Town Powers The Nature and Division of Power in Minnesota Towns 05-10-2001

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For more information on governmental, municipal and township issues, contact Tim A. Strom, tas@hanftlaw.com or 218-722-4766.

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Introduction
The Moral of Jafar
"The Power! The Phenomenal Cosmic Power!"

In Walt Disney's Aladdin, my four-year-old's favorite movie, the climax comes when Aladdin tricks the evil vizier, Jafar, into ordering the good genie to turn him (Jafar) into an evil genie. As soon as the good genie grants Jafar's wish, Jafar changes into a muscular, spectral giant and, suddenly aware of his genie-hood, bellows, "The power! The phenomenal cosmic power!"

Only then is Aladdin's trick revealed. Jafar failed to realize that as a genie he must stay in his lamp until his master bids him emerge. "Did you forget something Jafar?" Aladdin sneers. "You're a genie, all right--and everything that goes with it!"

From nowhere, two great manacles appear and clamp themselves on Jafar's bulging forearms with a hollow chung sound, like a cell door closing. The villain screams as he is sucked into the tiny opening of a very ordinary lamp, and entombed inside.

Suddenly, everything is at peace. Holding the small lamp containing the now-helpless Jafar, Aladdin quips, "Phenomenal cosmic powers--teeny-weeny living space."

The good genie tosses the lamp--still encasing Jafar--far across the desert in the hope that it will never be found. Aladdin nobly uses his third wish to set the good genie free, and marries the beautiful Princess Jasmine. The good genie, free at last, decides to travel the world beginning--but of course--with a trip to Disneyland.

It is hazardous (no, let's face it, it is downright silly) to draw moral lessons from children's cartoons but, when the kids watch something daily for several weeks in a row, it's hard not to ruminate on potential deeper meanings. I suspect other parents have sinned as much.

The moral of Jafar is that with power comes responsibility. With power comes obligation. With power comes restrictions and limitations. Most of us learned that lesson during ill-spent episodes of our youth when, free for a time to do pretty much what we chose, we learned that hangovers follow drinking, bad grades and poverty accompany sloth, and remorse often lurks not too far behind ill-considered affairs of the heart.

Worldly observations are lost on four-year-olds, and I keep my mouth shut. She's more concerned with whether the good genie really visited Disneyland, whether he flew there in a jet, and why good genies are blue and evil ones red.

Towns have powers and responsibilities. Although hardly phenomenal cosmic powers, town powers are considerable and nothing to sneeze at.

In this paper, I want to discuss the essential nature of town powers. Where do the powers come from? (A hint--not from genies). What's their source? Who exercises them? Can they be taken away? How do we identify and locate them? Perhaps most importantly, when does the board have the power, when do the electors have the power, and when do both have some but not all of the power? These are fundamental questions that, in my experience, are sometimes overlooked. There sometimes tends to be an idea that, "Hey, we're a town board, we're government, we can do pretty much what we want." I'm sorry to say it's not that easy.

We can embark on this journey like a pack of care-free adolescents. Little in what follows deals with responsibilities, limitations, or restrictions although I must add, like a nagging parent, that you should bear in mind that many of the powers sketched below are accompanied with limitations and so forth. It simply isn't our purpose here to dwell on them, and they are usually not discussed.

Sources of Town Powers
Town Power in General

In most forms of representative democracy the electors have the power of voting for someone to represent them, be it a mayor, councilor, senator, president, or other scoundrel. Thereafter, the electors sit back and watch the carnival until the next election.

It's similar in towns, but different as well. Town electors can vote in (or out) one of three supervisors every year. That means that in any given two-year period they can completely rout an existing board.

Moreover, in what is perhaps the genius (and sometimes the bane) of town government, electors have the ability in any given year to cut off or greatly reduce the funds for the next year. They can use this power to effectively cripple a board that they think has gotten out of hand. They can use it to cut off funds for programs with which they disagree and, frequently, to fund programs they want to see implemented. At the annual meeting they not only establish funding but, on some subjects, can determine and shape the town's course for the coming year.

A town, in a legal sense, is not just the board and not just the electors--it is both the board and the electors.

Before discussing the powers of each, we need to consider powers and aspects of power that apply to both of them.

The Need for Statutory Power, Express or Implied

Towns are creatures of the Minnesota Legislature. A town only has those powers given to it by the legislature.

The Minnesota Constitution gives our state legislature the power to pass laws establishing the "creation, organization, administration, consolidation, division, and dissolution" of towns, as well as defining the functions of towns and the qualifications and means of electing town officials.¹ Under the State Constitution, towns are political subdivisions of the state, and the legislature defines their powers and limitations.²

Last summer, a misguided state legislator proposed abolishing town government. His proposal was met with little enthusiasm (had it not, you'd probably be fishing now rather than reading this). I recall a very eloquent defense of town government in the editorial pages, written by a town supervisor from northern St. Louis County. This supervisor ably set out most of the reasons why we should and must have town government. Unfortunately, he concluded his fine letter with a clinker, saying that it would be unconstitutional to eliminate towns. Wrong. The legislature, should it chose, has every right to abolish towns.

