Op. Atty. Gen. 106e

COUNTY SEAT: REMOVAL: Petition not invalid due to claims that signatures not personally
observed by affiants: Effect of conditional offer of site and funds for construction.

Apni 10, 1995 106‘@

Michelle E. Moren

Roseau County Attorney

Office of the Roseau County Attorney
309 1/2 Third Street NW

P.O. Box 239

Roseau, MN 56751

Dear Ms. Moren:

ln your communication with our office you provided substantially the following:
FAC'I`S

A petition drive is underway to secure signatures of persons supporting a
change in the county seat of Roseau from the City ot` Roseau to the City of
Warroad.1 Signatures for the petition have been collected, at least in part, by
means of separate cards distributed in person or by mail to individuals within
Roseau County inviting legal voters of the county to complete, sign and return
the cards to the petition proponents in person or by mail.2 You note that Minn.

l. S_e§ Op. Att. Gen. 106-3 lanuary 24_ 1995 wherein we addressed issues concerning
qualifications of signers of such petitions.

__ The form of the petition cards are substantially as follows:
To the County Board of Roseau, Minnesota:

The undersigned legal voter of the County of Roseau requests that the County Seat be changed to

Harroad.
Signature Date
Name (please prinr) First, Ml, Lasr Phone
Address

City, State, Zip

70 Sign this petition you must be a resident of Roseau County, a United Srates Citizen and 18 years of

age or older. lf sufficient signatures are collected, a special election will be held to vote on the
question of changing the County Seat to warroad.

~€E§bscs

Michelle E. Moren
Page 2
April 10, 1995

Stat. § 372.01 (1994) requires that such a petition. when presented to the county
auditor, must be accompanied by affidavits of at least two of the signers stating
that

(a) the petition signatures are genuine,

(b) they were signed within 60 days before the date of the affidavits,
and

(c) when signing the petition the petitioners were legal voters of the
county.

Minn. Stat. § 372.0] (1994)

Petition proponents have stated that they intend to take various steps to
verify the genuineness of the signatures and other data submitted including
telephoning each person submitting a card by mail and checking petition
signatures against signatures on the county's voter registration lists where
possible.

In connection with the petition efforts, funds amounting to $4.5 Million have
been contributed to the City of Warroad to be used in construction of a new
courthouse1 social services complex and jail. The City of Warroad, by resolution
of its city council on February 13, 1995, has resolved to "provide" to Roseau
County, if the county seat is moved to Warroad:

i. land located in Warroad suitable as a site for the courthouse and related
buildings;

2. utility and road access to the site. and

3. costs of construction up to 54.5 Million.

The resolution further provides that if the county seat is moved from Warroad
within 25 years from the date of the "gift." the ownership of the land. buildings
and related improvements will revert to the City of Warroad. lt is not clear
whether the funds. property and improvements to be provided by the City of
Warroad pursuant to the resolution would be sufficient to cover all building and
related costs associated with relocating the county seat.

You then ask substantially the following questions:

3. in Op. _Atty. Gen. 106-e. January 24. 1995. we concluded that lack of registration did not
disquallfy a person otherwise qualified from signing the petition.

Michelle E. Moren
Page 3
April 10, 1995

QUESTION ONE

Will the petition, as presented to the County be ”invalid" if signers of the
required affidavits do not have ”personal knowledge" concerning the
genuineness of all signatures submitted'!

OPINION

We answer your question, as we understand it, in the negative.

In the context of the facts supplied, we interpret the question as asking whether the
petition. when submitted. may be rejected solely on the basis of, information and belief on the
part of county officials that each signer of the required affidavits did not personally witness the
affixing of each signature to the petition. While there does exist authority for the proposition
that the required affidavits should be based, at least in part, upon ”personal knowledge," it
does not appear that the legislature has required that the knowledge supporting the affidavits
necessarily must be based upon the affiant’s witnessing the signing in person. Furthermore,
the applicable statutes do not appear to provide any mechanism for invalidation of the petition
merely by attacking the credibility of the at`iiants.

