ference is to be allowed to uphold the marriage, yet in this case there is no conflict of testimony. On appellant's own evidence it conclusively appears that the facts relied upon to establish marriage are insufficient, and therefore, conceding that the court may have technically erred in submitting the question upon the basis of general reputation, there is no reversible error, for the reason that the evidence conclusively establishes the finding of the jury.

The plaintiffs introduced in evidence a certain mortgage which had been executed by Mr. Forrest, in which he was described as a widower, and to which appellant had subscribed her maiden name as a witness. This mortgage was executed during the time the parties were living together, and its purpose was to show that appellant was single at the time she signed as a witness, and that Mr. Forrest was a single man. It was clearly competent for that purpose. If their declarations and admissions by way of introduction among their friends are competent evidence to establish a marriage contract, then their declarations in writing during that period whereby they declare themselves to be single are also competent. In the case of Hulett v. Carey, supra, a document executed by the deceased, in which he was described as a single man, was held to be incompetent; but the issue in that case was whether or not the deceased executed a certain written marriage contract. All of the other assignments of error referred to are necessarily disposed of by what has been said.

The result we have arrived at is most unfortunate for appellant. According to the testimony of witnesses and the circumstances surrounding the case, it appears that she believed she had entered into marriage relations with Mr. Forrest, and, having been faithful to him, and nursed him through his last illness, it is a great hardship that she has been unable to establish the fact of the marriage contract. But the rules of law cannot be changed to suit the exigencies of this particular case simply because the parties have acted in good faith.

BOARD OF EDUCATION-PENSION FUND. 1. The board of education of the city of Minneapolis adopted certain rules and regulations which provided that 1 per cent. of the salaries of all teachers employed by the board should be deducted and paid into a fund for the purpose of providing annuities for teachers becoming incapacitated by reason of long service. When teachers were employed by the board they were required to enter into a contract consenting that such percentage of their salaries should be diverted by the board of education for the purpose of establishing such fund. Held, that the act of the board in pro

viding for and in exacting by contract such a percentage of salaries was not authorized by law, and was void.

(Syllabus by the Court.)

Appeal from district court, Hennepin county; David F. Simpson, Judge.

Action by state of Minnesota, on the relation of C. E. Jennison, for writ of mandamus against Joshua Rogers, comptroller of the city of Minneapolis. From an order denying the writ, plaintiff appeals. Affirmed.

Woods, Kingman & Wallace (Hahn, Belden & Hawley, of counsel), for appellant. Frank J. Healey and L. A. Dunn, for respondent.

LEWIS, J. Action by relator to obtain a writ of mandamus requiring respondent, as comptroller of the city of Minneapolis, to sign a warrant drawn by the board of edu cation upon the city treasurer for the sum of $608.37, in favor of John A. Schlener, as trustee of the so-called "Teachers' Retirement Fund." The amount of the warrant represents 1 per cent. of the salaries of all the teachers employed in the public schools in Minneapolis for the month of November, 1901. An alternative writ was issued by the court below requiring respondent to show cause why he should not sign the warrant. Upon the return day respondent moved to quash the alternative writ. The motion was granted, and relator appealed from the judgment entered thereon. The petition alleged that on May 28, 1901, the relator entered into a written contract of employment with the board of education of Minneapolis to teach during the school year of 1901-1902, at a salary of $135 per month, and the contract of employment contained the following clause: "It is agreed that the board may deduct monthly from your salary one per cent. thereof, which, with other funds that may be contributed for the same purpose, shall create a permanent teachers' retirement fund, which shall be held, invested, distributed, and paid out only according to rules and regulations of the board of education respecting such fund.” The rules and regulations referred to in this contract are too long to be inserted in full in this opinion, but the most important sections requiring consideration may be abbrevi ated at follows: Section 124: From and after the 1st day of July, 1900, there shall be deducted from the salaries of all teachers regularly in the employ of the board, monthly, 1 per cent. thereof, which sum so deducted which shall be held, invested, and distributed shall constitute a teachers' retirement fund, in the manner and for the benefit of the persons prescribed by these rules and regulations. Such fund shall be divided into a permanent fund and an annuity fund. The first $20,000 shall be accumulated with one-fourth of the increase therefrom, and shall constitute a permanent fund, no part of which shall be used to pay any annuity or expense. The