The source of all town power is the legislature. Unless the legislature has conferred power to act, a town has no power.

As a general rule, a town only has power to act within its borders.³ The exception to that general rule--you guessed it--is that a town has power outside its borders if the legislature says it does.

There are a number of statutes scattered through the statute books that give towns limited extraterritorial powers. For example, the electors at the annual meeting can direct that a certain amount of the road tax be spent on the roads of an adjoining town.⁴ The road authority of any town (which is almost invariably the board) can spend money to improve or maintain roads, bridges, or ferries outside the town boundaries if the road, bridge, or ferry leads into the town.⁵ A useful statute regarding extraterritorial powers is the Joint Powers Act--essentially, it allows two (or more) units of government to agree to exercise their powers in the other's territory on matters of mutual concern.⁶

The source of legislative power, not surprisingly, is usually a statute. But that's not invariably true, at least in a strict sense. A statute can give a town express power to do something; it can also give the town implicit power to do something.

For instance, there's a law that allows town boards to regulate games of "skill and amusement."⁷ That's an example of explicit or express power. The statute specifically gives the board power to do something--regulate games of skill and amusement. Nothing tricky about that.

Sometimes, however, a statute expressly gives a town the power to achieve an end, but does not expressly give it the means to achieve that end. In that situation, the courts have recognized an implied power to take necessary steps to achieve permissible goals. Courts have adopted the rule that towns have those powers (1) expressly given by statutes or (2) necessary to exercise expressly given statutory powers.⁸

Here's an example of implicit powers, from an old case. A town board bought a safe, and someone (presumably the town cheapskate) claimed that the board had no power to do that. The cheapskate was absolutely correct in one sense--there was no statute saying "A town board can buy a safe." But there were statutes saying that towns could (and often had to) keep important documents like maps, orders, deeds, minutes, and so forth. That meant the town had express statutory power to keep important papers. If the town had express power to keep important papers, it had to have implied power to take any reasonable steps to keep and protect those papers--like, uhm, buying a safe. As a result, the town had the power to buy a safe, even without a statute expressly saying it could do so.⁹

Similarly, even though the statutes did not expressly say that town boards could repair and rebuild roads, the general statutory grant of responsibility for the care and supervision of town roads implicitly contained the more specific power to repair and rebuild.¹⁰ As a final, extremely trivial example of express and implied powers, consider this--all of those town boards that might still be regulating dance halls will be thrilled to know that, even though the dance hall statute does not expressly provide a penalty for violating town dance hall ordinances, the power to include a penalty is implicitly granted.¹¹

This implicit power business can be used to your advantage if you can't find a statute that specifically empowers you to do something. Your search for a source of power is really two steps--first, is there a statute that flat-out says you can do it? Second, if not, is there a statute that fairly implies that you do have that power? A little creativity might go a long way toward finding an implied source of power. Having said that, the general rule has to be emphasized--towns cannot act unless there is a statute that expressly or implicitly gives power to act. You can't simply do whatever you want.

Types of Towns
Rural, Urban, and "Stealth" Towns

A town is not just the electors, and a town is not just the board. It is both. Both have certain powers. The balance of power between the electors and the board depends to a great degree on what type of town it is. By that, I don't mean whether it is a quiet town, a clean town, or a one-horse town. I mean, from the legal point of view, what kind of town is it?

There are essentially three types of Minnesota towns, some say two-and-a-half.

The "Rural" Town

First, and most common, there is what is known as a "rural" town. The "rural" has very little to do with how many farms, stoplights, or cows it has--it's simply a short-hand term used to designate what is, from a legal standpoint, the oldest and simplest type of Minnesota town. A "rural" town is one that derives its powers principally from Chapters 365, 366, and 367 of the Minnesota statutes.

So what? Well, generally speaking, "rural" towns have the fewest powers of the three principal types of Minnesota towns. More important, in "rural" towns the electors have greater powers than they have in the other two types of towns, and the boards have weaker powers than they have in the other two types of towns. The electors' powers, in relation to the board's powers, are at their strongest in "rural" towns. By the same token, the boards' powers, in relation to the electors' powers, are at their weakest in "rural" towns.

There are a great many powers available to "rural" town boards only if the electors authorize the board to exercise those powers or otherwise grant those powers to the board. Boards of "rural" towns often lack a particular power unless the electors "green light" it. In addition, there are certain powers that can be "green lighted" at the annual meeting, and not at any other time.

For example, suppose the board of a "rural" town decides in the middle of July that it is time to license and regulate dogs and cats in the township. Can they do it? As to the residential platted areas of the town, they can--Minn. Stat. § 366.01, subd. 2, says that the board may regulate the presence and keeping of domestic animal pets in any platted residential area of the town. But what about out in the countryside? The only statute in that regard for a "rural" town appears to be Minn. Stat. § 365.10, subd. 13, which says that the electors at their annual meeting may let the board pass an ordinance licensing and regulating the presence of dogs and cats. From a strict legal standpoint, our hypothetical board probably has to wait until the following March so that the electors can "green light" the dog and cat ordinance in the countryside. The hypothetical board doesn't have power to act until the electors confer that power at an annual meeting.

