Agenda - Charter Commission - 07/10/1997

Home

William K. Goodrich April 15~ 1996 Page 4 amendment to the voters, and prevents unusual claims of delivery where the provisions of Section 410.12, Subd. 3 and 410.10 are not clearly in harmony. Both the Minnesota Supreme Court and Attorney General's Office have opined that it is the duty of the council to submit amendments to election unless they are manifestly unconstitutional. In State ex tel Andrews v. Beach, 191 N.W. 2d 1012, 155 Minn. 33 (1923) that duty was said to continue even where a city council failed to submit such amendments as directed by statute. Since the city council did not submit the matter, the court established the time and ordered an election. The attorney general, by Op. Atty. Gen. 58-C, April 2, 1948 has stated that "...it is the duty of the council.., to call a special election to vote on the proposed amendment within 90 days after the delivery of the proposed amendment .... "You are quite correct in pointing out that in this opinion and others the "delivery" date is not identified. In my opinion, it would be more correct, and within the views of Beach and the Attorney Generals' opinion, to recognize that the duty of submission is mandatory but at the same time consider the procedural provisions of the statute as directory. As pointed out in State v. Frisby, 108 N.W. 2d 769, 260 Minn.70 (1961) provisions of a statute are not construed as mandatory where they "do not relate to the essence of the thing to be done, are merely incidental or subsidiary to the chief purpose of the law, are not designed for the protection of third person, and do not declare the consequences of a failure of compliance .... "If this view is correct, mere irregularities would not invalidate the vote. I hope this addresses the questions you raised. If additional discussion is needed please call me at 337-9211. FBO:ds cc: ' - David' J.' Kennedy '! Olson