rule that powers not appertaining to the
government of a city do not follow as incident to
the constitutional grant of power to frame a charter
for a city government, since the power there in
question was one which the Missouri legislature
might have conferred upon the cities by the enab-
fing act. A fortiori power to legislate for the
. public schools and school districts does not f0110W
_ as incident to the constitutional grant of power to
frame'a charter for a city government, since the
“ Powerand the duty to legislate for the P111011C
47," ,‘
schools is placed by the constitution of— Minnesota
in the legislature and the home rule amendment of
the constitution declares that “such charter shall
always be in harmony with and subject to the con‘
stitution.” '
The proposition that,the Minnesota home rule )
charter amendment of the Constitution does not
empower the framers of a charter for the govern-
ment of the city to legislate for the public schools
is strikingly supported by the decisions in Gali-
fomia. * [ «
In California also the constitution imposes upon
the legislature the duty of'providing for “a system
of common schools,” and prohibits local or special
laws with reference to municipal corporations.’ In
pursuance of the constitutional direction the legis-
lature, in the Political Code, made provision for the ‘
organization of school districts and the election of
the officers thereof. The legislature further, enacted ’
that every city should form a school district; that
boards of education should be elected in cities, un-
der the provisions of laws governing such cities,
and that their powers‘and duties should be such
as prescribed in such laws, except as otherwise pro-
vided; and conferred substantially the same POW‘
ers and duties upon such boards of education as
Upon the trustees of school districts,—thus provid-
ing by general laws for two classes of school dis»
tricts. In 1892 an amendment tothe constitution
was adopted which authorized any city having over
3,500 inhabitants to: frame a charter “for its OW11
government,” consistent with and subjéct to the
constitution and laws of the state: it being pro‘
48
vided that the charter should be prepared by a
board of freeholders and that after ratification it
should be approved by the legislature.
The decisions concerning the powers of a city
which has adopted a home rule charter with re-
spect to the public schools are significant, for they
hold (1) that the school system is a matter of
state concern, and not a municipal affair, (2) that,
notwithstanding the adoption by a city of a home
rule charter making provision for the board of
education with designated powers and duties, the
existence and legal character of the school district,
although its boundaries are coterminous with those
of the city, are not affected; (3) that the school
district and the city are distinct, the school dis-
trict deriving its authority directly from the legis-
lature, and the city deriving its authority from the
charter; (4) that the functions of the city under
such a charter in respect to the public schools are r
* simply to furnish the officers who compose the gov-
erning body of the district, boards of education
being elected in cities under home rule chartersg
as well as in those organized under general laws
or formerly created by special laws. (5) that the
functions and powers of the school district are
those given to it by the act under which it was cre—
ated; (6) that, although the charter may plll‘pOI‘t
to define the powers and duties of the municilml
officers in reference to the public schools in the
same language as is used by the legislature in the
Political Code, yet those powers and duties are
- ‚V referable to the legislative authority, and not to
‚the Charter; and (7) that the constitutional all-
thorization of any such city to frame a charter
49
“for its own government” imposes a limitation,
which implies that the city’s authority is restricted
to its own officers, and that it cannot extend the
authority of its officers to subjects that have been
placed by the constitution exclusively within the
control of the legislature, or that have been con-
fined by the legislature to the management of other
officials..
Kennedy vs. Miller, 97 Cal. 434; 32 Pac.
558;
Hancock vs. Board‘of Education, 140 Cal.
\ 554; 74 Pac. 44; ’
Los Angeles City School District vs. Long-
den, 148 Cal. 380; 83 Pact 246.
In Kennedy vs. Miller, supra, the Court said:
“Article 9 of the constitution makes educa—
tion, and the management and control of the / V
public schools, a matter of state care and sup-
ervision. * * * The legislature is directed, _
in section 5, to provide for ‘a system of com- ,
mon Schools”; and section 6 declares that ‘the
public school system shall include primary and .
grammar schools, and such other (of certain
designated) schools as may be established by
the legislature, or by municipal or district ,
authority.’ The term ‘system„’ itself, imports ‘
a unity of purpose, as well as an entirety of
Operation; and the direction to the legislature
to provide ‘a’ system of common schools means
one system, which shall be applicabltho all
the common schools within the state— ' " "
Section 157670f the Political Code declares
that ‘every county, city, or incorporated tovvu.
unless subdivided by the legislative authorlty
thereof, forms a school district.’ By Virtue.“
this legislative authority, each school distinct ,
becomes a public corporation, an its functions
and powers as such corporation are tho-‘39
50
which are given to it by the act under which
it is created. The legislative declaration that
every incorporated city is a school district
does not import into the organization of the
school district any of the provisions of the city
charter, or limit the powers and functions
which, as a school district, it has, by virtue of
_ > the Political Code. The city is a corporation
7 ' , distinct from that of the school district, even
' though both are designated by the same name.
and embrace the same territory. The one de—
‘ _ rites its authority directly from the legisla-
.- ture, through the general law providing for
the establishment of schools throughout the
state, while the authority of the other is found
in the charter under which it is organized;
— ' and even though the charter may purport to
„ ' define the powers and duties of its municipal
, — * ; officers in reference to the public schools in the
K— “ / same language as has the legislature in the
V ' Political Code, yet these powers and duties are
referable to the legislative authority, and not
' to thecharter. * * *
Section 1616 of the Political Code declares
that ‘boards of education are elected in cities
under the provisions of the laws governing
such cities, and their powers and duties are as
prescribed in such laws, except as otherwise in
\ ' this chapter provided’; and, in the municipal
' government act, provision has been made fOI'
boards of education in cities that may be or-
’ 'ganized under that act. By the expression, I
‘the laws governing such cities,’ is meant the
charter of the city, or the power under whiCh
the city acts and exercises its authority, wheth-
er such power be such as was originally con‘
‚ferred by special charter prior to the adoPüm1
_ ‚__ —of the present constitution, or such as has
' < 15 & _‘ ; ‘been conferred by the general law providing
51 »
for the-organization of cities, and accepted
by the elty, or such as is embraced in a charter . ’
framed by freeholders of its own selection, and '
ratified by the legislature. The ‘boards of
education’ ‘thus provided for in cities is but
another term for the ‘boards of trustees,’ to
which the control of school districts has been
given; and by section 1617 the same powers
are conferred upon each, eweept in certain
enumerated instances.’ * * * _ ' -
The provisions in the charter of the city
of San Diego that all moneys belonging to the
school fund of the city shall be deposited with
the city treasurer cannot, as we have seen, '
supersede the requirements of the Political
Code, that all moneys pertaining to the public
school system shall be paid into the county _
treasury. * * * A consideration of the _ . *
functions of the city government relative to
the county government will show that the pro-
visions of the charter cannot have the effect
contended for by the appellant, The consti-
tution has authorized the city to frame this
charter ‘for its own government,’ and this limi
tation implies that its authority is restricted to
its own officers, and the inhabitants within its \
territory, and that it cannot extend the author-
ity of its officers to matters outside of its ter-
ritory,-or to subjects that have been placed by
the constitution exclusioely within the cow 7
trol of the legislature, or that have been con-
fined by the legislature to the management Of
other officials.”
„ (5) r « ‘i „
DEPARTMENT OF EDUCATION ‘NOT A_ DE-
PARTMENT OF A CITY GOVERNMENT.‘
The respondents'willperhaps contend that the
52
provisions of the Commission Charter in respect
to the public schools in effect provide for a depart-
ment of education, and that a department of edu-
cation is a department of city government, and con-
sequently that it was proper for the charter to pro-
vide for the establishment and administration of
that department, under R. L. 1905, § 751 (Gen.
St.‚1913‚ § 1345). And, in support of this con-
tention, they will perhaps rely on dicta found in
City of Winona vs. School District, No. 82, Win-
ona County, 40 Minn. 13;
Jackson vs. Board of Education, 112 Minn. 167.
Pursuant to the provision of Const. art. 4, § 36,
that “before any city shall incorporate under this
act the legislature shall prescribe by law the gen-
eral‘ limits within which such charter shall be
framed,” the legislature enacted Laws 1903, c. 238,
entitled
“An act relating to the framing of its own
charter for its government as a city, by any
city incorporated prior to the adoption of Ar-
ticle IV, Section 36, Constitution of Minne—
sota, of any village desiring to be incorporated
as a city, and to the amending of any charter,
already or hereafter adopted by any City 01'
any village, for its government as a city, under
the provisions of Section 36, of Article IV of
the Constitution of Minnesota, and of any stat-
utes enacted in pursuance thereof.”
The provisions of this act were incorporated in
‘R. L. 1905, §§ 751-758, which, with :wbsequent
amendments are Gen. St: 1913, §§ 1345-1350, 1353,
Gen. St. 1913, § 1345, provides as follows:
“Such draft shall fix the corporate name and
the boundaries of the proposed city, and Pro‘
53 , .
vide for a mayor, and for a council consist:
ing of either one or two branches; one in either
case to be elected by the people. Subject to
the limitations in this chapter provided, it
may provide for any scheme of municipal gov-
ernment not inconsistent with the constitution,
and may provide for the establishment and ad-
ministration of all departments of a city gov-
ernment, and for the regulation of all local
municipal functions, as fully as the legisla-
ture might have done before the adoption of
sec. 33, art. 4, of the constitution. It may omit
provisions in reference to any department con-
tained in special laws then operative in said
city or village, and provide that such laws, or
such parts thereof as are specified, shall con-
tinue in force therein. It may prescribe meth-
ods of procedure in respect to the operation of
the government thereby created, and the duties
thereunder of all courts and officers of the
district and county in which the city is situ-
ated, which duties such courts and ofiicers
shall perform. * * * Nothing in this
section shall authorize a change of bound-
aries.” \
If this section means that the power to “provide
for the establishment and, administration of all
departments of a city government and for the regu-
lation of all local municipal functions” includes the
power to legislate for the public schools, the section
clearly violates Const. art. 4, % 36‚'which confers no _
$11011 power. The words of the section, however, ex-
Press no such meaning, since “the maintenance 0f
the public schools is a matter, not of local; I?“ ‘?f
state concern,” and a department of education 15
not a department of a city government.
54
In City of Winona 178. School District No. 82,
“ Winona County, supra, it appeared as follows:
By Spec. Laws 1878, c. 155, entitled, “An act for
the establishment and regulation of the public
schools in the City of Winona,” and acts amend-
atory thereof, it was provided, as stated in the
opinion:
“That the territory within the corporate lim-
its of the city of Winona shall constitute one
school-district for the regulation and manage-
ment of the public schools in said city, to be
under the direction and control of a board,
whose members are to be elected at the char-
ter election, two for each ward, and one for
the city at large, to constitute the ‘board of
education of the city of Winona.’ The city
council must approve and ratify every contract
made by the board for the purchase of any site
for a school-house. The board has to submit to
the city council annually an estimate of the
amount of money necessary to defray the ex-
penses of the schools, which is subject to their
.approval; and, to raise the amount as thus
approved, the council levies a tax on all the
property in the city, which is collected in the
same manner as other city taxes, and the
money paid over to the city treasurer. The
\ title to all school property is to be taken in
the name of the city; and, when sold, deeds are
to he made in its name as grantor, and signed
by the mayor, and countersigned by the city
recorder.”