A second example. Suppose the board of a "rural" town has a pressing need for buying or building a town hall or other building. Can the board just go ahead and do it? Probably not--Minn. Stat. § 365.10, subd. 6, says that the electors at their annual meeting may let the board buy or build a town hall or other building for the use of the town, and must decide the amount to be raised for that purpose. I'm not aware of any other statute that would give a "rural" town board express or implied power to build or buy a building--the "rural" board must wait until the annual meeting and have the electors "green light" it.

The powers of electors in "rural" towns, the fact that many powers can only be exercised after approval by the electors, and the fact that some of those powers can only be approved at the annual meeting obviously can cause problems for a board trying to deal with any number of pressing situations. Those problems, to a large extent, probably led to the passage of Chapter 368, which allows some towns to become "urban" towns.

The "Urban" Town

The term "urban" town, like the term "rural" town, has little to do with the number of houses, roads, streets or farms in the town.¹² It is a catch-phrase best used to denote the type of legal power a town enjoys. (It also should not be confused with the mythical "urbane" town, rumored to be entirely populated by stunning cosmopolitan debutantes and dashing Frenchmen in sportscars--some claim that this legendary township exists not far from Angora and has been carefully hidden from the MAT for decades).

An "urban" town is a town that has qualified for and chosen to exercise the powers granted by Chapter 368.

Again, so what? Well, in an "urban" town, the board itself can exercise many of the powers that a "rural" town can only exercise after electors "green light" it. As a result, the electors' powers relative to the board's powers are much less in an "urban" town than in a "rural" town; conversely, board powers are greater in an "urban" than in a "rural" town.

For instance, if an "urban" town board decides that it wants to regulate and license dogs and cats in the countryside, does it have to wait for the annual meeting so the electors can grant that power? No--under Minn. Stat. § 368.01, subd. 13, an "urban" town board has that power already. Does an "urban" town board have to get elector approval to buy or build a town building? No--under Minn. Stat. § 368.01, subd. 2, the board has power to do that without consulting the electors.

A "rural" town that morphs itself into an "urban" town gets to keep all of its "rural" town powers. It also gains a few additional powers that no "rural" town can exercise (and assumes some statutory obligations that no "rural" town has to worry about).

But that isn't the key difference between "rural" and "urban" towns. A "rural" town can do pretty much the same things that an "urban" town can do, with a few exceptions. The major difference is in how those powers are carried out--the balance of power between the electors and the board. Many "rural" town powers are available to the board only if the electors make them available. Most powers in an "urban" town are available to the board whether the electors approve or not. This gives the electors less control over what an "urban" town board can do, but allows the board to act more freely and quickly when problems arise.

The "Stealth" Town

In addition to "rural" and "urban" towns, there is a third major species in the legal taxonomy. It is a rare enough specimen that I have never seen a generic name for it. I suppose it could be called by the rather distinguished name of "Special Act Town," but I prefer the simpler, less precise, and far more sarcastic appellation of "stealth" town.

Why a "stealth" town? Because these towns' full legal powers are essentially hidden from view. "Rural" and "urban" towns have their powers written down in the statute books, and anyone with the inclination and enough free time can go to a law library and look the powers up. But "stealth" towns have their powers (or a good share of them) written down in what are known as "special acts." These special acts are not in the statute books. You can go to the library and read every word on every page in every volume of all 15 volumes of the 1994 Minnesota Statutes and not find a copy of these special acts.

That's not to say there's anything improper, wrong, or sneaky about "stealth" towns. There are thousands of special acts out there on thousands of subjects--there are so many special acts on so many subjects that the legislature publishes a 183-page list of just the names of all of the special acts. Anyone with no social life can use that list to find out if a special act exists for any given town, and can then call the legislature to get a copy of the special act. But the point is that some towns have powers that you won't find no matter how carefully you read the statute books, and those powers are "hidden" away in special acts. Thus, "stealth" towns.

Few categorical statements can be made about "stealth" towns, because to say anything intelligent about them you almost have to obtain and read a copy of each individual special act. However, as a general common sense observation, these towns did not go to the trouble of having a special act passed to give them less power than they enjoyed as a "rural" (or even as an "urban" town). They got the special act passed to give them more or additional powers.

All "stealth" towns have to also be either "rural" or "urban" towns to boot. For instance, the Town of Duluth is a "rural" town that can exercise any "rural" town powers. But it is more importantly a "stealth" town because a 1971 special act granted it all of the powers enjoyed by villages at that time. The "stealth" powers are broader than the "rural" powers, are more easily defined and located, and can often be exercised without the need to secure elector approval. So, while the Town strictly speaking is a "rural" town, it operates best and most easily when exercising its "stealth" powers.

Those, then, are the three main types of towns--"rural," "urban," and "stealth." When considering the powers of towns in general--and the powers of electors and boards in particular--the distinctions between those three types of towns have to be kept in mind. There are pronounced distinctions in the division of power vis-à-vis the board and the electors depending upon the type of town in question.

With that in mind, we can turn to an examination of the powers of electors as opposed to the powers of boards. What, in general, are the powers of the electors? What, in general, are the powers of boards?

