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        CITIES: CONSOLIDATION: ELECTIONS:                Voter approval of consolidation requires
        affirmative vote of majority of persons voting on the question. Minn. Stat. § 414.01, subd. 6
        (1998).

                                                                                                    484e-1
                                                                                         (Cr. ref. 185b-2)


                                                October 5, 2000


    R. Lawrence Harris                                   Thomas J. Radio
    Melchert Hubert & Sjodin                             Hinshaw & Culbertson
    121 West Main Street                                 Piper Jaffray Tower, Suite 3200
    Suite 200                                            222 South Ninth Street
    Waconia, MN 55387                                    Minneapolis, Minnesota 55402-3336



    Dear Mr. Harris and Mr. Radio:

              In your letter to Attorney General Mike Hatch you relate substantially the following

                                                    FACTS

                     On March 3, 1997, the Minnesota Municipal Board by its own motion,
              pursuant to Minn. Stat. § 414.041, subd. l(c), initiated consolidation proceedings
              between the City of St. Bonifacius and the City of Minnetrista. On August 5,
              1997, the Minnesota Municipal Board appointed a Consolidation Study
              Commission chair and the members of the commission.

                     On June 4, 1999, the Office of Strategic and Long-Range Planning ("State
              Planning") as successor to the Minnesota Municipal Board 1 received a report of
              the Consolidation Study Commission, which report recommended the
              consolidation of the City of Minnetrista and the City of St. Bonifacius into a new
              city named Minnetrista.       State Planning held a public hearing on the
              Consolidation Study Commission report on July 28, 1999.

                     By order effective January 18, 2000 State Planning accepted the report of
              the Consolidation Study Commission and directed the consolidation of the City of
              Minnetrista and the City of St. Bonifacius into a single city, subject to adoption of
              the order by a majority vote of the respective city councils and voter approval.


    1
     Under Minn. Stat. § 414.11 (Supp. 1999) the Municipal Board was abolished on June 1, 1999,
    and its authority and duties were transferred to State Planning.
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     Messrs. Harris and Radio
     Page2



                    Pursuant to Minn. Stat. § 414.041, subd. 6(c), if the consolidation
            proceedings are initiated by the Municipal Board's own motion the consolidation
            is not effective until adopted by the council of each municipality and approved by
            their qualified voters at a general or special election set according to law. The
            city councils of both St. Bonifacius and Minnetrista rejected the consolidation
            order. Within 90 days of the rejection of the consolidation order by the two
            councils, each city received a petition signed by ten percent or more of their
            resident voters who voted for governor at the last general election petitioning for a
            referendum on consolidation. Subsequent to receiving the petitions, the city
            councils met jointly with State Planning staff and set a referendum on the
            consolidation for the next general election, November 7,2000.
                   Because each city council disapproved the consolidation order, the issue is
            being placed on the ballot pursuant to Minn. Stat. § 414.041, subd. 6(d) which
            provides as follows:

                   Notwithstanding a disapproval of the board's order for consolidation by a
                   city council of an affected municipality required to approve the board's
                   order in clause (a) or (c), the board's order for consolidation shall
                   nevertheless be deemed approved by that city council if ten percent or
                   more of the resident voters of that municipality who voted for governor at
                   the last general election petition the city of council for a referendum on the
                   consolidation as provided in clause (a), and a majority of those voting in
                   the municipality approve the board's order for consolidation.

            (Emphasis added).

            You then ask substantially the following

                                               QUESTION

                   Does Minn. Stat. § 414.041 subd. 6(d) require that the consolidation order
            be approved by a majority vote of all persons voting at the general election or a
            majority vote of all persons voting on the issue of consolidation?

                                                OPINION
            We answer your question in the negative. In our opinion the consolidation will be

    effective if it is approved by a majority of those who vote on the question of consolidation in

    each city.
    Messrs. Harris and Radio
    Page 3



           Under Section 414.041 subd. 6(d), approval of consolidation must be by "a majority of

    those voting in that municipality." At first impression that language is ambiguous. It could be

    taken to refer to those voting on consolidation, or in the case of a referendum held at the same

    time as a general election, to all of those casting ballots for any office or question. In our view,

    that ambiguity must be resolved in favor of counting only voters on the consolidation question.