"Teach

remainder of the retirement fund, including the other three-fourths of the income from the permanent fund, shall constitute the annuity fund, out of which all annuities and expenses shall be paid. Section 125: All moneys belonging to the retirement fund, and all increase thereof, until invested or paid out as herein provided, shall be deposited in the name of the secretary of the board of education, as trustee, for the benefit of the retirement fund, in such banks as may be selected from time to time by the board of trustees. Sections 126 and 127 provide for a board of trustees, consisting of six members, three to be selected by the teachers from among their number, and the other three to be the president of the board of education, chairman of the finance committee, and the superintendent | of schools. To this board of trustees is given authority to invest all the money in the retirement fund, all investments to be made in the name of the board of education. Subsequent sections provide regulations for the payment of money out by checks, and a system of bookkeeping; and the beneficiaries of the fund are as set forth in section 130: ers who shall have taught in the Minneapolis public schools for a period aggregating twenty years or more of actual service, and who, subsequent to the first day of July, 1900, either at their own request, or on motion of the board of education, shall be or shall have been retired by the board of education from service therein on account of age or mental or physical disability, shall, from and after such retirement and until his or her death, receive, quarterly, in equal instalments, out of said annuity fund, the following annuities respectively, to-wit; (1) Teachers who shall have so taught for a period aggregating twenty years, and not exceeding twenty-five years, shall each receive an annuity not exceeding $200 per year. (2) Teachers who shall have so taught for a period aggregating twenty-five and not exceeding thirty years, shall each receive an annuity of not exceeding $225 per year. (3) Teachers who shall have taught for a period aggregating thirty years or more, shall each receive an annuity of $250 per year." Then follow certain provisos, and section 131, which reads: "If any teacher shall be retired by the board of education after fifteen and before twenty years' service in the public schools of Minneapolis for any of the causes aforesaid, such teacher upon retirement shall receive back the sums so deducted from his or her salary." The petition for the writ contains the following allegation: "Plaintiff further alleges that the establishment and maintenance of a teachers' retirement fund, in the manner and for the purposes set forth in said contract, and in said rules as hereinbefore alleged, does and will conduce to the betterment of the service of the teachers in the schools of said city of Minneapolis, and is and will be in furtherance of the best interests of the public."

Upon the part of appellant it has been argued that the clause in the contract with the board of education permitting a deduction of 1 per cent. of the salaries affects merely the mode of payment of that percentage of the salaries, and is equivalent to an assignment by the teachers of that portion of their salaries to the trustee fund, and that the payment of such percentage of the salaries into the trustee fund is incident to and within the power of the board of education. Upon the other hand, it is contended by respondent that the board of education possessed no authority to make the contracts referred to, and that its act in passing the resolutions and regulations, as well as in exacting the contract from the teachers, was ultra vires and void; also that the 1 per cent. of the salaries thus diverted and paid into the trustee fund was a part of the public moneys of the district, and the act of the board in diverting it from its legitimate channel was ultra vires.