Electors' Powers

Electors' powers, being only a part of the total powers of a town, must derive (expressly or implicitly) from a statute. The electors' powers can be broken down into four areas or groups:

1. The power of the ballot box. Every year, at the annual meeting, the voters elect one of their supervisors.

2. Direct power. There are a handful of statutes that allow a town to do something only if the electors do it.

3. The "power" to authorize. Many statutes allow a board to do something only if the electors grant that power to the board.

4. The power of the purse-string. The electors decide how much money will be raised in a given year for town purposes.

There really is no good reason to dwell on the power of the ballot box. It's largely self-explanatory. The other three powers merit some discussion.

Direct Power

A lawyerly (some might say slippery) distinction needs to be made here.

There is a definitional distinction to be made. What we are discussing here are things that the electors can do by themselves without any involvement by the board. These are electors' powers, pure and simple, board be damned. In the next section, we will discuss something similar, but different--those things that the board can do only if the electors direct the board to do it, or grant the board the power to act.

A few statutes provide that a town can only do something if the electors do it. Most of these powers aren't used very often. Some of them are relatively unimportant, but others go to fundamental questions and highly important decisions.

For example, if a town wants to enter any type of installment contract for something that costs more than 0.24177 percent of the town's market value (say, an Apache helicopter), and if a petition by 10% of the voters is filed, there has to be a special election before it can be done.¹³ If a town wants to levy and assess road drainage taxes, only the electors can do it (through a petition process and special election).¹⁴ The electors can force the board to use road and bridge funds to maintain a cartway.¹⁵ Electors can decide to create animal pounds, and the board apparently must follow through if the decision is made.¹⁶ Electors initiate any movement to separate a town from a statutory city within the town, and the issue is determined by the electors through a special election.¹⁷ Electors can, at the annual meeting, make orders and bylaws restraining domestic animals running at large and make orders and bylaws for impounding the animals and fixing penalties for violations.¹⁸ They can petition the auditor to audit the town.¹⁹ The site of the town hall can't be changed unless the electors approve it by a 2/3rds majority.²⁰ A majority of the voters can file a petition for the dissolution of the town and, if so, the town is dissolved by the county board if the electors vote to dissolve.²¹

There may well be other statutes that let electors do things by themselves without the board, but these appear to be most of them. Again, keep the distinction in mind--there are a huge number of statutes that say that the electors can authorize the board to do something or grant a certain power to the board. These statutes, instead, appear to give the electors powers that they arguably exercise themselves, without the involvement of the board.

What if the board wants to do something that is reserved by statute to the electors? For instance, what if the board wants to change the site of the town hall without putting it to a vote of the electors?

If a board wants to do something that is reserved by statute to the electors, the board itself is powerless to do it. "When a town board assumes to perform those duties which are reserved to the electors," our court has written, "its acts are at least voidable unless ratified by the electors."²² In other words, a town board acts without power if it attempts to do something reserved to the electors, and the board's action is without legal effect unless the electors, under proper circumstances, ratify or approve of it.

The "Power" to Authorize

While a handful of rare and eclectic statutes give electors power both to initiate and decide, many statutes say that boards can exercise a particular power only if the electors approve or authorize it. As noted, this is less true with boards of "urban" towns because Chapter 368 gives them many powers that "rural" town boards can exercise only with voter approval--but even "urban" town boards need voter authorization in some circumstances.

It's probably not practical to list all of the powers that "rural" boards can exercise only after the electors "green light" it. Some of the more pertinent examples follow.

Electors can authorize the board to obtain and operate a town cemetery.²³ At the annual meeting, they can authorize the board to contract with nonprofit organizations for health, social, and recreational services subject to a limit of $5000 per year.²⁴ They can vote money to build and maintain docks and breakwaters.²⁵ At the annual meeting, they can vote money to help build community halls.²⁶ They can authorize the provision of police and fire protection services and the amount to be spent for it.²⁷ Money can be raised, should the electors agree, at the annual meeting for the commemoration of a historically significant event in the town.²⁸ They can authorize the board to buy land for a public park or forest, and set the amount to be paid for its acquisition and maintenance.²⁹ In limited situations, they can authorize the board to impose rent controls.³⁰ They can give the board power to adopt zoning and related regulations.³¹ They also have a number of "authorization" powers regarding roads³², and some other authorization powers that have already been discussed in regard to controlling animals, building town buildings, and spending money on certain roads outside the town's borders.

What if a board needs elector approval before acting, but doesn't get it? The general rule is that the board's action is void and has no legal effect.³³ Under proper circumstances, it may be that the electors could "save" an unauthorized board action by approving it after the fact and consequently ratifying it.³⁴

I have been unable to find any Minnesota case that says what happens if the voters authorize the board to do something but the board refuses to do it. The position of the lawyers for the Minnesota Association of Townships is that, in that situation, the board can legally refuse to do what was authorized. I agree. The board may be committing political suicide by not exercising a power authorized by the voters, but I find nothing that says a board once authorized must proceed. Moreover, there surely could be times when, due to changed circumstances, the board's use of an authorized power would be harmful or foolish.

As a result, in my view, the electors have no legal recourse against the board if they authorize the board to do something and the board refuses to do it. The electors' recourse would appear to be limited to the ballot box.