           First, requiring majority approval of all voters would be contrary to long established

principle. As noted by the Minnesota Supreme Court in Dayton v. City of St. Paul, 

,

403 (1876):

           It is the general rule, in affairs of government, that an election, or a voting,
           whenever called for, is to be determined by the votes of those who vote to fill the
           office which is to be filled, or for or against the proposition which is to be adopted
           or rejected, and not by counting, on either side, those who do not vote at all. To
           take a case out of this general rule requires a clearly manifested intention to apply
           a different one.
In that case, the court held that the requirement that a constitutional amendment to be ratified by

"a majority of the voters present and voting," required only a majority of those voting on the

amendment itself. The court contrasted the quoted language with other language in the same

constitutional article, requiring that a call for a constitutional convention be approved by "a

majority of all the electors voting at [the next general] election." 2            Consistent with that

distinction, decisions requiring a majority vote of everyone voting at general elections have

construed constitutional or statutory language that expressly called for approval of a proposition

by a majority of those "voting at [a particular] election." See, e.g., Eikmeier v. Pipestone Co.,


2
 The Constitution was later amended to require that proposed constitutional amendments also be
approved by ••a majority of all the electors voting at [a general] election." (1897 Minn. Laws, ch.
185.)
     Messrs. Hanis and Radio
l    Page 4



     

, 

(1915) and cases discussed therein. In this situation, the statutory

     language does not expressly require that the consolidation be approved by a majority of all

     persons voting at a general election.

            Second, it is important to remember that on November 7, 2000, the voters of St.

    Bonifacius and Minnetrista will be able to participate in at least two different elections. One will

    be the general election for various national, state and local offices. The other will be the

    consolidation referendum. Though they could have been scheduled for different dates, State

    Planning, in consultation with both city councils, set the referenda at the time of the general

    election; presumably for reasons of economy and convenience of the voters. Nevertheless, they

    are distinct electoral activities. To construe section 414.041 subd. 6(d) as requiring consolidation

    approval by a majority of all electors voting in the general election would mean that the standard

    for voter approval could depend entirely upon the timing of a consolidation proposal. That

    timing, normally bearing no relationship to the merits of a consolidation proposal, would often

    be the result of arbitrary circumstances.       In some circumstances, it could be subject to

    manipulation in an effort to affect the outcome of the election.

           Under section 414.04, subd. 6, when a consolidation referendum is ordered as a result of

    a petition submitted by the voters, the election must be held within six months of the receipt of

    the petition. 

(b), and (d). In the instant case, the timing of the State Planning

    order, and the petitions by the voters, were such that the referenda could be scheduled to coincide

    with the November biennial general election. However, such coincidental scheduling is possible
    Messrs. Harris and Radio
    Page 5



    for less than one-quarter of the 24-month general election cycle.3 For most of that time, a

    consolidation referendum would need to be held as a special election, apart from any general

    election. In those instances only persons going to the polls to vote in the special election could

    be counted. In our view, to require that a higher number of affirmative votes be cast only when

    the vote can be held at a general election due to the time when the issue arises would be an

    unreasonable result, not intended by the legislature. See Minn. Stat.§ 645.17(1).

           This analysis is consistent with Godward v. City of Minneapolis, 

, 250

N.W.719 (1933) where the court concluded that a vote on a charter amendment was to be viewed

as a separate special election even though held concurrently with a general election. See also 26

Am. Jur. 2d Elections, § 409 which reports in part:

           Where it is contemplated that a proposition may be submitted at either a general
           or special election, the fact that, for convenience, it is submitted at the former,
           does not alter the character of the election as a special election, and therefore a
           majority only of the votes case on the special question, although less than those
           case for officials, is sufficient. (footnote omitted)

           Finally, we have considered that section 414.041 subd. 6(c) states that a consolidation

initiated by municipal board action and approved by the city council; will be effective if favored

at referendum by a majority of "votes cast on the question," but such explicit clarification is not

contained in paragraphs (a) or (d), under which these referenda are to be held. In your letter you

suggest that such an omission could indicate legislative intent to require only a majority of those

voting on the question when the city councils have already approved the consolidation, but to




3
  Given the statutory requirements for advance notice, referenda could not normally be ordered
less than 45 days before an election. See Minn. Stat.§ 205.16.
 Messrs. Harris and Radio
 Page6



 require a higher standard when the councils have not so approved. That argument is not

 persuasive.

           The "majority of those voting" requirement in paragraphs (a) and (d) is not limited to

 instances when the city council has failed to approve. It also applies to petition-initiated

 elections when the councils did approve. 

and (b). As noted above, if the alternative

 construction were adopted, the standard for computing the requisite voting majority would

 depend on the arbitrary factor of timing, not council approval or disapproval.

           For these reasons, it is our view that the consolidation proposal will be adopted if

approved by a majority of the voters voting on that proposal.


                                                 Respectfully submitted,

                                                 MIKE HATCH
                                                 Attorney General




                                                 KENNETH E. RASCHKE, JR.
                                                 Assistant Attorney General




AG: 408731,v. 01