( In 1887 was passed an act (Spec. Laws 1887:
‘3- 5) entitled “An act to amend the charter of the
City 0f:Winona,” which extended the limits of the
, City so as to include a part of the defendant school
district, embracing a certain school house. This
V
55
act contained no express provision changing the
limits of the school district, and none as to the
disposition of the school property. Plaintiff brought
action for the recoveryof the school-house and
site, and it washeld that judgment was properly
ordered for defendant, on the ground that where
part of the territory of a'municipal corporation 1s
separated from it by annexation to another, or by
its erection into a. new corporation, unless some
other provision is made in the act authorizing the
separation, the old corporation (not being _abol—
ished) remains subject to all its liabilities, and ‘re-
tains all its property, including that which, upon
the change of boundaries, happens to fall within
_the limits of the other corporation. The Court,
before deciding the latter point, discussed the ques-
tion whether the annexed territory remained a part ;
of the defendant district, or had become a part of
the city of Winona “for school as well as for other
municipal purposes,’ and held'that by its annexa-
tion to the city the territory was detached from, : —’
and was no longer a part of, the defendant district.
After stating the provisions'of Spec. Laws 1378, c.
155, as above, the Court (Mitchell, J.), said: &
“These and other provisions of theact which
might be referred to show beyond all doubt
that its purpose was to adopt o polw , and not
' a mere arbitrary geographical line, and that
this pOIicy was to establish a uniform school
system, not for the territory then happening
' ' ' ' ' hat
t b h the c1t but for the City, W
o e Wlt my’ whether enlarged
or
d that the boa/rd
d with certam_
ofr’the depart-
ever its area might be,
diminished in the future; an
Of education, although inoeste
limited powers, should be OM
(war; IP
56
merits of the city government, much like a
board of public works or park commissioners.
Hence any territory annewed to the city be-
comes a part of it for school as well as for
other municipal purposes. To hold otherwise,
in view of the provisions of the act of 1878,
would lead to much confusion and many incon-
gruities. Take, for example, this very case;
If the territory annexed to the city remains a
part of the defendant district, the inhabitants
would be entitled to take part in the election
of members of the board of education of the
city, and their property be taxed for the sup-
port of city schools, in the benefits of which
they would have no part. We are therefore
of opinion that by its annexation to the city
this territory was detached from, and is no
longer a part of, the defendant district. Con-
nor vs. Board of Education, 10 Minn. 352.
(439).”
It is to be observed, that in discussing the ques‘
tion whether the territory was detached, the Court
made the answer turn upon the question, whether
the purpose of the earlier act (Spec. Laws 1878,
C. 155), which provided that the territory within
the limits of the city should constitute one school
district, was to adopt a policy, and not a mere
‘ arbitrary geographical line; and the court inter-
preted the act as adopting a policy to establish a
. uniform school system for whatever territory might
at any time be embraced within the limits of the
‚city. This policy was of course indicated by the
provisions of the act, that the school district was
to regulate and manage the public schools in the
city, that the members were to be elected two from
each ward, and one at large, that the city council
must ratify the contracts of the board, etc. The
57‘
Court summed this up by the inenact expression
that it was the policy of the act that “the board
of education, although invested with certain limited
corporate powers, should be one of the departments
of the city, much like the board of public works or
park commissioners.” These words can of course
have no broader meaning than is required for the
decision of the question there under consideration.
In Jackson Us. Board of Education, supra, it
appeared as follows: In 1878, the legislature passed
an act (Spec. Laws 1878, c. 157) entitled “An act
relating to the government of the free schools of
the city of Minneapolis,” which established Minne-
apolis, as a school district and declared the board
of education a corporation. In 1889, the legislature
passed an act (Spec. Laws 1889, c. 33), which de-
clared that the city attorney of Minneapolis should
have charge of all legal matters connected with the
city government, and all the several heads and de-
partments thereof, naming the board of education '
and other boards, and provided further that none
of the boards named should employ 01' pay any
attorney for legal services. This act was entitled
“An act to amend the charter of the city of Minne-
apolis.” It was held that the act was not in con-
flict with Const. art. 4, § 27, requiring the subject
Of an act to be expressed in its title. The Court
(O’Brien, J.) said: &
“It is true, as urged by plaintiff, that the
Cor orate entit of defendant is separate and
distgnct from tyhat of the city, butthat fact
alone does not establish the invalidity, as ap-
plied to defendant of the prohibitlon found 111
the act amending the charter of the city. For *
. 58
the purpose of imposing regulations upon the ,
public corporations, whether organized under ,
general or special acts of the legislature, it has
never been held necessary to refer specifically
to each corporation or the general or special
law under which it was incorporated. It is
sufl‘icient if the title of the act is broad enough
to include such corporation, and not of a char-
, acter which would mislead or furnish a cover
, for secret legislation. * * * The provisions
‘ of chapter 157, p. 144, Spec. Laws 1878, de-‘
claring the board of education of the City of
~ Minneapolis to be a corporation, established
no difi‘erent relation between it and the City
_ than that found between every other school
7 , , district and the particular governmental sub-
division to which it was confined. The efiect5
ive special provisions were those providing for
the number of school inspectors, the time and
manner of their election, and similar incidents
connected with the management of the dis-
trict. How far the legislature might have
gone in granting special powers to defendant
/ — , We Will not attempt to say. It seems clear
' ' that the only thing the legislature did attempt
was to organize an independent or special
school district comprising the City of Minne-
apolis in harmony With the constitution and
w the general laws of the state. ,
‘ ‘ The title of the act of 1878 was ‘An act re‘
' lating to the government of free schools in the
City of Minneapolis.’ It might as Well have
\ „ _ Vbeen entitled ‘An act relating to the depart-
£ V Ü v “ _ , _ ment of education in Minneapolis.’ Under
; \ Ä . ‚ that title it would be very clear that the enact-
>!" 7 & , ; ment formed part of the city charter. The
IF < maintenance of public schools in conformlty
‘ “ ' with the constitution of the state is one of the
public duties imposed upon the various gOV' *
59
ernmental and administrative divisions of the
state, and in carrying out that duty it is im-
material whether or not a distinct legal entity. ' , '
is brought into existence for the purpose of
securing the performance of the duty. The ';
entity, when so created, is charged with duties
and responsibilities as is an individual public '
officer, and cannot interpose a purely artificial „
barrier as a reason for a refusal upon its part
to perform its duties in accordance with de- '
clared public policy.” ( ‚(
In other words, this case applied the liberal rule
of construction adopted by the courts in consider-
ing this constitutional limitation upon the power of
the legislature, and sustained the sufficiency of the
title as not of a character which would mislead or 7
furnish a. cover for secret legislation, saying that
it was unnecessary to refer to each corporation;
that is, the school district and the city. The Court
said that the corporate entity of the school district
was distinct from that of‘the city, and that the
special act which established the school district
established no difierent relation between it and the,
city than that found in every other school district 7 '
and the particular governmental [subdivision .to
Which it was confined. Since the corporate ent1ty
Of the school district was distinct from that‘qfrthe
city, it ivas, to say the least, inaccurate to refer
to the board of education as a department of the}
city.
Neither of the two cases last discussed'involved
e Charter—mal.
{has that quest ' '
sIt issigni
the question whether raj home rn]
legislate for the public schools, nor
tion ever been presented'to_the court.
60
ficant, however, that in one of the latest cases in-
volving the power to legislate for the public school
system the court has emphatically declared that '
the maintenance of public schools is a matter, not
of local, but of state concern; that the object of the
provisions of Const. art. 8, @@ 1, 3, was to insure a
regular method of education throughout the state;
and that they were inserted as a mandate to the
legislature prescribing as a duty the exercise of this
inherent power. Associated Schools vs. School Dis-
trict No. 83, 122 Minn. 254, 257.
As already observed, a board of education is none
the less an agency of the state in the performance
of the duties devolved upon it, although the legis-
lature may have availed itself of officers of a city
as part of that state agency. In other words, a
board of education is not, and cannot constitution-
ally be, a department of the city government, in
the sense that the framers of a home rule charter
may, by direct legislation, provide for its establish-
ment and administration. The mere fact that there
are to be found inexact expressions, used by Way
of argument in one or two cases where the present
question was not involved, to the effect that a board
of education is a department of city government,-
is entitled to no weight in the face of the provisions
of the constitution and the established policy of
' the state. This is forcibly borne out by Gunnison
VS. Board of Education, 176 N. Y. 11, 68 N. E. 105.
In this case it appeared as follows: The Greatell
New York Charter, enacted by the leg/BMW”; Cre'
ated the board of education of the city and provided
that it should have-the management of the public
school and the public school system of the city
61
With the powers of a corporation. The charter
also enumerated the administrative departments
of the city, the board of education being called the
“Department of Education” and the head of the]
department being called the Board of Education.
It was held that the fact that the legislature made
the board of education one of the administrative
departments of the city did not devolve on the city
itself the functions formerly imposed on the board
of education as a separate public corporation, and
that the fact that the charter authorized the board
to sue as to school property did not exclude the
idea that it might also defend actions. It was
argued that the legislature, in making the board of
education a member of one of the administrative
departments of the city, had devolved upon the city
_ itself, acting through one oflits departments, the
state functions which were formerly directly im-
posed upon the board of education as a separate
public corporation, and that in this respect the
board of education was similar to the department
. of health, the police department, the department of
public charities, and the fire department. In an-
swer to this the Court said:
“Surely, if this is a correct statement-of the
law, a great change has been made, Wthll we „
would naturally expect to find clearly ex-
pressed in the new charter, since it is in that
Charter that we still find all the statutory pro<
visions quoted above, alid.notab1y that pro— I
vision wherein it is declared that the board of
education shall, in its corporate capac1ty,
represent the entire school system. If the
[##17 ‘
State has departed from the settled policy that
has prevailed since its orgamzatton,of keep-
62
ing therwork of public education and the con-
trol and management of its schools separate
and distinct from all other municipal interests
and business by the selection of its own agents,
and clothing them with corporate powers to
represent the schools, such as school districts
and boards of education, and has devolved
these powers and duties directly upon the city,
we would naturally crpcct to find such a de-
parture and notable change expressed in lan-
guage so clear that no doubt could arise as to
this change of policy. If the board cannot be
sued for teachers’ wages, and the teacher must
resort to a suit against the city, then surely
the board must have sunk into a mere city
V agency, and it no longer has any use for inde-
* , V pendent corporate powers. Public education
"then becomes a city function, ewposcd to the
taint of current municipal politics, and to any
and every general mismanagement that may 1
prevail in city departments.”