The Power of the Purse-Strings

A huge power the electors have is the power to decide how much money the town will raise in a given year. The electors have power to vote as much money as they consider expedient and proper for the good of the town and the payment of expenses.³⁵

"No town can contract a debt for any one year," our court has written, "for a specified purpose, in any larger sum than the amount of taxes assessed for such year for such purpose."³⁶ As a general rule, all money needed for public purposes must be provided for by the electors at the annual town meeting and the creation of any indebtedness in excess of the amount so raised is prohibited.³⁷

The statutes provide a couple exceptions to this general rule. In the case of an emergency, the board can levy a tax for road and bridge purposes and issue town orders to pay for the work.³⁸ Also, while the statutes say that a town can't spend more in a year than the taxes levied, it can do so if the electors agree by a majority vote.³⁹

So what happens if a board spends more than was approved?

Our appellate courts have never directly answered the question, but have strongly suggested that any contract in excess of the available money might be unenforceable. In one case, although the court decided that there was actually no evidence to show that the board spent more than was raised, it implied that a contract made in excess of that amount would be unenforceable to the amount of the excess.⁴⁰ In another, while again deciding that there was no evidence to show an "overdraft," the court said that town boards could build and repair roads only "to the extent that the town has funds available for that purpose," again suggesting that the contract could not be enforced for the excess. ⁴¹

A statute suggests a similar result, with even scarier consequences for supervisors. Minn. Stat. § 275.27 says that, unless there is a "saving" statute to the contrary, it is unlawful for a town to contract any debt or incur any liability which, for payment, would require a levy higher than the maximum prescribed by law, and that any such contract is void to the extent of the excess. It goes on to say that the town officers who made the contract will be personally liable for the excess unless they recorded a dissent at the time it was made.

If a town board cannot spend more in a given year than is authorized by the electors at the annual meeting, can the board "raid" one fund to overspend in a different area--for instance, could a board dip into the road and bridge fund to pay for police or fire protection? A statute gives the board limited power to do this. It says that a board, by unanimous vote, may transfer a surplus beyond the needs of the current year in a town fund to any other town fund to supply a deficiency.⁴² That falls short of a blank check to transfer money from one fund to another--there must be a surplus (or, presumably, an expected surplus) in one fund and a deficiency (or, presumably, an expected deficiency) in another before the board can draw upon one fund to pay for an expense in a different area.

A final exception would be that, under certain circumstances, a town board can issue certificates of indebtedness or municipal bonds for certain purposes.⁴³ I will--either with great caution or extreme cowardice--take a pass on expressing any opinion regarding certificates of indebtedness or bonds. Bond law is very much a specialty, best left to dull and scary lawyers with CPA degrees.

The End of the Electors' Power

Those are the principal powers of the electorate. There is the ultimate power of the ballot box. There is the strong power of setting the amount the town can spend in a year. There are a few things the town can only do if the electors initiate and decide to do it. There are other things the board (particularly the board of a "rural" town) cannot do unless it gets the electors' authority. But, beyond that, power belongs to the board, as we will discuss in the third section.

The most direct discussion of the electors' powers occurred in an old case called Great Northern Bridge Co. v. Town of Finlayson, 133 Minn. 270, 158 N.W. 392, 393 (1916), where the court wrote:

The town in respect to all of its interests usually speaks through the electors thereof at the annual meeting . . . [but] the authority of the electors ends when the town meeting adjourns. From thence on the affairs of the town are in control of the town board ....

We turn then to the second part of the equation--the powers of the board of supervisors. Some of the board's powers and limitations (particularly with regard to spending the amount the voters elected to raise) have been discussed above, and we won't dwell on them much in the following section.

Powers of the Board
General Powers

Boards have limited powers--they have those powers that are expressly conferred by statutes and those implied powers that are necessary to carry out the express powers. In order to validly act, a board must have a statute that authorizes its action.

The electors decide who they want on the board, usually electing one of the board's three members every year to a three year term.⁴⁴ The board is the active agent of the town, and the town is liable for the board's action, unless the action is illegal or unauthorized.⁴⁵ The board's actions, within the general scope of its powers, are the actions of the town.⁴⁶

As a general principle, the board can only act at a meeting of the board and by a majority of its members--a single board member cannot usually bind the board or the town to any action.⁴⁷ There are at least two exceptions to this. First, a single board member's actions might later be approved and ratified by the board as a whole, depending on the particular circumstances of the case.⁴⁸ Second, once a contract or project is authorized by the board, it is usually appropriate for the board to designate one member to oversee, monitor, or attend to it.⁴⁹

A third exception, in my view, would be that the board could designate one member to commit the town to something if certain conditions were fulfilled. For instance, I believe it would be perfectly appropriate for Lars and Hjelme to say, "Betty, you can sign that contract on behalf of both of us if (1) the contractor agrees to charge $2500 or less, (2) he has all his insurance and bonds in effect, and (3) he agrees not to play rap music while grading."