The

We must first consider the authority with which the board of education is vested. powers of the board are found embraced within the following laws: Chapter 157, Sp. Laws Minn. 1878, as amended by the following acts, to wit: Chapter 62, Sp. Laws 1879; chapter 114, Sp. Laws 1881; chapters 49, 52, Ex. Sess., Sp. Laws 1881; chapter 233, Sp. Laws 1883; chapters 87, 97, Sp. Laws 1885; and chapter 22, Sp. Laws 1887. The pertinent part of the law reads as follows: "It shall have the entire control and management of all common schools within the city of Minneapolis. It shall be entitled to demand, have and receive all moneys which have accrued or shall accrue to either of said districts, or to said united district, for school purposes, under any law of this state, or otherwise, and may appropriate and use such moneys for the support and maintenance of the schools within such district as said board may deem best. It may also hire or erect and maintain, as it shall deem best, schoolhouses and school-rooms, but it shall never erect any building upon land to which it has not the title in fee simple. It may employ superintendents and teachers, and make rules and regulations for the government of schools, and for the employment and examination of teachers, and prescribing their powers and duties; and prescribing the description, grading and classification of scholars and their management, and the course of instruction and books to be used, and other matters pertaining to the government and welfare of schools. It may also make by-laws, rules and regulations for its own government. Said board of education is hereby authorized and empowered to levy upon the taxable property in said city such taxes as will raise sufficient sums of money for all school purposes of every character, including the purchase of sites and buildings, and the repairing of school-houses and expenses incident to the maintenance thereof,

and as will also provide for the prompt payment of all debts of said district: provided, that the aggregate annual levy of such taxes shall not exceed four mills on the dollar upon the assessed valuation of said district."

From a consideration of these statutes, we do not think the legislature intended to confer upon the board of education authority to exact from the teachers 1 per cent. of their salaries for the purposes outlined in the rules and regulations above referred to. The question before us must be disposed of upon the facts appearing in the petition, and we are not prepared to concede that the relator voluntarily relinquished that proportion for such purposes. The conviction cannot be avoided that the effect of such a requirement, when applied to all teachers employed, must be to compel some of them, at least, to enter into the contract upon compulsion and without any expectation of receiving any personal benefit therefrom. It is difficult, therefore, to sustain the validity of the act on the part of the board of education in thus withholding the 1 per cent. of the salaries upon the ground that such a plan was voluntarily entered into by the teachers in signing the contract. If a scheme or plan had been adopted among the teachers themselves whereby they voluntarily surrendered a certain proportion of their salaries for the purpose of providing an annuity fund, and the members of the board had volunteered to assist in perfecting and carrying out such a plan, then clearly there would be no ground upon which the city could interfere, and we do not undertake to say that in the furtherance of such a scheme some part of the salaries might not be assigned by the teachers and paid directly into the proper fund out of the city treasury. But we are not dealing with such a condition. Here the board of education are not acting voluntarily, as individual members, but they have acted and are acting as a board, claiming to be clothed with authority under the law to exact from the teachers employed a certain percentage of their compensation. It may be admitted that the purpose to be accomplished in providing an annuity for those who have been faithful, and who have become incapacitated in the service, is a worthy one, and, in a general sense, for the benefit of the schools. We do not wish to intimate that the care of those who have given their life-work to a cause of such benefit to the public may not to some extent be provided for when the limit of activity is reached, and the fund for that purpose be raised by taxation. It certainly conduces to the welfare of the school system to make it profitable and attractive for persons to devote themselves to the work, and, if it would attract to the service a better class of teachers, is not such an object for the benefit and welfare of the school system? Conceding, therefore, that the legislature | might grant the power, within proper limits, to provide a fund for such a purpose, it is

very clear that it has not been done by the enactments above referred to. At the time of the passage of these laws we are not aware that any such power had been exercised by boards of education within this state. The legislature had never attempted to deal with the subject, and no board of education had ever endeavored to put it in use. There is no reason for assuming that the legislature contemplated any such object, and there is certainly nothing within the language employed to intimate that such unusual and extraordinary power was intended to be implied.