A fortiori in this state, where the constitution
itself has imposed upon the legislature the duty of
legislating for the public school system, we should
naturally expect to find such a departure and not-
able change from the constitutional and traditional
policy of the state, which would devolve upon the
voters in cities and villages a power which formerly
could be exercised only by the legislature, expressed
in language so clear that no doubt comd arise as to
‚_ this change of policy. Instead of finding such change
b Of policy thus clearly expressed, we find in the
— * home rule amendment of the constitution words
* 1 _.\ WhiCH by their natural as well as their strictly legal
. meaning exclude all idea that such change of 9011037
'Was intended,
63
(6)
THE PRACTICAL CONSTRUCTION PLACED
ON CONST. ART. 4, § 36, BY THE LEGISLAT-
URE AND BY THE BOARDS OF FREE-
HOLD-ERS IS AGAINST INCLUSION IN A
HOME RULE CHARTER OF LEGISLATION
FOR THE PUBLIC SCHOOLS.
The practical construction placed upon Const.
art. 4, § 36, by the legislature is against the exist-
ence of any power thereunder to legislate for the
public schools. This is conclusively shown by the
legislative declaration, nine years after the adop-
tion of the home rule amendment, that “for school
purposes the state is divided into common, special
and independent school districts, each of which
shall be a public corporation,” (R. L. 1905, § 1280),
a division of the state for school purposes, which
excludes the possibility of a fourth class of school
districts, namely; districts created and governed
by home rule charters. This construction the leg-
islature has constantly adhered to and followed.
It is re—affirmed by the legislation in respect to the
taxes to be levied in the three classes of school dis-
tricts, which have already been discussed. Ante,
pp. 40-42. 7 _ . ‘
The practical construction placed upon (Joost.
art. 4, § 36 by the boards of freeholders, including
among their members many of the ablest lawyers
in the state, which have framed the home rule char—
ters adopted up to the present time is against the
existence of any power [to make therein any pro—
visions concerning the public SChOOl SyStem‘
An examination of these charters on file in the
64
office of the secretary of state shows that the fram-
ers of all of these charters, some forty-four in
number (see Appendix giving list), with only one
exception, have refrained from any attempt to make
therein any such provisions relating to the public
schools. The charter adopted by the City of West
St. Paul appears to be the one exception. The St.
Paul Charter of 1900 is not an exception, for the
framers of that charter were careful to go no fur-
ther than to declare that the provisions of Spec.
Laws 1891, c. 36, as amended by Spec. Laws 1891,
c. 7, § 11, and as modified and amended by Gen.
Laws 1899, c. 40, “are hereby continued in force,”
and after the above declaration (chapter 11, § 1)
the charter proceeds: “Said chapter 36 is in the
language following” (setting out the special act
section by section). The charter adopted by the
City of Rochester is not an exception, for the
framers of that charter were careful to adopt the
course pursued by the framers of the St. Paul Char-
ter of _1900, the Rochester charter declaring that
the special act under which the City of Rochester
had been made a special school district was “con-
tinned in force.” '
The language of Const. art. 4, § 36 is not doubt—
ful, but by its very terms excludes a power to leg-
islate for the public schools. Yet if the language
were doubtful, this practical construction, adopted
and followed by the legislature and the people for
many years, could not be disregarded, and would
be entitled to great weight.
City of Faribault vs. Misener, 20 Minn. 247
(396); \ ,
‘ State vs. Mofiett, 64 Minn. 292, 294:;
65
State vs. Northern Pacific Ry. Co., 95 Minn.
43, 47. ~
(7)
COMMISSION CHARTER A DEMONSTRA-
TION THAT POWER TO LEGISLATE FOR
THE PUBLIC SCHOOLS WAS NOT
, , , - ONFERRED. “
'All the evils the? would résujf f ' ' ?‘
cities and villages the power tö xfigigéegihlggch%ol
district in‘the city and to make such provisions as
they might see fit for the management and control '
of the public school system Within the territory
are strikingly shown by the Commission Charter.
It is to be observed that this charter .Was not
framed by a board of freeholders, but was auto—
matically submitted to vote as an amendment upon
petition of five per cent of the voters, pursuant to, *
Gen St. 1913, § 1350, and that consequently its
provisions were not and could not be passed 111"”.J '
by the board of freeholders. I
By the frame of government made by the Com-
mission Charter the management and control of.
the public schools is vested in the council, with
one Of the members of the council, who is to be
assigned as commissionerof education by the
mayor, as the chief administrative officer. No sep—
arate election of school ofl‘icers can be held, and,
the Ofi'icers who manage the wheels are those who
manage and control all the) affairs of the city, and
they come into and pass: out of oflice With each.
Change of the city’s administration:
very
Such a. frame of government is‘open to e
eVil against which the constitution was dealgned
66
' to guard the public schools by imposing on the
legislature the duty of establishing a general and
uniform system of public schools. (1) It violates
the principle of uniformity, for it is unlike that
of any other school district in the state. (2) By
placing the management of the schools and the
administration of the city in the same hands, it
makes impossible the election or selection of school
officers chosen with a View to their fitness for that
duty. (3) This frame of government makes the
public school system of the state a part of the polit-
ical machinery of the city, thereby subjecting it
and the state’s school funds to political manipula-
tion and exposed to the taint of current city politics.
All this is in violation of the constitution and
/ inconsistent With the public policy and traditions
‘ , that have prevailed in the state, and with the his-
, V ' tory. of legislation. In the common and independ-
:,.~: * ent school districts the school officers have always
' “ been elected, and elected as school officers. In the
' _ special school districts also this has largely been
the case. In one or two special districts, it is true;
the members of the school board have been ap-
’ pointed out of the body of the citizens by the mayor
of the city, but the law in such cases has been so
framed by the legislature, as is the case of the St—
7 Paul school district (Spec. Laws 1891, c. 36): that
the school board should not change with each city
administration and that the members of the board
7 should not be the same persons yvho administered
the affairs of the city.
' In one special school district, that of South St.
' Paul, the afiairs of the school district were indeed
committed by the legislature to the control “and
management of the city council (Spec. Laws 1891, '
c. 58), but the legislature recognized and remedied “ *
this evil by the enactment of Laws 1903, c. 289,
the purpose of which was, as pointed'out by this
court, ‘fto provide the necessary machinery ,where- ‘
by all schools in cities of 10,000 population or less , yr
might be reorganized and the managementof their \‘
affairs transferred from the city council to an inde- "
pendent board of school trustees elected by the ', _
people.” It Was held that this act was not repug- ' _ _
nant to Const. art. 4, §§ 33, 34, prohibiting special ; '. *
legislation. The court emphatically points out the.
evil of committing the contro1 and management of h ' "
schools to a city council, saying:
“Its purpose was to remedy an existing evil, „4:
to transfer the control of the publicschools
where managed by‘the municipal authorities
to an independent board, thus removmg the _
educational interests from politicalymmipulw-
tion.” ' > r „" >’,
State vs. Henderson, 97 Minn. 369. „ _
See also Gunnison vs. Board of Education, L :
4 176 N. Y. 11, 68 N. E. 106 (ante, p- -)- ' , f
The framers of the Commission CharterWel'ePf
course not under the necessity, if they:had “19 ‘ „
of 'exer- '
ih such a way5
ely the '
of a home mlegcharter ,
' ein for the ,
prevents 'thein‘fromexer- w \ \ 7
Power to legislate for the puhlic‘ schools,
cising such power as they have done, \
as to merge the school district complet
city. But if the framers & _‘ _
have the power at allrto legislate the!‘
Public schools, nothing >
cising it as the framers of this ‚ch
Such a charter is itself a‘demons. 1
Power thereby sought to hep/exercised
after have done-
was not in-
trat’ion’rthat th?‘ _ ‚.
www“
68
tended and was not conferred by Const. art. 4,
§ 36.
The provisions made by the Commission Charter
for the levy of taxes and the appropriation of
money for the purpose of the schools is a further
demonstration that power to legislate for the
schools was not conferred by the home rule amend-
ment. Section 394 provides as follows:
“Subject to the provisions of this charter
and the laws of the state the council shall
have power to levy and collect general prop-
erty taxes or other revenues and to appropri-
ate money for the support of said school, pro-
vided that the whole amount appropriated by
said council for all purposes whatsoever con-
nected with the public schools shall not in any
one year amount to a greater sum than $6 for
each inhabitant of the City of St. Paul. In
determining the number of said inhabitants
the figures of the last United States census of
population of the City of St. Paul shall be
taken as a basis, and for every year which has
Elapsed since the last United States census
have been taken to the year in which said ap-
PI‘OPI'iations are made by said council, there
shall be added to the census figures one-tenth
of the difi'erence between the United States
census figures taken next previous to that
census. Provided, further, that the qualified
voters of St. Paul by a threefifths aflirmatlve
majority of all the votes cast upon the pI'OPOSI'
tion may at any time appropriate any 311101111t
in addition to said limitation to be used for
permanent buildings for said schools.”
A. The power of the school districts to levy taxes
‚_ for school purposes has already been discussed.
By virtue of R. L. § 1414 (Gen. St. 1913, § 2917):
ri"
in the special district of St. Paul such amounts
may be levied as allowed by Spec. Laws 1891, c.
'36, § 6, together with such further amounts as are
authorized by R. L. § 1415 (Gen. St. 1913, € 2918).
' Spec. Laws 1891, c. 36, % 6, is as follows:
“The expense of the public schools of the
City of St. Paul shall not in any year exceed
the amount of money appropriated and set
apart therefor by the common council of said
city, and the common council of said city is
hereby prohibited from making any greater tax
levy in any one year for the support and main-
tenance of the public and free schools of said
city than two and one-half (21/2) mills on a
dollar, nor less than two (2) mills on the
dollar on all property on the assessment roll;
out of which amount said council may set
apart one-half (%) mill on the dollar for the
erection of additional buildings for school pur-
poses or for creating a fund that shall be set
apart for that purpose exclusively. And said
board of inspectors shall have no power or
authority to create any indebtedness against
the City of St. Paul, or to pledge the faith and
credit of said city in any respect Whatever
until after the common council or legislative
department of the city government has, by
ordinance, ordained What the expenditures for
school purposes in said city for the school year
shall be, and then only to the extent of the
amounts so set apart by ordinance for 3011001
purposes each year; and in no year shall the
aggregate amount set apart exceed an amount
greater than two and one—half (21/2) mills-0H
a dollar of the property assessed for taxation
in said city for such a year, and any Violatlon
of this provision shall be a misdemeanor, and
upon conviction any party violating the same
llw ll
70
shall be punished by imprisonment in the
county jail for six (G) months.”
‘ - The provisions of the Commission Charter in
this regard are invalid.