The Power of Discretion

Between annual meetings, as a general rule, the board has discretion to do what it sees as best for the public good and the town's benefit--so long as it has express or implied authority to do what it proposes doing the board, not the electors, decides what course the town will follow.⁵⁰ The town's affairs are in its hands. Obviously, if the electors feel that the board abused its discretion, they can change the board through the ballot box or decrease (or cut off) funds at the annual meeting.

The board is not a figurehead for the electors.⁵¹ The board's power, simply put, is to exercise all town powers not reserved to the electors or committed by statute to other officials.⁵² It is up to the board, between annual meetings, to run the town government.⁵³

This power is the power of discretion or judgment. The board is essentially entrusted with the management of the town between annual elections, and called upon to exercise its discretion and judgment for what it sees as the good of the town. For that reason, the board itself must make all discretionary decisions not committed by statute to the electors--it may not delegate its decision-making powers to anyone else, although it may delegate ministerial or purely administrative matters.⁵⁴

Spending Decisions

The board's discretion, its exercise of judgment in running the town between annual meetings, applies (subject as always to statutory restrictions) to spending the money the electors raised.

As a general rule, the board does not need a vote of the electors to spend money raised for town purposes.⁵⁵ It cannot spend more than the amount raised for a given year or spend money from one fund on projects clearly outside the realm of that fund, although it may use a surplus from one fund to attend to a deficiency in another.⁵⁶

A board's power to spend money for town purposes was firmly addressed by the Minnesota Supreme Court in Romsdahl v. Town of Long Lake, 175 Minn. 34, 220 N.W. 166 (1928). A lower court judge committed the cardinal sin of getting too big for his britches. He decided that he had the power to tell a town board how to spend its road and bridge funds. He wanted the board to spend funds immediately on one particular project, and ordered the board to do so. The town appealed and the Minnesota Supreme Court dressed down the trial court judge:

The money which was appropriated by the electors of the town at their annual meeting . . . was not appropriated for this particular project. In fact, it was all voted for general roads and bridges of the town, some to be used in grading, some for culverts or bridges, some for repair of such, some for graveling, etc. Who is to determine how it is to be used? On which particular road? On which particular place thereon? Where? When? For what? The town board has the general care and supervision of the town roads . . . . It has the right and duty to determine all these questions having in mind what is for the best interest of the public and the community. To perform this duty it is called upon to determine, consider, and decide elements and various things in order to arrive at what, in its judgment, seems best and appropriate under the circumstances. Such duties in their very nature are discretionary . . . . The extent, nature, and relative importance of this improvement with other improvements, repairs, and maintenance which may be deemed to be necessary throughout the town are matters concerning which, in general, the discretion of the supervisors and not of the courts must be exercised.⁵⁷

There is no reason to limit the logic in Romsdahl to decisions regarding roads. The board, as agent of the town, is responsible for the government of the town between annual meetings and has the duty, within the limits of its budget and statutory powers, to exercise its best judgment to spend what it thinks proper for the town. The electors, at the annual meeting, can put on the brakes if they disagree by voting out a supervisor and by adjusting funding levels.

Control of Meetings

Town meetings--whether board meetings, special meetings, or annual meetings--are usually sedate enough. But there are other times when you are either glad that your peace officer is present or you wish to heck you had a peace officer. Whether it be the local Posse Comitatus, the new residents from California with their "get away from it all" attitudes, or just the resident town pain in the neck, meetings can take a swerve toward chaos now and again. If the electors and board are at odds, electors might interrupt board meetings with motions from the floor and other mischief. Who has the power to control meetings?

It depends, to a large extent, on what kind of meeting it is.

The electors are supreme in the matter of taxation, and they speak for the town at the annual meeting.⁵⁸ The statutes specify no clear role for the board at the annual meeting, beyond some reporting and deciding what to pay the moderator (who is selected by the electors).⁵⁹ As a common practice in most towns, board members suggest a budget and answer questions about town affairs at annual meetings but, from a review of the statutes, it appears that the board members attend annual meetings nearly as much in their capacity as electors as in their capacity as board members. In short, by and large, the electors are in control of the annual meeting.

At regular meetings, however, the board is in control. It is a meeting of the board, not of the electors--it is a board meeting rather than a town meeting. While under the Open Meeting Law the public has a right to attend, there appears to be no provision requiring public participation.⁶⁰ Obviously, as a practical matter--both for political reasons and for a more informed decision--the public should be given an opportunity to be heard. But the procedure, time limits, or rules regarding public participation appear to be wholly up to the board, which can control (subject to statutory restrictions like the Open Meeting Law) its own meetings.

A special meeting is something of a mix. Many special meetings are called so that a board can get the electors' authority to exercise a given power, and it would be odd (probably disastrous) to not allow electors to have their say at such a meeting. Other special meetings are called to inform the electors and gather their input on a particular issue--again, there would be little point in not allowing the electors to speak or participate at such a meeting. These practical concerns to one side, it would again be up to the board to determine the rules or procedures to be followed in a special meeting, such as the length of time allotted to each speaker, decorum, and the order of speakers.

Some special meetings are clearly meetings of the board, and the board should retain control. Other meetings--for example the special election to purchase a highly expensive item under an installment contract--appear to be more akin to the annual meetings and, at least arguably, the electors should be in control.