Unlike some other statutes dealing with petitions. Minn. Stat. § 372.01 does not require
an affidavit stating that signatures were affixed in the physical presence of the affiant. _CL
Minn. Stat. §§ llOA.lO (creation of water user district) 122.22. subd. 4 (Petition for
Dissolutioii of School District) §-410.12 (petition for city charter amendment). Ali that is
required is that at least two petitioners assert by affidavit that the petition signatures are
genuine. were affixed within 60 days of the affidavit. and represent legal voters. The
legislature does not specify the requisite basis for the affidavits. nor has it provided any
authority or mechanism within the context of chapter 372 whereby the basis for the assertions

may be evaluated or rejected by county officials

Michelle E. Moren
Page 4
April 10, 1995

lt is true that in many cases, assertions in an affidavit must be based only upon "personal
knowledge". S_e<;, e_.g;, Minn. R. Civ. P. 56.05. However, it is not always necessary that the
"knowledge" necessary to support each assertion contained in an affidavit must be acquired by
direct sense perception. Cf. State v. Mollberg, 246 N.W.2d 463 (1976). (Aftidavit
supporting issuance of a' search warrant need not be based upon personal observation if
magistrate informed of underlying circumstances from which informant’s conclusions are
drawn).

There is also authority for the proposition that, when an affidavit must necessarily be
based on information derived from others or upon affiant’s opinions, it may be made upon
"information and belief." &e, ;g, Callenius v. Blair, 309 N.W..'Zd 415 (Ia. 1981). It seems
clear that, at least the legal voter status of persons signing the petition, is a matter which must,
of necessity, be based upon information acquired from statements or records of others.
Arguably, though, the "genuineness" of the signatures is a matter which can be to a greater
degree, based upon direct observation.4 Such a distinction was articulated in Op. Atty.
Gen. 125 a-19, May 31, 1928. where we concluded that statements as to the genuineness of
the signatures and the time of signing were required to be made upon the "personal
knowledge" of the affiants while the legal voter status could be based upon "information and
belief. " At that time, the statute required that the petition be:

. accompanied by affidavits of not less than two of the signers thereof
stating that, to the knowledge of affiants, the signatures to such petition are
genuine. were subscribed thereto within sixty days preceding the date of such
affidavits. and that affiants are informed and believe that at the time of signing
such petition the petitioners were legal voters of said county,

-1. A person might actually observe a signature being placed on a petition. However, it

would seem that the identity of the signer would still require reliance upon hearsay or
other record inquiry in many cases.

Michelle E. Moren
Page 5
April 10, 1995

That wording was amended to the current language by Minn. Laws 1985, ch. 109, § 3. Thus,
the statute no longer makes an express distinction among the assertions required in the
affidavit. Even if it is conceded that such a distinction may be inferred,5 however, it does not
follow that "knowledge"of the genuineness of a signature may only be obtained by observing
the writing of it. As noted above, the Legislature in a number of other statutes has specifically
required affiants to assert that petitions were signed in their presence. The failure to require
such an assertion here would seem to be an indication that such personal observation is not
absolutely required to support an affidavit that the signatures are "genuine.“

Furthermore, regardless of the factual basis which theoretically may be required to
support the affidavits, there appears no statutory mechanism whereby that factual basis may be
tested as a basis to reject the petition.

The functions of the county auditor iri connection with receiving the petition and
ordering a special county board meeting are purely ministerial. lf the requisite number of
signatures and the affidavits, regular on their face, are presented, it is the duty of the auditor
to make the required order and notice, and move the process to the county board for its
consideration of the petition pursuant to Minn. Stat. §372.03. There appears to be no
authority for the auditor to delve behind the face of the documents to inquire into their basis.
[n Gp. Atty. Gen. 125a-19, May 31. 1928, cited above, we found a petition improper because
the affidavit supporting it lacked any statement that the signatures were genuine. However,

the opinion also went on to state:

The auditor is controlled by the prima facie showing made by the
affidavits accompanying the petition. If these affidavits o_n_ w @:_e_ disclose
compliance with all precedent statutory conditions, you are advised that it is the
ministerial duty of the auditor to receive and file the petition. He is not
authorized to go back of the prima facie showing made by the affidavits

5. As noted iii Op. Atty. Gen 106-c lan. 24` 1995. it is our view that the 1985 amendments

to section 372.01 were not intended to make substantive changes iii the statutory
requirements.