(8)
ARGUMENT OF INCONVENIENCE OF NO
WEIGHT.
The respondents will perhaps contend that, for
'reasons of convenience, it would be desirable that a
city or village should have, in addition to the pow—
f er to frame a charter for its own government as
;.‘ ' * * ; < a city, the power to organize the territory within
‘ its boundaries as a home rule school district; and
that, because this power might be convenient, it
must be assumed that it was granted. But this
assumption would do violence to the plain words
of the home rule amendment, and would moreover
„ ignore the conditions surrounding the government
; ‘, 7 of school districts and the history of general legis-
' lation with reference to them, to which reference
might properly be had in determining the intent
of the amendment if its plain words were not
decisive of the intention.
State vs. O’Connor, 81 Minn. 79.
In that case the question before the court was
Whether the home rule amendment applied only to
Cities incorporated at the time of its adoption and‘
notvto cities to be thereafter incorporated, and it
was held that it applied to the former and not to
‚the latter- The Court found an expression of such
' L jintention in the. title of the act proposing the
' \ amendment, and also in the conditions surround-
? ing the‘gOVernment‘of cities and villages and the
history of the general legislation with reference to. '
cities and villages, to which, the Court said, in de—
termining the intent of the amendment, reference
might be had. The Court- pointed out that the
cities in existence at the time of the adoption of
the amendment were for the most part incorpor-
ated under special charters and by reason of the
constitutional amendment of 1891 prohibiting
special legislation were helpless when confronted
with new conditions requiring the exercise of new
powers. And the~Court said that no (doubt the
legislature had this in mind, and intended the home
rule amendment to relieve them, and to extend the
same privilege to all villages, Whether then or there-
after incorporated. _ '
It is true that the constitutional amendment pro-
hibiting special legislation applies to school dis-
tricts as well as to cities and villages; but here the » „
similarity between cities and villages, on the one
hand, and school districts, on the other, with res-
pect to the conditions surrounding their govern-
ment and the history of the general legislation with
reference to them, ceases. Of late years new and
varied functions and public services have been un-
dertaken by cities and villageswhich were form-
erly unknown and to meet whichbroader powers
are needed. The functions of the school districts,
although they have developed in‘the degree Of the
education supplied, are the same in'ykind as When
the Constitution first imposed upon the legislature
the duty of establishing a general and uniform
System of public schools; and the m
as always remained a matter,
practical
aintenance of
the public schools h
not of local, but of state concern: If any
72
difficulties, with respect to the relations between
school districts and cities are created by the pro-
visions of a home rule charter, the remedy rests
with the legislature, if it sees fit to legislate. See
Laws 1909, c. 212, Laws 1911, c. 38 (Gen. St. 1913,
§§ 2737-2740). The fact that a school district may
he a special district presents no serious difficulty
(State vs. Minor, 79 Minn. 201; State vs. Hender-
son, 97 Minn. 369; State vs. Brown, 97 Minn. 402,
410); but in any case the remedy lies with the
legislature.
II
THE MAYOR AND COUNCILMEN OF THE
CITY OF ST. PAUL ARE NOT LEGALLY AU-
THORIZED TO EXERCISE THE FUNCTIONS
OF THE BOARD OF SCHOOL INSPECTORS
AND THE BOARD OF LIBRARY DIRECTORS
OF THE CITY OF ST. PAUL BECAUSE THE
PROVISIONS OF THE COMMISSION CHAR-
TER UPON WHICH THEY BASE THEIR
RIGHT ARE IN VIOLATION OF CONST. ART.
7, § 8 AND INVALID, IN THAT WOMEN (1)
ARE THEREBY DEPRIVED OF THE RIGHT '
TO VOTE FOR THE OFFICERS OF SCHOOLS
AND: THE MEMBERS OF THE LIBRARY
BOARD AND (2) ARE MADE INELIGIBLE TO
HOLD THE OFFICES PERTAINING TO THE
MANAGEMENT OF SCHOOLS AND LIBRAR-
IES, AND (3) SUCH PROVISIONS WERE
NEVER LEGALLY ADOPTED. ‘ '
(1)
STATEMENT OF PERTINENT LEGISLATION.
Prior to the year 1875, there was no constitu-
tional provision upon the subject of the rights of
Women to vote or to hold office in the State of
Minnesota. In that year the following amend-
ment was adopted: . ' ; ‘ _ Y I \
“The legislature may, notwithstanding any—
thing in this article, provide by law, that any
Woman‘ of the age of twenty-one ('21) years
and upwards, may vote at any electlon for‘the
Purpose of choosing any officers of schools, or
uP011 any measure relating to schools, and
may provide that any such Women shall be
MWman www!‘
74
eligible to hold any office pertaining solely to
the management of schools."
Const. art. 7, sec. 8 (Gen. St. 1894).
Pursuant to this amendment, the legislature in
the year 1877, passed the following law:
f » “Any woman of the age of twenty-one years
' ' and upwards, belonging to either of the classes
mentioned in section one of article seven of
the Constitution of the State of Minnesota,
* — , ' Who shall have resided in the United States
' one year, and in this state for four months
next preceding any election held for the pur-
pose of choosing any ofiicer of schools, or any
school district meeting, called to consider any
measure relating to schools, shall be entitled
to vote at such election or meeting, in the
school district of which she shall at the time
have been for ten days a resident, and any
woman so entitled to vote shall be eligible to
hold any office pertaining solely to the man-
agement of public schools, provided, that it
shall be the duty of all judges of election to
permit any woman to vote at any election for
[the purpose of choosing any Officer of schools
or any district school meeting called to con-
\ v sider any measure relating to schools, if they
' are satisfied that she is otherwise a legal voter,
Without requiring her to register as now pro-
vided by law, for male voters.”
'LaWs 1877, c. 74, sub-c. 1, § 13 (G. S. 1894-
§ 3665).
"‘Whenever the charter or act of incorpOf-
ation of any city or village provides for the
election of public school officers within such
city or village, at the same election at which
, » . ‚ , other officers of such city or village are elected,
"’g» »_ f ‘7 the ballot” offered by any woman entitled t0
‘„ » — “ — r — ‘ \ » vote under this act, shall not contain the name
of any person to be voted for at such election,
except such officers of public schools, and all
such ballots shall be deposited in a separate
ballot box, but canvassed With the other bal- ' ' ' ' ' Ä-
lots cast for school officers at such election.” I
Id. § 14 (G. S. 1894, § 3666).
There was no change in the constitution nor any
other legislation until 1898 when Const. art. 7«&
8 in its present form was adopted:: ,
“Women may vote for school olficers and „
members of library boards, and shall be eligible '
to hold any oflice pertaining'to the'manage- .
ment of schools or libraries. “Any Woman of -. r‘
the age of twenty—one years and upward and
possessing the qualifications requisite to 'a male
voter, may vote at any election held for the F
purpose of choosing any officers of‘ schools or,
any members of library boards, or npon any
measure relating to schools or libraries and
shall be eligible to hold any office pertaining r
to the management of schools and libraries.” ‚n -
There are at present no provisions with reference , ' 4’ '
to the right of women to‘participateiin matters r .
pertaining to schools and libraries other'than the
Section of the constitution just rquotedr‘and the
requirement incorporatedrin Gen."St.’~1913, § 441, *
for separate ballot boxesratr‘elections‘at .vvhich
Women are permitted to vote. :5: w «" „; ' " .
The first important Klegislative enactnientiafiect;r
ing the City of St. Paul as a school district, Insofar
as involved in this proceeding, is Spec. Laws 1591, —
c. 36. This act has never been I'épeffledg “the r * V
legislature; modifiedfltnin a infill? Immatena: . . - _\
here by Spec. Laws 1891, C.‘ ?, 31341‘ 1395511313’\bly PW &
1899, c. 40. «' " ‘ " '
76
In the year 1900 the City of St. Paul adopted
the home rule charter herein referred to as the .
Charter of 1900. In this charter were incorpor-
ated the provisions of Spec. Laws 1891, c. 36, as
amended by Spec. Laws 1891, c. 7, and as modified
or amended by Laws 1899, c. 40. It may be noted
that chapter 11 of the Charter of 1900 attempted to
enact that all the provisions of the laws mentioned
be “continued in force.”
After 1900, the City of St. Paul made no further
changes in its charter affecting the schools and
libraries until the adoption of the so-called Commis-
sion Charter in the year 1912. The provisions
of the Commission Charter concerning schools and
libraries are particularly in question here.
(2)
ANALYSISrOF THE LEGISLATION.
The first constitutional amendment above quoted,
adopted in 1875, was not mandatory or self-executA
' ing„but was merely permissive, and left it wholly
to the legislature to determine whether women
might be given the right to vote at school elections
or upon school measures and to hold school offices,
and if so, when and to what extent.
7 Trautlnann vs. McLeod, 74 Minn. 110, 113.
In the exercise of its discretion the legislature
passed laws 1877, c. 74, sub-ct 1, §§ 13, 14 above
quoted, which, upon the adoption of the 1893
amendment to Const. art. 7, € 8, became no longer
necessary and has been eliminated from the stat-
utes. Gen. St. 1913, § 9440.
77
The case of Trautmann vs. McLeod, 74 Minn. 110,
above referred to, has no bearing upon the issues
here involved. It decided that the constitutional
amendment of 1875 was not self-executing and that
the general legislation enacted pursuant thereto
did not, by implication, repeal the then existing
special legislation. The Trautmann case did not
and could not determine and did not even touch
upon, the question whether an act, supposing such
act were not otherwise unconstitutional as special
legislation, or a home rule charter, so framed as to
make a city council and its members the oflicers of
schools or of the school district, would violate the
mandatory amendment of 1898 by denying to
women their constitutional rights to vote forelec-
tive officers of schools and to hold such offices. "
The constitutional amendment adopted in 1898 „ ;
is mandatory and self-executing. This factrwas .
recognized by the revision commission ‚Which pre-
pared and the legislature which adopted the Re-
vised Laws 1905, in repealing the act of 1877, c. 74,
Without substituting anything in its place. If there
could have been any doubt as to the effect of the ~
1898 amendment the case of Oppegaard vs. Board of
Commissioners, 120 Minn. 443, has disposed of lt.
The court says: ‘ ' "
“If the question here Were upon the rlght
Of women to vote upon some school measure
under a statute, providing for the SumeSSIOD
Of Such matter to the ‘legal’ voters’ at an elec-
tion, it might be that the
in point to the proposition
stitution women would have
right to vote in order to save
case cited would be
that under our con-
to be accorded the
„
78
Again at page 447, the court states in the same
opinion:
. N!* * the people, by the constitutional
provision above referred to (Const. art. 7, é
8) gave women in plain terms, the right to
l . {’1
Again the court says, in the same opinion, that
this provision of the\constitution “indicates a gen-
eral policy of giving women an equal voice with
men in matters purely educational.”