Conclusion

Township law is difficult law. When considering the power of a town you first have to know what kind of town it is--"rural," "urban," or "stealth." You then have to check the laws accordingly. Most powers of "rural" towns will be in Chapters 365-67. "Urban" towns have those same powers, but have some additional powers in Chapter 368 and oftentimes can exercise powers without elector approval. "Stealth" towns may have the powers of "rural" and/or "urban" towns, but also have special powers to boot--you will need to check the given special law.

But that does not necessarily end the search for powers. If it is a power that concerns a road, you may have to check Chapters 160-168 on Roads, and Chapter 164 on Town Roads in particular. Laws regarding towns and lawsuits are in Chapter 466, general governmental powers and limitations (the Open Meeting Law, the Public Contracting Act, Conflicts of Interest, and so on) are in Chapter 471. Financial and bonding laws for towns are scattered through Chapter 465 (don't bother reading it unless you are a CPA).

That is still not the end. There are an enormous amount of other town law statutes scattered throughout the 15 volumes of the statute books. There is, I would suggest, a real need to consider simplifying town law either by recodification of town laws or by a very thorough book organizing all of these sections into some roughly coherent order.

I have no doubts that we need towns, but do we really need to have three types of towns--"rural," "urban," and "stealth?" Might it not be useful to recodify the town laws and come up with a single Chapter setting the powers and obligations of all towns? It would be a daunting time-consuming task, it would no doubt raise controversy, but it might be worth the struggle in the long run.