Michelle E. Moren
Page 6
April 10, 1995

(Emphasis added). See also Slingerland v. Norton, 61 N.W.322, 59 Minn. 351 (1894) Op.
Atty. Gen 125, a-19.

lt appears that inquiry into the sufficiency of the petition is expressly delegated to the
county board pursuant to section 372.03. That inquiry is directed exclusively to the issues
pertinent to the petition signatures themselves rather than the affidavits.

For these reasons, it is our view that the petition may not be rejected solely on the basis

of collateral information suggesting that the affiants may not have personally observed each

signature included in the petition.

QUES'I`ION TWO

ls the "offer" by the City of Warroad to provide money, land, roads and
utilities for a courthouse and related buildings if the county seat is moved to
Warroad a "val id offer?“

OPINION

We are not in a position to provide a complete response to this question since the
answer. in our view, may depend in part upon issues which are beyond the scope of our
opinions,6 Your letter suggests that one basis upon which the offer might be questioned is a
claim that it is contrary to legal principles protecting the fairness of the election process. ln
particular, Minn. Stat. § 21lB.13, subd. 1 (1994) provides in part:

A person who willfully, directly or indirectly, advances pays, gives,
promises. or lends any money, food. liquor. clothing, entertainment, or other
thing of monetary value. or who offers, promises. or endeavors to obtain any
money, position. appointment. employment. or other valuable consideration, to
or for a person. in order to induce a voter to refrain from voting, or to vote in a
particular way. at an election. is guilty of a felony.

6. ln accepting your description of the City`s action as an "offer", we do not undertake to
determine the extent to which the city council’s resolution imposes legally binding
obligations upon the city to perform the acts specified if the "offer" is accepted by the
county board, or if the voters do. iri fact vote to relocate the county seat.

Michelle E. Moren
Page 7
April 10, 1995

lt may well be argued that an offer to underwrite an expense which would otherwise fall
to the taxpayers must be considered a promise of money to induce each taxpaying voter to vote
in a particular way, in violation of this section.

While we are aware of no Minnesota case directly on point, and there is a possibility that
such an "offer" could be found to violate section 211B.13, it is our view that the weight of
authority tips against such a determination We find a number of prior opinions of this office
which have held that it is a violation of an earlier version of this section for a candidate for
office to offer to serve without pay, or for reduced pay, if elected. SL, e_.g._, Ops.7 Atty. Gen.
104 a-9, January 29, 1932 which concluded that an offer by a candidate for elective office to
serve at a reduced salary was a violation of a predecessor of this statute, noting:

The result is, as the courts have pointed out, that if such offers were
permitted it would tend to put an office up at auction for sale to the lowest
bidder. A person of means, having some personal and perhaps ulterior motive
for seeking a certain office, might secure his election through such an offer,
defeating a better qualified candidate who. for lack of a sufficient private income,
could not afford to meet the offer. Thus the object of an election, which should
be to choose public servants on their merits, regardless of wealth or other
irrelevant considerations would be frustrated.

See also, Ops. Atty. Gen. 627 a_ May 9, 1922, and lune 12‘ 1922. Accordingly, in Op. Atty.
Gen. 627B-3, January 20. 1920` the office concluded that an offer of a free site or money
toward courthouse construction in a referendum context "might constitute" a violation of the
election bribery laws. Thus, it was determined that the only "safe course" was to advise that
the offer was unlawful.

ln a later opinion, however. we expressly superseded the 1920 decision and concluded
that it was n_ot a violation of the "Corrupt Practices Act“ for persons to make an offer of a gift
of land and money to assist in courthouse construction, contingent upon the outcome of an

election to relocate the county seat of Chippewa County. Op. Atty. Gen. 627-B-3, May 6,

Michelle E. Moren
Page 8
April 10, 1995

1954. While noting a split of authority in other states, we determined that the majority of
cases had concluded that offers of money or property to local governments contingent upon
courthouse relocation did not violate statutes similar to Minnesota’s anti-bribery laws. We

noted that:

The theory back of these decisions appears to be that "the party to be
influenced is the entire county, and that the thing offered is of a public nature
pertaining to the pubic and not to individuals"; that the elements requisite to
constitute a bribery or a corrupt and unlawful influence within the meaning of
bribery and corrupt practices statutes are lacking; and that "a self-governing
people are self-respecting, and that whole communities will not do any act that
reflects upon their honor or integrity."