Since the object of the constitutional amendment
of 1898 was to give women an equal voice in mat-
ters educational, its effect must be to prohibit any
legislation which interferes With the'clearly an-
nounced policy of the people in this regard.
Prior to the adoption of the constitutional
amendment of 1898, the City of St. Paul, by the
special legislation above referred to, had been cre-
atedaspecial school district. (Ante pp. 26-32.) It iS
enough here to say that the mayor had the power to
appoint the school board; the council had the power
to reduce the total amount to be expended for the.
salaries of school teachers and other employees, and
had authority to order the purchase of additional
' school sites and/the erection of additional school
buildings upon the advice and under the super-
vision of the school board; all other powers and
functions with reference to schools and the school
» district were vested in the Board of School In-
spectors.
. V In the enactment of this special legislation no
constitutional question was involved, for as already
stated, the then existing constitutional provision‘
was permissive merely, and not mandatory. This
79
legislation was, and remained valid inlany‘evént \ ,
until 1898, when the Constitution was changed. '- ‘
Whether it is so inconsistent with the consti- '
tutional amendment of 1898 as to have been re
pealed by the latter, it is not necessary to consider
in this connection, for the point is not in issue.
It may be stated, however, that women, under the
special act of 1891, were not discriminated against. ‘ \ .
The officers having in charge the management and " .‘, -
control of the schools were not elective, but ap: '
pointive. Not being elective, neither men nor
women could cast any votes in their selection‘andi
were therefore on an equal basis. 7 Both men and
women were eligible to the office of a school» in-
spector and were therefore againlon an equal basis.
The power and authority of the‘board of school in: „
spectors was limited solely to school afiairs, and in« ‚'
so far as any school measure might be submitted to
popular vote, such measure would necessarily be so \ v \
framed that men and women bothrcould vote upon, . . " 4 —
it. In other words, men‘and women, even before. *
the adoption of the constitutional amendment of
1898, had an equal voice in school and library mat‘ _ _
ters. It is true, men alone elected the mayorflnd _ ‚_
the common council, who appropriated the moneys'
necessary to run the schools, hut Mühe? the mayor \
nor the bouncil had ’anyrvoice in internal manage-
ment of the schools and school affairs, auch:“) If”:
as the voter was concerned, there was no discrlm-& y- ' '
ination made or possible, between menand women \
in school and library affairs-’3'? )7". " ' ' ' t
This brings'us to the finallegislatlyeenactmell
bearing uponthe issues discussed in thls subdmsgon
or the brief, namely: the‘ Comm1551011_ ‘Char er-
r . ulflwlrw““'l "f
80
adopted by the male voters of the City of St. Paul
in 1912.
The consequences of this charter are revolution-
ary. Expressly and in effect it repeals all the spe
cial and many of the general laws applicable to St. “
Paul as a school district. It places the government
of the school district of the City of St. Paul en-
tirely in the hands of the city council and mayor.
It abolishes the boards having executive control
over the affairs of the schools and the school district
and the libraries. It merges the affairs of the
school district in the general affairs of the city. It
submerges the management and control of the
schools and school district in the management and
control of the city at large. The officers to whom
are entrusted the management and control of the
school district are not appointive, but elective.
Women can not vote at the election of these officers
because they are also the officers of St. Paul as a
city. Women can not be either appointed or elected
to any of the offices having the management and
control of the/schools and libraries, because the
same offices are vested with the management and
control of the affairs of the city at large.
(3)
THE PROVISIONS THE COMMISSION
CHARTER DEPRIVE “’OMEN OF THEIR
RIGHT TO VOTE. '
' The P01i€y of the law in this state to give women
and men an equal vote in educational matters has
been pointed out. Are Women denied equality of
woice under the Commission Charter? There can
st " ,
be but one answer, for men alone elect the oflicers
having charge of the schools and libraries.
Is the legislation by which this result is accom-
plished in violation of the Constitution? A bare
statement of the situation is sufficient to demon-
strate that the Commission Charter violates both , )
the spirit and the letter of the organic law.“
The provisions of Const. Art. 7, § 8, have already
been demonstrated to be mandatory. ‘ „
“Strict conformity with the Constitution
ought to be an axiom in the science of gov-
ernment. We are not prepared to hold that
every provision of the Constitution is man-
datory, but we do hold that they‘should all
be understood and accepted as mandatory
unless a different intention is unmistakably »
manifest on the face of the provision. Rules
which distinguish mandatory and directory
statutes should rarely if ever, be applied to
constitutional provisions. ' Courts tread upon /
very dangerous ground Whenthey attempt to
do so. Cooley, Const. Lilli, 93. Unless a cart
stitutional provision shows papm‘its faee that
it was intended to be directory, it must be M-
cepted as the imperative mandate of. the soy
ereign people, and not as good_admee legis-
latuie and courts may acceptor reject as they
please. The safety of the state and the protec-
tion of the liberties «md rights of the 11,001???
demand that this be strictly adhered to.’
Sjoberg v. Security Savings & Loan
73 Minn. 203, 212, per Start, C. J. (_ . _
“In treating of constitutionalpr0v1510ns, We
believe it is the general rule among courts t0
‘t
‘ dato and not to leave 1
regard them as manry mum to Obey
' " f a legisl .
to the W111 or pleasure o e lahgqage of the
ermitted toor disregard them?" Where th
Constitutiönis plainfwe‘are
not p
Ass’h, .
Mwflwwtqn. t ‘—
82
indulge in speculation concerning its meaning,
nor whether it is the embodiment of great Wis
dom. A Constitution is intended to be framed
in brief and precise language, and represents
the Will and Wisdom of the constitutional con-
vention, and that of the people who adopt it.
It stands, not only as the will of the sovereign
power, but as security for private rights, and
as a barrier against legislative invasion.”
State v. Sutton, 63 Minn. 147, 149.
A detailed examination makes even more appar-
ent the irreconcilability of the Commission Charter
with the Constitution.
The charter has not abolished, and of course can
not abolish, the school district of St. Paul. Even
the legislature could not so legislate as to leave
the territory within the city outside of the limits
of any school district. That the city and the
school district may be territorially coterminous
does not abolish the school district. Not only
does the school district still exist, but it must con-
tinue to carry on the educational work for which
it was created. This can only be done through
electors and officers. In this respect, a school dis-
tl'iCt is not different from any other corporation-
As the court said in the case of Harrington vs
Town of Plainview, 27 Minn. 224, a town corpora-
tion acts as a body politic directly or indirectly
through those in whom political power is vested
by the Constitution, and the legislature can not
provide for any others expressing the will of the
corporation. The court there had reference to a
town.‘ The language is applicable to a school dis‘
trict. The court further says that it is not com‘
petent for the legislature to authorize any Person
83 \ r "f
or class of persons, other than electors or officers
chosen by the electors, to determine for the town
its action with reference to local taxation. The
language is equally applicable to a school district,
except that here we must substitute the framers of
a home rule charter for the “legislature,” since
it is they who have attempted to transfer to others \
the power vested in the electors and in the officers
of the school district by the constitution and by
the legislature of the state. ,
Since a school district can act only through its '
electors and its officers, it follows that, in order
to act, the district must have electors and officers.
Otherwise, there would arise the anomalous situ-
ation of a corporation exercising its functions with:
out any lawful agents thereto appointed. The
school district of the City of St. Paul must there
fore still be in existence. Indeed the Commission
Charter itself specifically refers to the city as a \
Special school district. Inasmuch as its schools
are still open and active it must have a school
electorate and should have school officers, '
This presents a dilemma. Either theelected
councilmen and mayor are oificers of the school
district, and, being elective oflicers,,the Women Of
the City of St. Paul were illegally deprived of
their right to vote for elective school ofl‘icers; or
they are not school officers, in which case women
» Were not deprived of this constitutional right-
If they are not school officers, the school corpor-
ation has not elected or appointed any successors
‘60 the Board of School Inspectors, who were the
lawful officers of the school district Prior to in?“
1, 1914. {There can no more be a total ab011t1011
A“, W" „„m— m.
, - ‚_,—if} “9%.,
84 '
of school offices than of school districts. The
r councilmen and the mayor either are the oflicers
t ' — of the City of St. Paul as a school district or they
I ' are not. If they are the officers of the school
district, then their election is illegal. If they are
not the officers of the school district, then their
assumption of power over the school district is
illegal. In either event, the exercise of the author-
ity and powers of school officers by them is un-
v warranted and illegal.
' That it was the intention of the Commission
Charter to make the city council and the mayor the
school and library officers is clear, for the charter
I attempts to do away with all other such officers and
7 , ' .to vest the entire management and control of the
Schools and libraries in the council, and (subject to
the direction and control of the council) partic-
ularly in one member of said council, called the
Commissioner of Education. The purpose and ef-
fect of this plainly is to constitute the council to
all intents and purposes a school board and a
, ‘library board, and to make the Commissioner of
Education the chief administrative officer of these
boards.
By thus vesting all powers with respect to schools ' \
and libraries in these elective officers, the Commis-
f sion Charter by its terms made it impossible fo!‘
Women to exercise their constitutional right to Vote
for officers of schools and members of library
boards Without at the same time voting for the
members of the c011ncil,—~in other words, without
'! ‚' > exercising substantially the full municipal fran-
1 ' _’ ‚chisre, a franchise which the charter does not and
V could not constitutionally grant. '
85
Can the framers ‚of a city charter so ekercise the
powers conferred upon them by Const. art. 4, § 36,
as to disfranchise the women voters of the city, to
the full extent of the franchise granted them by
Const. art. 7, § 8? If so, then no constitutional
provision is safe against subterfuge and manipula-
tion. ' z,“? ,
It is to be observed that Const. art. 4, § 36 pro-
vides that the “charter shall always be in harmony r
with the Constitution of Minnesota,” thereby giving '
an express warning, if this'were necessary, against
framing a charter in such a/manner‘as to disfran-
chise constitutionally qualified voters, But even
without such express provision, the mandate of
art. 7, § 8, would of course operate as a limitation
on the powers of the framers of a city Charter. 3 ;
People vs. Smith, 206 N. Y. 231, 99 N. E.
568; \ ‘
Allison v’s. Blake, (N. J. Sup.) 29 Atl. 4179-,
Thus, in People vs. Smith, supra, the court said: '
“It is clear that the otherwise plenary power grant-
ed to the legislature to prescribe the method of.
conducting elections cannbt he so exercised as to
disfranchise constitutionally qualified‘electors, and
any system of election that unnéeessarily prevents
the elector from voting or from voting for the can-'
didate of his choice, violates the"collstit11ti°n-
Matter of Hooper vs. Britt, 203’N. Y. 144, 96, N.‘
E. 371, 37 L. R. A. (N."S.) .825; Matter of Hopper
vs, Britt, 204 N.‘ Y. 524, 98 NJE.‘ 96.” “ '-
In Allison vs. Blake, supra, it was held that all
persons who are within the class designamd by the
constitution are entitledtowote'for all-officers
e ofliceso to be‘_ elected by the people,,Whether‘th
86
filled was created by the constitution or by legis-
lation, that such class of voters cannot be dimin-
ished or enlarged by the legislature, and that con-
sequently the statute cannot confine the right to
vote for road commissioners to the freeholders of
the district. The court said:
“The class of voters at official elections be-
ing thus defined by the constitution, it is not
competent for the legislature either to enlarge
or to diminish such class. The authorities it
is believed, are unanimous to this effect.
