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<br />by [he fact that the interested councilman dId
<br />not participate in the proceedings or that his
<br />vote was not essential to approval of the contract
<br />by the council. See Stone v. Bevans, 88 Minn.
<br />127, 92 N.W. 520 (1902); City of Minneapoh$
<br />v. Canterbury, 122 Minn. 301, '142 N.W. 8]2,
<br />48 L.R.A. (N.S.) 842 (1913). it is the existence
<br />of such interest and not its actual exercise which
<br />is decisive. McQuillin, Municipal Corporations,
<br />Sec. 29.97 (3rd Ed., 1966). That the council
<br />member acted in good faith and that the contract
<br />was fair and reasonable do not affect the contract's
<br />legality. See CurHev. School District° supra;
<br />· ,~ingewald v. Minneapolis Gas Co., 274 Minn.
<br />556,142 N.W. '2d' 739 (1966).
<br /> In a long line of rulings on the subject, th~
<br />Attorney General ha/, emphasized the fact that
<br />under M.S. 471.87, the proscription applies to'
<br />any council member who ts authorized to take
<br />b'art in any manner in the making of the contract.
<br />Had the legislature intended to exclude from the
<br />prohibition the situation where the officer abstains
<br />from ~,oting, he reasons, it would have said a public
<br />o;~,cer "who takes part" in any manner in the
<br />contract makings. See, for example, A.G. Op.
<br />90-E-5, LMC 130d, Nov. 13, 1969.
<br />
<br /> · -- Some doubt is cast on this view by a dictum
<br />'!, the $inge;vaM case involving a franchise let to
<br />z ct~mpany of which one council member was an
<br />employee. The brief unsigned opinion contained
<br />this statement (dictum because the council mere-
<br />beds vote was one of the three required to con-
<br />stitute a favorable majority): "We do not subscribe
<br />to the principle that council action should be
<br />vitiated in situations such as this if the vote of the
<br />councilman directly or indirectly interested in
<br />the contract would not be determinative of the
<br />action taken."
<br />
<br /> As the Attorney General has pointed out,
<br />this dictum is against the weight of authority
<br />on [his issue. (McQuillin, Munictpal Corporations,
<br />Sec. 29.95), 3rd ed. 1966.) It is also contrary to
<br />the holding in City of Minneapol~ v. Canterbury,
<br />supra. Therefore, the Attorney General takes
<br />the view that until such time as the Supreme Court
<br />specifically overrules the earlier case, he is guided
<br />by ii, at decision and the general weight of authority
<br />on this issue. (A.G. Op. 90-E-5, i_MC 130d, Nov. 13,
<br />1969.)
<br />
<br /> It may be observed that the SingewaM 'case
<br />held that the franchise may ha,,e been void under
<br />the statutory code section on confbct of interest;
<br />it was presumably not void under the more general
<br />prohibition of M.S. 471.87 which, unl&e the
<br />statutory code section, contains the reference to
<br />the official "who is authorized to take part" in
<br />,'
<br />~ne Jetting of the contract. It is a o ,~u e, therefofe,
<br />that if thc Supreme Court really intended to change
<br />the rule on the ~alidity of a contract adopted
<br />vA:hour :he necessary vote of the interested
<br />
<br />council member, it may have intended to do so
<br />only w.th reference to contracts to which M.S.
<br />· 412.311 alone apphes. This is somewhat specu-
<br />lative, home,er. Much the safest course of action
<br />is to assume that contract prohibited under the
<br />conflict of interest statutes is still void in Minnesota
<br />regardless of the extent of the interested council "
<br />member's participation in the transaction. Where
<br /> a contract with an interested council member calls
<br /> for the pe:fo~mance of personal services,and some
<br /> or all of the services are performed, the council
<br /> member may neIther recover on the contract nor
<br /> recover the..r reasonable v~lue on the basis of an
<br /> implied contract. If the council member has
<br /> already received payment, restitution to the city
<br /> can be compelled. Thus, where pursuant to council '-
<br />authorization, the mayor is compensated for
<br />services to the city rendered independent of his
<br />duties as mayor, a taxpayer may recover the money . ...
<br />for the city without regard to the merit of the
<br />sec, ices. It is irrelevant that the mayor was not .'.'
<br />present at the meeting at which the agreement
<br />for compensation was adopted. (Stone u. J3evans,
<br />88 Minn. 127,92 N.W. 520, 1902.) . .. :.
<br />
<br /> If a council member has made an unlawful '
<br />sale of goods to the city and 'the goods sold are' '--
<br />in such condition that they can be returned, a
<br />court wilt p;obab!y order restitution and forbid
<br />any payment for the goods. See Frisch v. City
<br />of Sr. Charles, 167 Minn. 171, 208 N.W. 650 .
<br />0926). Such d~sposition might be ordered, for
<br />example, when a lot.has been purchased from a
<br />council member and no building has been erected '
<br />upon it o~ a supply, 'such as lumber, has been -
<br />furnished and not yet used. However, if the goods
<br />cannot be returned and if the contract was not .'..:
<br />in itself ultra lqre$ (i.e., beyond the powers of"
<br />the city) and there was no fraud or collusion '
<br />in the transaction, the Court will inquire into ....':
<br />the reasonable value of the property and permit .--
<br />payment on the basis of value received. (First
<br />National Bank of Goodhue v. Village of Goodhue,
<br />120 Minn~ 362, 139 N.W. 599, 1913; ),lares v. ' '
<br />Janutka, 196 Minn. 87, 264 N.W. 222, 1936; : .
<br />Kotsche~ar v. North Fork Township, 229 Minn.
<br />234, 39 N.W. 2d 107, (1949, where prior decisions
<br />are rex-iewed-and a dissenting opinion strongly :-
<br />u,ges adoption of a stricter rule in Minnesota.) .:.
<br />
<br /> . 'M.S. 47!.87 provides that every' public
<br />officer who violates the restriction of that section
<br />against official inte.est is guilty of a gross mis-
<br />demeanor. This criminal prohibition focuses upon·
<br />the officer having a personal interest in a contract;
<br />hence, others who part:cipate in the contract
<br />making cannot be convicted of an offense under
<br />this statute. However, M.S. 609.43 provides that a
<br />pubbc officer who, in h~s capacity as such, does
<br />an act which he kno~s is in excess of his lawful
<br />authority or wh:ch he knows he is forbidden by .
<br />law to do ~n h.s official capacity may be sentenced
<br />to imprisonment for not more than one year or
<br />to payment of a tree of not more than $1,000
<br />
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