See also annot. 13 ALR 734. We have not located any additional authorities which suggest
that the weight of authority has shifted since the 1954 opinion was issued. Nor has the
legislature acted directly to alter the conclusion reached there. Furthermore, we think it
relevant that in both the instant case and that addressed in the 1954 opinion, the substance of
the offer is addressed to an issue directly pertinent to the issue to be voted upon. l.i,
potential costs associated with moving the county seat. Consequently, we retain the view that
an offer of the sort described in your letter would not likely be held to violate Minn. Stat.
§ 21113.13 (1994).

lt should be noted that this opinion is limited to the facts presented where the offer in
question is made to a governmental unit and has a direct relationship with the ballot question
itself. Furthermore. it does not apply to elections of a candidate for public office,7 nor to

offers which bear no connection to the ballot question before the voters.

7. § State v. Purdy, 36 Wis.. 213` 224 (1874) where the court noied:

The distinction between the election of public officers. to whom. for the time
being, the exercise of the functions of sovereignty is entrusted, and the mere choice of a
site for a public building, is quite apparent. The former involves, or may involves th_e
integrity of the government and the preservation of the principles upon which it is
founded. while the latter is only a matter of public convenience or pecuniary interest,
involving no fundamental principle \vhatever."

Michelle E. Moren
Page 9
April 10, 1995

Another potential area of concern is the question of the authority of the City of Warroad
to provide funds or property for the construction of a county courthouse. lt is well established
that statutory cities possess only those powers expressly granted by statute or those necessarily
implied therefrom. As a general matter, cities lack the power to donate to private entities or
other governmental units absent specific statutory autliority.8 We have located no statute
which expressly authorizes a statutory city to participate in the construction of a county
courthouse pg _sQ. We are aware of Minn. Stat. §§ 374.25 (1994) e_t M, which provides
authority for certain cities and counties to construct and maintain a joint courthouse and city
hall according to the terms of those sections. However, the materials submitted do not suggest
that such a dual purpose structure is contemplated here.

Minn. Stat. §465.035, provides general authority for a statutory city to convey lands
belonging to the city to a county, for public use, for nominal consideration or without
consideration If the land in question belongs to the city, and is not needed for city purposes,
this section would appear to provide authority for the city to convey it to the county for
courthouse purposes. However, absent other statutory authority, the city would arguably lack
authority to acquire land solely for the purpose of transfer under that section _C_f_. Op. Atty.
Gen. 469A-12, February 24. 1964 wherein we concluded that a village could not acquire
property for the purpose of transfer pursuant to former Minn. Stat. § 465.026 (Lc_: now section
Minn. Stat. §469.185 (1994)).

We are not aware of specific statutory authority relied upon for the city to donate funds
to the county for purposes of erecting a courthouse. lt has been suggested that such authority

might be derived from Minn. Stat. §471.85 which permits cities to transfer "personal

8. § Op.s Atty. Gen. 59a-3. lanuary 15. 1959 (County Historical Society); 469-A-_12,
February 24. 1964 (private nursing home); 476 B-2‘ lanuary 26, 1942 (federal civil

defense agency), December 12. 1946 (study to promote new county); February 23, 1951
(conservation district).

Michelle E. Moren
Page 10
April 10, 1995

property" without consideration to another public corporation for public use. In Op. Atty.
Gen. 904, June 27, 1963, however, concluded that "personal property" as used in that section
did not include money or funds of the governmental unit proposing to make a transfer.

Absent other statutory authority which has not been called to our attention it would not
appear that the City of Warroad has clear authority to provide funds for courthouse
construction The fact that funds for the courthouse were acquired by the city as a gift from a
private source would not necessarily provide authority, otherwise lacking, for the city to aid in
courthouse construction § Op. Atty. Gen. 469-A-12, February 24, 1964 and Minn. Stat.
§465.036 (1994) which expressly authorizes cities and counties to accept gifts to aid in
building equipping or maintaining hospitals whether maintained by a city, county or a
combination thereof.

QUESTION THREE

lf the offer is valid, can the County Commission accept this type of gift?