Cooley, Const. Lim. 64. The provision there- -
fore, in the present statute, authorizing the
election in controversy by the resident free-
holders of the district, is a palpable alteration
of the constitutional scheme, and the proceed-
ings under it are consequently invalid. Judg-
ment of ouster must pass against the defend-
ant.”
/The failure to provide a method for submitting
to the electors of cities within a county a measure
for the removal of a county seat renders the law
invalid.
Attorney General vs. Board of Supervisors.
11 Mich. 63. _
The legislature cannot lawfully deprive qualified
voters of a county of their right of suffrage by
Organizing townships in only a portion of the coun-
ty, leaving the remainder unorganized.
‘ People vs. Maynard, 50 Mich. 463.
In State ex rel McCarthy vs. Fitzgerald, 37 Minn.
35, an act of the legislature assuming to establish
a second election district in an organized town, in
» the absence of any law under Which an election
“ mum beheld in such district, was held to be uncon-
87
stitutional, because it deprived voters of an op-
portunity to vote. } /
In the case of State vs. Public Road Board, \(N.
J. Sup.) 32 Atl. 688, a case which arose under the
act declared unconstitutional in the case of ‘Allison
vs. Blake, supra, the court said:
“In Allison vs. Blake (N. J. Sup), 29 Atl.‘
417, this court decided that the statute above
mentioned was unconstitutional, in so far as
it attempted to make members of the road ,
board elective by the votes'of freeholdersqonly,
and for that reason an election held under the
act was invalid; It follows from this'decision
that the election upon which the relator’s
claim depends did not give him a legal title
to the office.”
It follows in the present case that‘in view of the
admission that a large number of Women Were de-
nied the right to vote at the election upon Which»
the respondents in this proceeding based their right
to exercise the functions of the’ school board and,
library board, that they were neverlegally elected
as officers of said school district, and are not officers
of said school district, and are therefore not author-
ized to exercise the functions of the Board of School
Inspectors and Board of Library Directors.
The situation may be summed up in this Wise.
The City Council and the mayor of the City of St.
Paul either are the officers Of the school districtot
the City of St. Paul or they are not such officers.
If they are such officers‘theyhave’been elected
Without giving the womenthe right to vote at the
election.Their election is therefore
illegal unless
he functions of the school
adoptedsolelyit is lawful to merge t .
ditrict by purelylocal legislatlonr
“MTV“ uvw , \
88
by male votes, in the offices of another municipal
corporation territorially coterminous, thereby
evading the constitutional guarantees secured to
women by the amendment of 1898. If such merger
is not justified, either because not voted upon by
the electorate of the school district or because not
authorized by any constitutional or legislative pro-
vision, or because inconsistent with a constitutional
right, then the respondents are not legally exercis-
ing the powers of the school and library boards.
In order to justify such a merger, this court must
hold that where the school district is coterminous
territorially with a city, the male voters of the
school district may lawfully vest the functions of
the school district in the officers of the coterminous
city, and'this, notwithstanding that there is no
constitutional authority for it, notwithstanding
that there is no legislative authority for it, and that
if there were legislative authority it would be un-
constitutional, and that the local legislation at-
tempting to execute such a feat can do so only by
repealing the act of the legislature inconsistent
with it and by defeating the policy of the state and
the will of the people as expressed in their consti-
tution. Of Course, if it be contended that the coun-
cilmen and the mayor of the City of St. Paul are
not school officers, then they have no authority to
7- manage and control the schools and the school dis-
trict. “
(4)
»THE PROVISIONS OF THE COMMISSION
[CHARTER RENDER WOMEN INELIGIBLE
TOHOLDTHE OFFICES. '
89 ' “
It has already been pointed out that the Com:
mission Charter constitutes the council a.school
board and library board, and the Commissioner
“of Education the chief administrative officer of
such boards respectively. By thus vesting all
powers concerning schools and libraries in these
officers, the charter by its terms makesitim-
possible for women to exercise their constitutional'
right “to hold any office pertaining to the rman- ' ,
agement of schools and libraries,” without at the ‚*
same time holding the offices of councilman or '
mayor, in other words, Without holding offices which ' ‘ ‘7 "
the charter does not, and could not constitutionally, i ;
authorize women to hold.- > j , 3 '
That under the Constitution women are not" ~
eligible to the offices of councilmen and mayor, even 1‘:
under a charter Which makes those officesat the
same time “ofiices pertaining to the'management ‘\
of schools and libraries,” will be conceded.“ “
Const. art. 7, §§ 1, 2, 7,8. 4 : _, — ,
See also State vs. Gorton, 33 Minn. 345.(
It follows that it is not Within the power of the
framers of a home rule charter thus by indireCtiOD
to disobey the mandate of the constitution, and: a
by thus vesting the offices of councilman randmayor,
and the “offices pertaining to the managemept Of. '
schools and libraries” in the same elective Office“,
t0 make it impossible for women'to'hold the offices ’
which the constitutiondeclares theyzsrhallz have the
right to hold. ' ' ‘ '
In the case of State VS. \ of
the court, construing a'provision of the chm: a
the City of St. Paul Which attempted to ma ‘ ,
. . r. . .fice
geographicalliniit
ation'as’to eligibility to the o 7
"laminate Minn. 219
‘JU
of assembly-man, held that this was unconstitu-
tional as an attempt to add to the constitutional
qualifications for office.
So long as the school district exists, so long as it
must be ofiiceredr—nso long as men are eligible to
‚such ofiice, so long must prowl/(ms be made that
women, otherwise'qualified,must equally he elig-
ible to such position. They can no more be de-
prived of this right of equality With men by indi-
rection than they could be deprived of it by direct
legislation. Manifestly, an ordinance of the City
of ‘St. Paul stating that Women should not be qual-
ified for the positions of officers of schools, would
be unconstitutional. It is no less unconstitutional
' because the legislation is embodied in a charter.
Is it any less unconstitutional because the same
result is accomplished not directly by stating that
women shall be ineligible for the position of school
officer, but indirectly by placing upon the school
officers other duties which women are not author-
ized to perform and as a result of which women
are made ineligible to such position? If such leg-
islation can not be reconciled with the Constitu-
tion, then no constitutional rights are safe against
subterfuge.
It is noteworthy that while the Constitution gives
women the right to vote at any election held for the
> purpose of choosing school oflicers or members of
library'boards, it may be argued that it does not
expressly require that all school officers and mem—
bers of library boards shall be elective—when and
where they are elective, women/must be accorded
the right to vote. But, explicitly and unqualifiedly,
‘Women are made eligible to hold any office per-
91
mining to the management of schools and libraries
irrespective of the fact Whether such officers are
appointed or elected. While the constitutional
amendment of 1875 stated that the Legislature
may provide that women shall be eligible to hold
any office pertaining solely to the management of
schools, the word “solely” is omitted from the pres-
ent constitutional provision and, no doubt, inten-
tionally; The people wanted no limitations of any
sort upon the right of women to hold any ofl‘ice
pertaining to schools or libraries. They wanted
these offices open to all the people of the state.
They expressed their intent in language even’
broader and more forcible than they did with ref—
erence to the right to vote. Less ambiguous and
more succinct language can not be framed. The _
provisions of the Commission Charter place the ,
offices pertaining to the schools and libraries solely
in the hands of men. Such legislation can not be
sustained. r ' '
3. THE PROVISIONS OF THE COMMISSION
CHARTER RELATING ‘TO SCHOOLS AND/ '
LIBRARIES WERE NOT LEGALLY ADOPTED.„
The Commission Charter was submitted to and 4
was voted on and ratified by only, thevit‘lale vow”
of the city, in violation gt Const. m. 7, § 8, which’
provides that women may vote “31110? an)’ measure
relating to schools 01' libraries}?
That the charter, providing as it does for the
management and control of the schools and librar-
ies: is a “measure relating to schools and libraries”;
can not be seriously questioned „Even if the nes-»
tion were an open one, mama,” is, closed here
by the absence of any denial of the allegations con-
tained in the information and writ.
Const. art 7, § 8, provides that women may
vote “upon any measure relating to schools and
libraries.” The term “measure” is comprehensive,
and {must necessarily include every question relat-
ing to schools and libraries which can be sub-
mitted to the voters at any election, other than
the mere choice of officers. Under this head would
doubtless fall, for example, an election to determine
whether bonds should be issued for the construc-
tion of school buildings.
' ‘Hall vs. City of Madison, ‘128 Wis. 132, 107
N. w. 31. '
Or an election held on the question of increasing
' the debt limit of a school district.
Holmes & Bull Furniture 00. vs. Hedges, 13
' Wash. 696g 43 Pac. 944.
‚. Or an election upon the change of a school site.
St. Adler vs. School District 71, Minn.
311, 317.
If such minor questions as these must be
".“ submitted to women voters, at fortiori must a ques-
tion’which involves the whole frame of government
for the schools and libraries be submitted to them.
Otherwise; [if the provisions in the CommiSSiOD
Charter relating to the schools and libraries were
valid; and the women were thereby disfranchised
and made ineligible to office, every question would
be determined against them in advance by the men.
_ By reason of the fact’that the charter was sub-
.llfirttedionly to the male votersfit follows that the
charter election in so far as the charter attempts
to legislate on Schools and libraries was void and
z
93
that these provisions of the charter have/not been
legally adopted. ' ' . -
See Gould vs. Village of Seneca Falls,'118/N. Y.
s. 648; 12 N. Y. s. 723, 137 App. Div. 417; Cog-
goshall vs. City of Des Moines (Iowa), 117 N. W.
309.‘ '
In Gould vs. Village of Seneca. Fa-lls,supra, where ,
a proposition to establish a system of water works V
and to raise the necessary funds by issuing‘ bonds V —
was submitted to the voters at a village election, “
and women who possessed the legal qualifications
entitling them to vote thereon, were denied the
right, it was held that the election Was‘void’an'd
the bonds authorized thereby could not lawfully
be issued, and a motion for an injunction was
granted.' ' p
In Coggeshall vs. City of Des Mei/nes, supra, it "
was held that an election held to determine whether_ *
a city should erect a city hall, on which, by the
Code, womenwere entitled to vote, was void, where
the refusal to permit women to vote was not based
On disqualificationspeculiar to, the individual
women who offered to vote and whose votes would
based ontheir
not have changed the result, but was
being members of a class, and m
ore qualified women
voters than was necessary to overcome the major“?
hall resided 111
in favor of the erection of the city V V .
the City at the time of the election.‘ The council
after the election procured plansjand
specificatlons
for a building,purchased
a site, directed architects‚-
to Superintend the constructio
n, levied taxes, and
iIllicndedto issue bonds to _raise funds to pay the
contractprice, Plaintiffs
demandedthat further V
action by the council be enjoined, basing
it on the.