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¹Minn. Const. Art. 12, § 3.
²Great Northern Bridge Co. v. Town of Finlayson, 133 Minn. 270, 158 N.W. 392, 393 (1916).
³See, Goerndt v. Town of Scandia Valley, 148 Minn. 25, 180 N.W. 914 (1921).
⁴Minn. Stat. § 365.10, subd. 5. The electors can't just do this because, say, their favorite tavern is in the adjoining township. The money spent for the roads of the adjoining town must (1) be spent under the control of the "local" town board and (2) must be for the good of the electors' town. Id.
⁵Minn. Stat. § 160.07.
⁶Minn. Stat. § 471.59.
⁷Minn. Stat. § 366.01, subd 2.
⁸See, Op. Atty. Gen. 434A-6.
⁹State Bank of Barnum v. Town of Goodland, 109 Minn. 28, 122 N.W. 468 (1909).
¹⁰Lindgren v. Town of Algoma, 15 Minn. 31, 244 N.W. 70, 71 (1932).
¹¹State v. Hoffman, 159 Minn. 401, 199 N.W. 175 (1924). Just a personal note here--I was born after the heyday of dance halls. My surviving parents and relatives--Scandinavians all--either never went to dance halls or won't own up to it. There are about a half-dozen old town law cases regarding dance halls, and the judges talk about dance halls in lurid, cryptic terms. They say things along the lines of "the immorality, vice, and disorder of dance halls or 'chicken shacks' is far too well-known to merit description here." Just what the heck was going on? "Chicken shacks?" If someone knows more about this, I'd appreciate a call (anonymous or otherwise).
¹²Note that I--in a rather sneaky and lawyerly way--say that the number of streets, houses, etc., has "little" to do with whether a town is an "urban" town. Note that I--again in a rather sneaky and lawyerly way--am not saying that it has "nothing" to do with whether a town is an "urban" town. Not just any town can be an "urban" town. A town must have a population of at least 1000 to elect to become an "urban" town. See, Minn. Stat. § 368.01, subd. 1 & 1a.
¹³Minn. Stat. § 365.025.
¹⁴Minn. Stat. § 164.05.
¹⁵ Minn. Stat. § 164.10 (If a town refuses to use road and bridge funds to maintain a cartway, ten taxpayers can petition for allocation of funds for the upkeep of the cartway and if the electors approve of the petition at a special meeting the board must maintain the cartway with road and bridge funds).
¹⁶Minn. Stat. § 365.10, subd. 1a says that the electors at the annual meeting may decide on the location of pounds, the number of poundmasters, and on whether to discontinue any pounds. Section 365.13 says that if the electors decide to create a pound, a poundmaster must be chosen. I read these, together, to mean that if the electors decide to create pounds the board has no choice but to create them.
¹⁷Minn. Stat. § 365.44.
¹⁸Minn. Stat. § 365.10, subd. 3.
¹⁹Minn. Stat. § 6.54.
²⁰Minn. Stat. § 365.10, subd. 6.
²¹Minn. Stat. § 365.45.
²²State Bank of Barnum v. Town of Goodland, 109 Minn. 28, 122 N.W. 468, 469 (1909).
²³Minn. Stat. §§ 365.10, subds. 7 & 16; 365.26.
²⁴Minn. Stat. § 365.10, subd. 14.
²⁵Minn. Stat. § 365.10, subd 4.
²⁶Minn. Stat. § 365.10, subd. 9.
²⁷Minn. Stat. §§ 365.15-.17; 367.401.
²⁸Minn. Stat. 365.10, subd. 12.
²⁹Minn. Stat. §§ 365.10, subd. 8; 459.06, subd. 1.
³⁰Minn. Stat. § 471.9996, subd. 2.
³¹ Minn. Stat. § 366.11-.13.
³²For examples, see Minn. Stat. § 365.10, subdivisions 4, 5, and 11, and § 366.015.
³³Town of Dell Grove v. Helwig, -- Minn. --, 149 N.W.2d 73, 74 (1967); Town of Partridge v. Ring, 99 Minn. 286, 109 N.W. 248 (1906).
³⁴Town of Partridge v. Ring, 99 Minn. 286, 109 N.W. 248 (1906).
³⁵Minn. Stat. § 365.10, subd. 4.
³⁶Evans v. Town of Stanton, 23 Minn. 368, 370 (1877).
³⁷Great Northern Bridge Co. v. Town of Finlayson, 133 Minn. 270, 158 N.W. 392, 393 (1916).
³⁸Minn. Stat. § 164.04, subd. 2. "Emergency" is not defined, and the board cannot make an emergency levy after October 1st.
³⁹Minn. Stat. § 365.43 (a town must not contract debts or spend more money in a year than the taxes levied for the year without a favorable vote of the majority of the towns electors). See, also, Minn. Stat. § 365.431 (the tax for town purposes must not be more than the amount voted to be raised at the annual town meeting).
⁴⁰Great Northern Bridge Co. v. Town of Finalyson, 133 Minn. 270, 158 N.W. 392, 393 (1916).
⁴¹Lindgren v. Town of Algoma, 187 Minn. 31, 244 N.W. 70, 71 (1932).
⁴²Minn. Stat. § 366.04.
⁴³Bonding powers, generally, are found in Chapter 475, and section 471.15 has provisions regarding issuing bonds for recreational facilities or playgrounds. Certificates of indebtedness are addressed in a number of sections. E.g., Minn. Stat. § 471.69.
⁴⁴Minn. Stat. §§ 365.10, subd. 2; 367.03, subd. 1. Towns are authorized, should the voters so decide, to have five-member boards. Minn. Stat. § 367.33. In fact, one potential burden of electing to become an "urban" town is that the question of having a five-member board must be put to the electorate.
⁴⁵Gabler v. Bertha Township, 169 Minn. 413, 211 N.W. 477, 475 (1926).
⁴⁶Id.
⁴⁷Reed v. Monticello Township, 164 Minn. 358, 205 N.W. 258 (1925).
⁴⁸Id.
⁴⁹Gabler v. Bertha Township, 169 Minn. 413, 211 N.W. 477, 478 (1926).
⁵⁰This is subject to some of what has been discussed earlier. There are some things that simply can't be done without elector approval, and other things that only the electors can do. If the board wants to do one of these things and goes ahead and does it without the electors, the board's action is null and void unless subsequently ratified by the electors.
⁵¹State Bank of Barnum v. Town of Goodland, 109 Minn. 28, 122 N.W. 468, 469 (1909).
⁵²Id. See also, State ex. rel. Morris v. Clark, 116 Minn. 500, 134 N.W. 129, 130 (1912).
⁵³Id. , 122 N.W. at 469 (the board's power "embraces authority to accomplish the function of the township government.").
⁵⁴Gabler v. Bertha Township, 169 Minn. 413, 211 N.W. 477, 478 (1926).
⁵⁵Great Northern Bridge Co. v. Town of Finlayson, 133 Minn. 270, 158 N.W. 392, 393 (1916).
⁵⁶For those of you who are skimming--and I feel sort of dumb adding this footnote because skimmers read footnotes about as often as goats wear wedding gowns--the discussion on this point is contained in the section on the powers of the electorate under the heading "Powers of the Purse-Strings."
⁵⁷Romsdahl v. Town of Long Lake, 175 Minn. 34, 220 N.W. 166, 167 (1928).
⁵⁸Great Northern Bridge Co. v. Town of Finlayson, 133 Minn. 270, 158 N.W. 392, 393 (1916).
⁵⁹Minn. Stat. § 365.54 provides, in part, that the electors appoint the moderator at the annual meeting and that the board decides what to pay the moderator. That's something of a role reversal--the electors make the decision and the board decides how much to pay; usually the board makes the decision and the electors decide how much to pay. Under Minn. Stat. § 164.03, subd. 4, the board at the annual meeting must give a rather comprehensive road and bridge report, explaining the projects done in the previous year, the cost, the anticipated upcoming projects and their estimated costs, as well as a rundown of what road taxes have been levied and paid.
⁶⁰ There are one or two Open Meeting Law cases where the court, in discussing the purposes behind the Open Meeting Law, has said that one purpose of the Open Meeting Law was to allow public participation at meetings, but you can read the Act itself top to bottom and back again and find very little to support that--public observation, yes, but public participation, doubtful.

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For more information on governmental, municipal and township issues, contact Tim A. Strom, tas@hanftlaw.com or 218-722-4766.

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The information provided in this article is general in nature and should not be used as a substitute for professional services and advice. The communication and receipt of this information is not intended to create an attorney-client relationship. Readers should consult with their legal counsel before taking any action on matters covered in this article.

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Copyright 1997, 2001 by Hanft Fride, P.A. All rights reserved. Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802. Phone 218-722-4766; fax 218-529-2401.