Kaufman v. County of Swift , 225 Minn. 169 ( 1947 )

I think that entering into the agreement between the county and the city and then acting jointly under the agreement are by the terms of the statute conditions precedent to the issuance by the county of any bonds for the purposes mentioned or taking any steps for that purpose.

The statutory and charter provisions cited in the majority opinion authorize the county and the city separately to provide for a county and a city hospital respectively. There is no statutory provision authorizing the county to provide a city hospital nor any charter provision authorizing the city to provide a county hospital. Absent such a statute, the county lacks power to provide a hospital for the city. Village of Glencoe v. County of McLeod, 40 Minn. 44, 41 N.W. 239; Borough of Henderson v. County of Sibley,28 Minn. 515, 11 N.W. 91.

Where there is no statute governing the matter, a county and a city each having the power to erect and maintain a hospital may join in the exercise of their respective powers to provide one hospital for both the county and the city. White v. City of Chatfield, 116 Minn. 371, 133 N.W. 962; Annotation, 123 A.L.R. 997.

But here there is a statute regulating the joint exercise of the separate powers of the city and the county. I take it that it is too elementary to require citation of authority to the effect that the mode of exercising the powers of the county and the city is subject to legislative regulation. For example, it seems that there can be no reasonable basis for contending that the city and county board of control of the county of Ramsey and the city of St. Paul, provided for by Sp. L. 1876, c. 77, as amended by Sp. L. 1883, c. 54, as amended by Sp. L. 1885, c. 78, has the power to issue bonds which by statute is vested in the county and city jointly. See, Kempien v. Board of Co. Commrs. 160 Minn. 69, 199 N.W. 442. Likewise, no one can well contend that the county of Hennepin and the city of Minneapolis had the power to issue bonds to provide for a new courthouse and city hall under the statutes involved in State ex rel. Bd. of C. C. H. Commrs. v. Cooley, 56 Minn. 540, 58 N.W. 150, which vested that power in a board of courthouse and city hall commissioners. Where a statute authorizes a county or a city to issue bonds in a certain manner, the manner specified is exclusive, and compliance therewith conditions the validity not only of the exercise of the power, but also that of any bonds issued thereunder. Goodnow v. Board of Co. Commrs. 11 Minn. 12 (31); Rogers v. Le Sueur County, 57 Minn. 434, 59 N.W. 488.

The provisions of § 471.59, under which the county assumed to act, when considered as a whole, reveal a legislative intention that an agreement for joint action shall be the basis for any action at all. It provides in subd. 1 that by an agreement entered into a county and a city may jointly exercise any power common to both. The agreement is required to define what action shall be taken and how it shall be exercised jointly. Hence, the agreement is a condition precedent to any action at all, and in any event there must be joint action by the parties.

Subd. 1 of § 471.59, authorizing a county and a city "by agreement entered into through action of their governing bodies" to "jointly exercise any power common to the contracting parties" (italics supplied), should be construed in connection with subds. 2 and 3, which read:

"Subd. 2. Such agreement shall state the purpose of the agreement or the power to be exercised and it shall provide for the method by which the purpose sought shall be accomplished or the manner in which the power shall be exercised.

"Subd. 3. The parties to such agreement may provide for disbursements from public funds to carry out the purposes of the agreement. Funds may be paid to and disbursed by such agency as may be agreed upon, but the method of disbursement shall agree as far as practicable with the method provided by law for the disbursement of funds by the parties to the agreement. Strict accountability of all funds and report of all receipts and disbursements shall be provided for."

It is clear that under subd. 1 the county has no power to act with respect to the matter at all, except by agreement entered into with the city, and then only through the joint exercise by the county and the city of their separate powers in the premises. Where a statute grants a joint power, it can be exercised only by all the grantees acting jointly or together. One of them cannot act alone. Reclamation Dist. No. 3 v. Parvin, 67 Cal. 501, 8 P. 43. Here, because there was no such agreement, the county in attempting to issue the bonds in question is attempting to exercise alone a power that was granted to it and the city jointly. This it cannot do.

This construction of subd. 1 is underscored by the first sentence of subd. 3, to the effect that the parties to such anagreement may provide funds to carry out the purposes of theagreement. It seems clear that this language means (1) that the county cannot issue the bonds in question unless it is a party to such an agreement; and (2) that the purpose of issuing the bonds must be to carry out the agreement. Here both requirements are lacking. The county is not a party to such an agreement. Because there is no agreement, the purpose cannot be, and is not, to carry out any agreement.

If the action of the county should be upheld and later it should develop that the county and the city were unable to agree upon the terms to be embodied in the agreement, the county would be in the position of having raised money by the bond issue for a purpose impossible of achievement. That purpose is the only one for which the bonds may be issued under the statute. There is no authorization for the loose and purposeless administration of public finances disclosed here. It is not only unauthorized, but it is calculated to increase an already burdensome public indebtedness.