94
denial of the right of women to a vote, and it was
held that, the election being invalid, defendants
should be permanently enjoined from proceeding
thereunder.
In the case of Oppegaard vs. Board of Commis-
sioners, 120 Minn. 443, the court states emphatical-
ly, at page 450, that any school measure to be sub-
mitted to the “legal voters” at an election pursuant
to some statute must accord women the right to
vote under our Constitution in order to save the
statute and goes on to say, at page 451, that “all
true men are disinclined to restrict women in the
exercise of any civil right, which after long and
unjust denial has been restored to them.”
It is to the credit of the male voters of the state
that, keeping abreast with the times and actuated
by a “consciousness of tardy reparation or from a
belief, entertained by many, that full justice has
not yet been accorded to women,” women were put
upon an equal footing with men in matters edu»
cational. To hold that a part of the electorate
; may adopt a measure permanently disfranchising
the remainder of the electorate and at the same
time by indirection deprive such disfranchised
electorate of the right to vote upon a measure so
vital to them is unthinkable.
’0ppeigasard vs. Board of Commissioners, 120
_ Minn. 443.
If the school and library provisions of the Com-
mission Charter are sustained and given their
necessary effect, of what avail are constitutional
Prerogatives? Distranchised, may not the women
V of St. Paul justly say that they have been mocked?
V Men alone drafted‘the Charter; men alone peti—
95 _
tioned for its submission; men alone, as voters at
charter elections would be moved to read it and
know its contents; men alone voted for its adop-
tion; and when a woman finally comes to the polls
to cast a ballot pursuant to her constitutional
rights, as she supposes, she finds that a measure
relating to schools and libraries, never voted on by
the school electorate, has been adopted under the
guise of a charter which disfranchises her. Upon
investigation she finds that the very measure by
which she is disfranchised was adopted at an elec-
tion in which she was not permitted to participate.
Upon what grounds can such usurpation be jus-
tified? 7
It may be urged that, inasmuch as the constitu-
tional provision requires a Home Rule Charter to
be submitted only to “qualified voters” and inas-
much as women are not generally considered
“qualified voters,” the charter did not need to be
submitted to them. This may be true. It only
emphasizes our contention that under the guise of
a city charter the city electorate, composed entirely
of men cannot legislate for the electorate of the
school district, the latter including men and Women.
But even if the city by Charter amendment of the ' „
character of this charter can legislate upon 5011001
and library matters, it can never have been intended
that such legislation should be so framed that
‚Women should be denied their contsitutionalrights.
Who are the “qualified voters” in any case 111115‘:
be determined by the answer to the question, Who
are entitled to vote at the particular election. Thus
Rev. Laws 1905, § 154. (Genf St‘ ‘1913’ § 299,)
provides that “voter” shall mean ‚“An electon quail-
M
fled to vote at the election or upon the question
referred to.” In determining who are “the quali-
fied voters,” where the words are used in Const.
Art. 4, 536, that section must be read in the light
bf Const. Art. 7, @ s, for it may be noted that Const.
Art. .7, § 8, was adopted in 1898 subsequent to Art.
'4, § 36, whichiwas adopted in 1896. If Art. 4, § 36
is authority for school and library legislation, Art.
57, 8 requires its submission to Women voters
equally With men. The two sections must be con-
strued together, and if either affects the other the
later in time must be deemed to have modified the
earlier.
If, in adopting ‘a home rule charter, a city cannot
legislate for the school district, then the school pro-
visions in the charter are absolutely void. If such
charter may include the right to provide for the
' management of the schools, Const. Art. 7, § 8,
still requires that so much of the charter as per-
tains to'schools and libraries must be submitted
to both men and women voters, in order to be
legally adopted. The school and library provisions
„ _ Were admittedly adopted at an election at which
women Were denied the right to vote upon the char-
» 'ter or upon these provisions. They were therefore
never legally adopted and respondents herein have
no legal warrant for exercising any school or library
functions.
' ‚' There 'is a further consideration that must not
be overlooked. The people of the state conferred
rights of franchise and of office upon women not
‘merely ‘in order to bestow something upOH 5‘
favored<class, but in, order to have the benefit
‘of the judgment and services of such class. The
97
primary object is not merely to increase suflrage,
but to increase the class of people whose'knowledge
and skill will promote the ends of all government,—
the welfare of society. The people of the state
want the counsel and the energy of women in the
public schools and libraries in subordinate posi-
tions, in the management, in the selection of officers,
in the offices themselves, and upon all measures
pertaining to schools and libraries. The legisla-
tion here in question, the school and library pro?
visions of the charter of the City'of St. Paul, not
only deprive women of the rights granted them
by the people, but deprive the people of the cor-
relative right of the cooperation and interest of
the women in the management of schools and
libraries.
98
III
THE PROVISIONS OF THE COMMISSION
CHARTER WHICH PROVIDE THAT THE
' MAYOR SHALL ASSIGN THE COUNCILMEN
AS COMMISSIONERS VIOLATE SECTION 36
* OF ARTICLE 4 OF THE CONSTITUTIONOF
THE STATE 0F.MINNESOTAIN THAT THEY
WERE NOT FRAMED IN CONFORMITY WITH
THE PROVISIONS AND LIMITATIONSOF
CHAPTER 170 ~OF LAWS OF MINNESOTA
FOR THE YEAR 1909.
Article 4 of section 36 of the Constitution pro-
vides that “any city or village in this state may
frame a charter for its own government as a city
consistent with and subject to the laws of this state,
as follows.” There follow the provisions relative
to the board of freeholders and the submission of
the charter. Then appears the express limitation:
“Before any city shall incorporate under this act
the legislature shall prescribe by law the general
limits within which such charter shall be framed”
and again, with respect to amendments, the limita-
tion ‘fbut such charter shall always be in harmony
with and subject to the constitution and laws of
the State of Minnesota.” Manifestly, and by its
very terms, the Constitution therefore contemplates
obedience to the general law and limits the city
so to frame its charter that it assumes such powers
as are within the general limits prescribed by leg‘
islative act. ' '
Pursuant to the authorization which the Consti-
tution gave by this provision, the legislature en-
99
acted Chapter 170, Laws of 1909 (General Stat-
utes 1913, sections 1354-1360 inclusive). Sections
1, 3, 4, 5 and 7 of said act are as follows:
“Section 1. That the board of freeholders
appointed under the provisions of sections 748
to 755, inclusive, Revised Laws 1905, of the
State of Minnesota, and the amendments "
thereof, are hereby authorized and empowered,
in addition to all powers now granted to any
such board of freeholders, to incorporate as
part of the proposed charter for any city the
commission form of city government, and to {
provide that all elective city officers, including
mayor and members of the council, shall be '
elected at large or otherwise.” - .
“Section 3. Such board of freeholders may
also provide that the administrative powers,
authority and duties in any such cityrshall be, f‘
distributed into and among departmentsand’
may provide that the council may determine «7
the powers and duties to be performed by and °
assign them to the appropriate department, out."
and determine who shall be the head'of each,
department and prescribe the powers :and
duties of all ofi‘icers and employesfithereof,’and
may assign particular officers or, employesto
perform duties in two 01' more departments!.
and make such other rules and regulations as ,
may be necessary or proper for the efficient“
and economical conduct of the
city.”' _ v’ ‘ ,
“Section 4. Said board of freeholdersmay
incorporatein such charter pro
vxsmns defini-
ing the powers and duties of the mayor 3}; ;_
each member of the council, and may PTO" e 7
that each member of the council Shall Perfofm v
such administrative/duties ilS‘ma:.Y~b‘?
' h rter.” . f ” i
a;0 Such board bf freehold?“ may”
business‘ofrthe_; "‘ f" '
100
also provide for the recall of any elective
‘municipal ofiicer and for his removal by vote
of the electors of such city, and may also pro-
vide for submitting ordinances to the council
by petition of the electors of such city and for
the repeal of ordinances in like manner; and
may also provide that no ordinance passed by
the council except an emergency ordinance
‘shall take efl'ect Within a certain time after its
passage, and that if, during such time, a peti-
' tion be made by a certain percentage of the
electors of the city protesting against the pas-
sage of such ordinance until the same be voted
on at an election held for such purpose, and
then such ordinance to take effect or not as
determined by such vote.”
“Section 7. Nothing in this act contained
shall be held to abridge, impair or diminish
the right of electors in any city now having or
which shall hereafter have such a board of
freeholders and a home rule charter, to re-
quire ‘the submission of amendments to the
charter of such city, as provided in section 756
of the Revised Laws of 1905, but, in addition
to the provisions of said section 756, five (5)
per cent of the electors may, by petition, as
provided in said section 756, require the sub-
mission of amendments to such charter, emu
bodying the commission plan of government,
in Whole or in part, as more particularly
described and set forth in sections 1, 2, 3, 4,
5 and 6 of this act.”
' The Commission Charter provides'that the ad-
ministrative powers, authorities and duties in the
City of St. Paul shall be distributed into and
among departments, towit: The department of
Public Safety, the department of Public Works,
the department of Education, Libraries and the
101
Auditorium, the department of Parks, =Play
Grounds and Public Buildings, the department of
Public Utilities, the department of Finance, and de—
termines the powers and duties to be performed
by, and assigns them to, said departments re-
spectively, and provides that the heads of said de-
partments respectivelyrshall be the Commissioner
of Public Safety, ‚the Commissioner of Public
Works, the Commissioner of Education, the Com- ‘
missioner of Parks, Play Grounds and Public
Buildings, the Commissioner of Public Utilities
and the Commissioner of Finance. The Charter
further provides that the mayor shall determine
who shall be the head of eachrof said departments
and shall appoint as such heads of said depart-
ments from said councilmenthe said commissioners,
each of whom shall be respectively the head of one
of said departments as the mayor shall so determine
and appoint, and provides more particularly in
Sections 57 and 58 of the Charter as follows:
“Sec. 57. Immediately upon taking the oath
of office, it shall be the duty of the mayor to
assign one member of the newly elected coun—
oil as commissioner of public safety, one mem-
ber member of said council as commissioner
aid counc11 as
of education, one member of sf
commissionerof public works, one member 0
said council as commissionerof parks, play
grounds and public buildings,one member of
said council as commissioner of public utilities
d connoilas commis-
and one member of sai
sioner of finance.”