OP[NION
As a general proposition it has been held that a county may accept a gift of money or
property to be used in furtherance of lawful county purposes including construction of a
courthouse or other necessary buildings. As determined in Op. Atty. Gen. 627-B-3, May 6.
1954, a county board, in the exercise of sound discretion may accept an offer of a free site for

a courthouse and funds to assist in construction pursuant to Minn. Stat. §465.03, which

provides:

Any city, county, school district or town may accept a grant or devise of
real or personal property and maintain such property for the benefit of its citizens
in accordance with the terms prescribed by the donor. Nothing herein shall
authorize such acceptance or use for religious or sectarian purposes. Every such
acceptance shall be by resolution of the governing body adopted by a two-thirds
majority of its members. expressing such terms in full.

Michelle E. Moren
Page 11
April 10, 1995

You have raised a particular question over the fact that the offered assistance may not be
sufficient to cover all of the county’s costs of locating the courthouse and other facilities in
Warroad, should it be chosen as the new county seat. We do not believe that such a concern
would create legal impediment to the county’s ultimate acceptance of the offer. While the
offer of assistance is conditioned upon the relocation of the county seat to Warroad, we would
not style the proposed transaction as an undertaking by the county board to move the county
seat to Warroad i_n exchange f&r_ the offered assistance. The decision whether to locate the
county seat is an issue to be decided by the voters. lf the Board determines that sufficient
valid petition signatures have been submitted, an election will be held to determine the location
of the county seat. lf the voters determine to relocate the county seat in Warroad, that move
will entail certain expenses regardless of whether outside assistance is obtained. While it may
be that the offered assistance would not be sufficient to pay all costs of relocation9 it seems
clear that, absent such assistance, the county would be obligated to meet ah of the costs from
its own resources.

The fact that the offer is contingent upon relocation of the county seat does not in itself
render it unacceptable. As noted in Op. Atty. Gen. 627-B-3, May 6, 1954:

"[such a gift] l assume would be on condition that property so accepted
will be returned to the offerers if the voters of the county shall not petition as by

law required and legally vote at a duly called election in favor of removal of the
count seat. . . ."

lt would appear clearly that an offer of land and funds to aid in construction of county seat

facilities in Warroad would be essentially meaningless if the county seat were not to be located

9. We understand that there may be some dispute concerning this issue. However, we do not
undertake in opinions to resolve factual issues. See Op. Atty. Gen 629A, May 9, 1975.

Michelle E. Moren
Page 12
April 10, 1995

there. lndeed there may be no necessity for the Board to consider the proposal unless the
relocation is directed by the voters.

Also of concern may be the provision in the Warroad resolution that, if the county seat is
later removed from Warroad “within twenty-five years from the date of the gift, then the
ownership of the land, courthouse and related improvements shall rev_ert to the City of
Warroad, . ." (Emphasis added).

Pursuant to Minn. Stat. § 372.09 (1994), citizens of the county are permitted to petition
for another election to move the county seat after five years have passed following such an
election Thus, it is theoretically possible that the county seat. if located in Warroad, might be
relocated elsewhere within the twenty-five year period specified in the resolution

lnasmuch as no particular formal contract or conveyance is presented, we are not in a
position to speculate concerning the form such a transaction might ultimately take. We might
say, however, that as a general proposition prior authorities have recognized the power of
units of local government to hold property subject to reversionary interests in the grantor.
E, nga Op. Atty. Gen. 469a-15, November 20, 1969.

Thus, to the extent that the reversion provision relates to continued use of the property
granted by the city for the purposes for which it was given it would likely be upheld.

The statement that the land, courthouse and improvements "revert" to the city suggests
that title to those properties will be in the city prior to transfer to the county. However. to the
extent that the condition were to constitute an obligation by the county to transfer to the city,
county property not acquired as part of the original grant from the city, the county"s authority
to undertake such obligation is somewhat less clear. §§ Op. Atty. Gen. 469 a-12,
December 15. 1950 (village may not accept property subject to obligation to pay off
indebtedness). 6221-7_ April 28. 1960 (authority to convey land for nominal consideration

premised upon no present or anticipated need by grantor). Thus. the county board`s authority

Michelle E. Moren
Page 13
April 10, 1995

to accept the conditions on the "gift" are rather dependent upon the form of the particular
transactions
Notwithstanding authority to accept, however, it is clear that the county board has the

authority to decline the offer if in its view the consequences of acceptance or the conditions

thereon are not in the public interest.

Best regards,

HUBERT H. HUMPHREY III
Attomey General

' KENNETH ii RTASCHKE, JR. '
Assistant Attomey General

KER:sr. fe8