Loading...
HomeMy WebLinkAboutAG Opinion re Membership 1950 58g-19500928MUNICIPALITIES 145 meantime, X's term had expired and he was succeeded by Commissioner V, who allegedly had told A that if his vote in favor of B Company's bid was to be had, he had to be paid. "Several bids were received by the County Board at its February 8, 1949, meeting, including that of B Company. Said County Board voted to purchase the truck of B Company for $6500.00, said truck to be delivered immediately. "The truck was delivered to the County on or about February 15, 1949. However, after careful inspection, it was not as represented, because of several defects making it inoperative. "Since said date the truck has been put in usable condition by B Company, but the County has not paid the purchase price of the truck, nor has the agreed bribe begn paid by A or B Company to any of the Commissioners. °`X, Y, and Z have been convicted of receiving a bribe; however, not the bribe involved in the above recited facts. V has been charged with asking for a bribe, one not involved in the above facts. His case is still pending. X, Y, and Z have allegedly admitted the facts above recited." Question May the county legally pay for the truck in view of M. S. A. 375.09, assuming that the county board wishes to pay for the truck, being of the opinion that it is worth the contract price? Opinion The answer is "no." There is no basis for payment. This contract, in view of M. S. A. 375.09, is void. There is no contract. The county is in possession of a truck which is owned by the B Company. The county board has no authority to authorize the payment. CHARLES E. HOUSTON, Assistant Attorney General. Winona County Attorney. September 17, 1949. 125-A-17 BOARDS AND COMMISSIONS Charter commission — Members — Number — Majority — Amendments to charter — Should be proposed by a charter commission having its full complement of 15 members or a majority of the commission having a full complement of 15 members. -44 146 MUNICIPALITIES Facts "The Charter Commission of the City of Owatonna has prepared an amendment which it wishes to present to the voters at the next election. "However, six members have resigned from the Charter Commis- sion and it consists only of nine members. Eight of the nine members have voted to present the amendment to the voters." Question "Is it necessary that a Charter Commission have its full comple- ment of fifteen before it can legally propose a Charter amendment?" Opinion The question is answered in the affirmative. Art. 4, § 36 of the Constitution, authorizes the legislature to provide "* " * for a board of fifteen freeholders who Shall be and for the past five years shall have been qualified voters thereof, to be appointed by the district judges of the judicial district in which the city or village is situated, * * *" for a term within the limit therein prescribed. This constitutional provision further directs that the board: "shall be permanent, and all the vacancies * * * shall be filled by appoint- ment in the same manner as the original board was created, and said board shall always contain its full complement of members. * * *" Another portion of Art. 4, § 36 of the Constitution, applicable to your inquiry provides: "* * * Such charter so deposited may be amended by proposal therefor made by a board of fifteen commissioners aforesaid, * * *" The board of fifteen freeholders authorized by Const. Art. 4, § 36, is provided by the legislature in M. S., § 410.05. The board is commonly called the Charter Commission, M. S., § 410.12, Subd. 1, provides that the "* '* * board of freeholders may propose amendments to such charter, and shall do so upon the petition of five per cent of the voters of the city. * * *" Subd. 4 of that section prescribes that "Amendments shall be submitted to the qualified voters * * * as in the case of the original charter. * * " Both the Constitution (Const. Art. 4, § 36) and the statute (M. S., § 410.07) provide that the original proposed charter shall be delivered or MUNICIPALITIES 147 submitted to the chief executive of the municipality signed by the members of the board of freeholders or a majority of its members. "Majority of its members" means a majority of its full complement of fifteen members. The constitutional provision here involved, as well as the statute enacted in pursuance thereof, provides a simple and expeditious method for filling any vacancies which may, from time to time, exist in the full complement of the board's membership.' The mandate of the Constitution that the "board shall always contain its full complement of members" is clear and unequivocal. It is not lightly to be brushed aside. Equally clear and almost as emphatic is the constitu- tional direction that amendments to the charter may be initiated by proposal "made by a board of fifteen commissioners." Substantial considerations underlie these constitutional requirements. One of these reasons is, unques- tionably, to provide assurance that any charter or amendment thereto pro- posed would evolve, before submission to the chief executive officer of the municipality, out of the studied consideration, discussion, debate and delib- erate judgment of fifteen resident freeholders of the municipality. While both the constitution and the statute authorize a majority of the members of a board of fifteen to propose, it does not follow that eight or more mem- bers of a board having less than the full complement of fifteen members are possessed of that power or authority simply because the number eight or more is a mathematical "majority" of the number fifteen. To so hold would, in my opinion, be tantamount to saying that the mandatory provi- sions of the Constitution here considered are wholly meaningless. Nor have I overlooked the circumstance that even if the Charter Commission of the city of Owatonna did have presently its full complement of fifteen members, eight of its present membership of nine "have voted to present the amend- ment to the voters." But that factor is not a controlling one on the legal question involved. The question is one of legal authority. To be sure, if six additional resident freeholders should now be appointed so that the Com- mission did have "its full complement of members" those six might, con- ceivably, in their considerations and discussions of the proposed amendment involved, agree with the ninth present member who has not voted to present the amendment; and, also conceivably, they might, in that process, convince one of the eight remaining members that the amendment should not be proposed. If your inquiry presented a situation where an amendment to the charter had been proposed by eight or more members of the Charter Commission not having at the time thereof "its full complement of members" and the proposal so submitted had been duly adopted and ratified by the electors, a different question would be presented. But that is not the situation here considered. The proceedings involved in your question are still in their preliminary stages. In these circumstances we are of the view that full effect should be given to the constitutional requirements that the "board 'Vacancies therein shall be filled by appointment for the unexpired term or terms by the dis- trict judges of the judicial district in which the municipality is situated. Const. Art. 4, § 36 ; M. S. 1949, § 410.05. 148 MUNICIPALITIES shall always contain its full complement of members" and that the proposal to amend should be "made by a board of fifteen members" or "a majority thereof," and not by a board of nine members. Steele County Attorney. September 28, 1950. LOWELL J. GRADY, Assistant Attorney General. 58-G Equalization — Council members are not entitled, for their services on board, to extra compensation over that prescribed by § 412.181, M. S. 1949 — M. S. 1949, §§ 274.01, 412.181, subd. 9. Facts M. S. 1949, § 412.181, prescribes the schedule of salaries of the mayor and trustees in villages of this state. Subd. 9 of that section prescribes that in any village to which that subdivision is applicable "the salary of the mayor is fixed at $2 per day or meeting for each day's service necessarily rendered or meeting attended, with a maximum of $30 per year, and the salary of each trustee is fixed at $1.50 per' day or meeting for each day's service necessarily rendered or council meeting attended, with a maximum of $20 per year." We gather from the tenor of your inquiry that subd. 9 of § 412.181 is applicable to the Village of Albany. Question "May members of the village council be paid for services rendered on the board of review under M. S. A., Sec. 274.01 ?" Opinion M. S. 1949, § 274.01, provides that the governing body of each village shall be a board of 'review. The members of the village council, acting as a board of review under § 274.01, are not entitled to any compensation other than that which they are entitled to receive under § 412.181 for their services as village officers. In other words, for their services on the board of review they are not entitled to extra compensation over and above that prescribed by § 412.181. LOWELL J. GRADY, Assistant Attorney General. Albany Village Attorney. December 29, 1950. 406-E