“Sec. 58. On thelirst
next after taking the oath of ofi‘ice the mayo;
may reassignat his discretion
any membeir of
the council,removing
him [from the hea 0
Mondayin Decembe
r
102
one administrative department and placing
, him at the head of any other, if, in the judg-
ment of ,the mayor the interests of said city
may be served thereby. Each councilman
shall, until the end of the term for which he
has been elected, continue to occupy the posi-
tion as commissioner which he occupies the
first Tuesday of said December.”
It thus appears that the act of 1909 authorizes
Aa charter to be framed in such a way that the
council (Section 3) shall have the power to deter—
:mine who shall be the heads of the several depart-
.ments and that the electors of the city (Section 5)
'shall have the power of removal by vote. And it
:then appears that the Commission Charter is in
fact so framed that the council has no such power
“and further that the mayor instead of the electors
is given the power to re-assign, replace and remove.
The inconsistency betweenthe act and the charter
is striking. if the power to appoint and the power
to‘remov'e were mere matters of detail, the im-
’ portance of the difference would, perhaps, not be
_so obvious. In the government of a large city there
is, however, scarcely any duty of more practical and
far-reaching importance than the appointment and
removal of the Officer upon Whom rests the re-
sponsibility‘ for the discharge of the functions and
duties of the head of a department. The very pith
and substance of the commission form of govern-
ment is claimed by the advocates of such govern'
ment to be the centralization and fixing of responsi—
bility upon those most qualified to bear it. Shall
it be left to one man, the mayor, to determine the
fitness of the :officer, for the particular position 01‘
— shall the council, collectively, choose the man f01'
103
the place? Was not that the question before the
legislature? If there were two possible methods
and one was expressly and specifically chosen; the
method so chosen becomes exclusive. When it is
remembered that in the act of 1909, the legislature
was dealing with the comparatively new problem
of city government by commission, it can scarcely
be held, in the absence of some expression to the
contrary and in the face of the fact that themat- — ‘ ‘
ter was one of enough importance to receive specific
mention, that other and different powers'were con-_
ferred than those which were expressed. Inthis
new field the legislature seems clearly to‘have’ " ‘»?
pointed the Way which must be followed. V '
By way of comment it may be‘proper tonotice
that the government in question is a government” ' V 4
by commission. To be such, and not merely to he \ i ‘
a sort of government “by the mayor’s committee,” v «
holding office at his whim, it is necessary that the
law give the council or commission the power of
appointment, and that the mayor‘shall’nothave
Such power coupled with a power ofrremoval." 7 '
The construction contended for is further borne \ «
Out by analysis of the enabling act itself“? Section
3, of Chapter 170, of Laws of .1909, says that “such ' '
board of freeholders may also PTÖVide (that is to
say, that the charter mayprovide) that the admin-
istrative powers, authority and "duties shall be due-
tl'ibuted into and among departments a
nd may pro-
Vide (that is to say again, that therchartrerrmay
PI'OVide) that the council maydetermine the
powers
«and duties to be performed by assign the):h
the ‘appropriatedepart 'ent andjdetermme
( a —
iS, the council: may determine)iwho sh
all be'the ; '
104
head of each department,” etc. Appointment of
heads of departments by the mayor forms no part
of this scheme of government. The exercise by the
mayor of such power is not comprised Within the
plan. The mayor does not figure in Section 3.
Again in Section 4, which supplements Section
3, it is provided that “such board of freeholders
may inconporate in such charter provisions defining
the powers and duties of the may and each member
of the council,” and that it “may provide that each
member ‘of the council shall perform such admin-
istrative duties as may be designated therein.”
Olearly Section 4 does not confer upon the mayor
the power of appointment of heads of departments
reserved to the council in Section 3. The mayor
stands with the Councilmen in the classification but
there is no indication that he may be given power
over and above them in the matter of their appoint-
ment. ‘
In Section 5 there is covered expressly the cor-
relative power of removal in the language that
"‘such board of freeholders may also provide for
the recall of any elective officer and for his re-
moval by vote of the electors of such city.” An-
- other limitation is set out covering ground similar
to that of appointment.
In Section 7 there is the further expression of
legislative intent in the way of limitation in that
provision is made for the submission of amend
ments to existing charters “embodying the commis-
-Sion plan of government, in whole ‘or in part, “'8
.movre pa/rticularly described (md set forth in Sec-
tions 1, 2, 3, 4, 5 and 6 of this act.
It is accordingly inconsistent with Sections 3 and
"”“—.,.
105
4 and with the act as a whole that the mayor shall
have the power to determine who shall be the head
of each department and it Would seem impossible
to spell out from the act itself, provided that it is
one which imposes limitations, any means by which
the powers of appointment and of removal may be
vested in the mayor. ' “ *
That the act imposes limitations upon the power ‚
of a city to frame the details of government by
commission is clear. The Constitution contem-
plates a law “prescribing the general limits within
which such charter may be framed.” The act of
1909 is such a law and this court has given itr‘recog-
nition as such.
State vs. City of Mankato, 117 Minn. 458; 136
N. W. 264.
In that case the constitutionality of Laws 1909,
c. 170, was upheld, and it was also held, among
other things, that the Mankato city charter does '
not transcend the constitutional limits imposed
By that charter the administrative powers, author-
ity and duties of the city officers, not otherwise pro-
vided for, were distributed and assigned to five
departments, to-wit:' (1) Department of public
health, sanitation, police and general welfare; (2)
Department of accounts and finances; (3) Depart-
ment of parks,7public grounds, buildings and fire
Protection; (4) Department of water works and
sewers; (5) Department of streets and alleys. . The
Mankato charter further provides, in (strict con-
formity With the act, that “the council shall; at the
ting after the election of its mem-
first re Iar mee _
g1]e counc11mau
bers, designate by majority vote on
- ne
to be superintendentof accounts and finances, o
106
to be superintendent of the department of parks,
public grounds, buildings, and fire protection; one
to be superintendent of the department of water
works and sewers; and one to be superintendent of
the department of streets and alloys” The court
said at page 470:
“We hold, further, that the act of 1909 does
not transcend the limitations imposed by
article 4, section 36. It is our opinion that
this provision merely prescribes the general
frame for a home rule charter, and hence that
it was competent for the legislature to leave
to the freeholders’ charter commission the
matter of determining the details of the local
government, Within certain general limits, and, ,
further that the latter do not preclude such a
distribution of the functions of the local gov-
\ ernment as is made by the Mankato charter.
* * * The only remaining question neces-
sary to be determined in this case is whether
the act of 1909 authorizes the Mankato char-
, ter, and we think it does. It is a broad grant
' * of power to fix within certain general limits,
all the details of the local government. It
’furthermore expressly provides that the board
of freeholders may distribute the administra-
: ‚tive powers, and prescribe the duties of the
_ officers, and may incorporate in the charter
provisions defining the duties and powers of
the mayor and each member of the council, and
may provide that each member of the council
.shall perform such administrative duties as
‘ \ may be designated in such charter. — The fore—
going, is, we think, precisely What has been
_ done in the Mankato charter.”
' VFinally, is a sufficient test to apply the rule
'flavpressio‘nnine exclusio‘ altering. When the leg-
islature authorized the charter to be so framed
107 1 “ <
that the council shall “determine who shall be the {
head of each department,’ and for removal of the
elective ofiicer “by the vote of the electors of'such .
city,” is not such specific mention of the exercise
of these powers made to the exclusion of their ex-
ercise by the mayor? It is the whole council in
which such a power would naturally be vested and
no reason appears why the legislature should take
pains to express what would otherwise’be implied,
if they intended not only that the council should
have the power but that the mayor: should have it
also. \
It follows that, in sovfar as the charter provides
for assignment by the mayor ‘of’ the members of the
council as commissioners and as heads of the respec-
tive departments, it fails to conform with the law '
and is invalid, and thatrthe assignment by the
mayor of a member of the council as Commissioner
of Education is inoperative. > , , _ r ;
It is respectfully. submitted that this, court
should make its judgmentrand decree ill/accord-
ance with the, prayer of the information and pur- V
suant to the writ. '‚ , “ )
LYNDON A. SMITH,
_ Attorney General, pro se,
‘MARGUS'D; MUNN, /
, CHARLES ‘E. \0TIS, ,
FRANCIS B. TIFFANY, 1 r
‚W. H. YARDLEY, ,
& _ JOHN F: FITZPATBICK,
FREDERICK G. ,INGERSOLL;
LL CHARLES BEGHHOEFEB,
,WrLLIAM G.’GRAVES:
. GUsTAvÜS IßEVINGEB.
' \ ' ‚ Of Counsel.
108 r
> APPENDIX.
‚The following cities have adopted home rule
charters under Const. art. 4, € 36, and in none of
them do provisions appear regarding the control
and operation of the public schools:
Date
,City.
Adopted.
Austin .......................1903
“Alexandria ...................
1909
Ada .........................1909
Anoka . ; .....................1913
Benson . . . .’ ................ 1908
Breckenridge .................1907
Bemidji .........' ............. 1905
Brainerd .....................1908
Blue Earth ...................1899
Barnesville ...................1898
Crookston ....................1906
Dawson . . . [ ..................1911
Duluth ......................1900
Ely ....... > ...................1903
Eveleth ......................1913
Fairmont ....................1901
Fergus Falls .......... v ........ 1903
Faribault ..........‘ .......... 1911
“ Granite Falls ....... -........ 1907
Glencoe .............. '........ 1909 ‚
Hastings .....................1907
Lake City .....................1909
Mankato ..................‚. . .1910
Moorhead ........ “ .......... 1900
Montevideo ..... ; ............. 1908
Morris .......................1913
, Northfield .......... ;. . .‘ ...... 1907
109
Ortonville .................... 1908
Pipestone ..........\ .......... 1912
Renville ..................... 1906
St. Cloud ..................... 1908
St. Cloud ..................... 1912
Sleepy Eye................... 1903
South St. Paul ................ 1905
Staples ...................... 1906
Tower ....................... 1902 ,
Tracy ........................ 1912
Two Harbors ................. 1907
Virginia ..................... 1909
Waseca ..................... 11904
Willmar ..................... 1901 «
Winthrop .................... 1907
Worthington ................. 1909 '
Warren .....................;1914
The following have adopted home rule charters
under the same constitutional provisions:
Rochester .................... 1904
In this charter Chapter 10 provides for regula-
tion and government of public schools as provided
for in the special act which Was in operation at the
time the charter was adopted (Spec. Laws 1891,
€. 48, subchap. 10). The special act in the words
of the charter is “continued in force and excepted
from repeal or modification.” » V ‚ '
West St. Paul. . . . . . ; .......... 1907, ,
Chapter 8 of this charter provides for an elec-
tive board of education of five members and con—
tains various other provisions for the government
of ‘ 1 b them. 9 4 \pubhc schoos y , 1900 4 (
. 1 ............‘..’........
St Paul..... ;.’„19
12
St. Paul. . ._._