The authority of the board is also questioned upon the ground that the money retained is in fact public money, and not the private funds of the teachers. It does not seem very material whether the money so assigned be considered public or private funds,-the result must be the same. But it is interesting to notice what the practical effect is of carrying out the plan outlined in the petition. If the entire salary had been paid to relator, and he had then voluntarily relinquished or paid back 1 per cent. thereof for the purposes expressed, it would clearly be private money; but 1 per cent. never had been paid in fact, and it never was contemplated that it should be. When the relator entered into the contract he surrendered absolute control over that portion of his salary, and, in effect, entered into a contract with the board that his salary would be 99 per cent. of the amount nominally stated. So from this view of the case it appears to us that the money retained never left the treasury, but remained public money, and the board of education had no authority to divert it from the uses mentioned in the statute.

Judgment affirmed.

WIDSTRAND v. WIDSTRAND. (Supreme Court of Minnesota. July 11, 1902.) LIMITED DIVORCE-EVIDENCE.

In an action for limited divorce, evidence examined, and found to support the findings of fact.

(Syllabus by the Court.)

Appeal from district court, Hennepin county; Charles M. Pond, Judge.

Action by Hilma Adele Widstrand against Claes A. Widstrand. Decree for plaintiff. From an order denying a new trial, defendant appeals. Affirmed.

Hall & Kolliner, for appellant. John Lind and A. Ueland, for respondent.

LEWIS, J. This action was brought for the purpose of securing legal separation from the defendant under the provisions of sections 4814-4821, Gen. St. 1894. Plaintiff and de fendant were married at Minneapolis on November 1, 1887, and lived together as husband and wife, with more or less interruptions, un

til shortly before commencement of the present action. Separation is sought by the wife upon the ground of cruel and inhuman treatment on the part of the husband. The answer consisted of a denial of the allegations of the complaint, and a cross bill for a divorce absolute from the plaintiff upon the ground of cruel and inhuman treatment. The court below found none of the allegations of defendant's cross bill to be sustained by the evidence, and granted plaintiff a decree of separation. From an order denying a new trial, defendant appealed.

The assignments of error bring before this court the single question whether the facts, as found by the court, are justified by the evidence, and whether the conclusion of law is justified by the facts found. At the time of their marriage, plaintiff was 26, and defendant 59, years of age. She had followed the profession of teaching, and had been dependent upon her own resources for a living. He was a widower, living with an infant daughter. The record shows that defendant was by profession a musician, and a man of somewhat eccentric habits, rather penurious, and successful in being able to accumulate a considerable property. We shall not attempt to review the history of this unhappy couple. It appears that plaintiff was of a somewhat nervous and irritable nature, not strong in health, but, on the whole, domestic and quiet in her tastes. The defendant chose to live like a hermit in one room of his house, in a method which could but exasperate any woman of refinement. His personal habits were annoying, and his manner unkind. While it was charged by defendant that she was of extravagant disposition, and wished to live beyond his means, we think the trial court was fully justified in finding this charge not well founded. The defendant was the owner of a good residence property, wherein they resided, but, for some reason, refused to make the necessary repairs and furnishings to make it a comfortable home; and this was one of the principal causes of irritation. Defendant also charged that plaintiff was irritable, and persistently inflicted abuse, both physical and in the use of language, upon the defendant; but the record does not sustain the charge, except on one or two occasions, when she was exasperated by the conduct of defendant. Upon the other hand, we do not find the record to disclose such a persistent method or system of cruelty on the part of defendant as would justify an absolute divorce. While it is true that plaintiff must have entered into the marriage relation with 91 N.W.-28

knowledge of defendant's habits and characteristics, and should be held to have accepted the attendant inconveniences and annoyances, yet the defendant also knew when he invited plaintiff to become his wife that she might have ideas and tastes peculiar to herself, and entirely different from those conditions with which he was in the habit of surrounding himself. While the law cannot relieve people from the marriage tie simply because they are unhappy, yet when it appears that the interests of both parties would be conserved by a separation rather than a continuation, there should be some relief; and the statute referred to comprehends such cases. After considering the history of these parties, their peculiarities, their repeated separations and reconciliations, their differences in temperament, habits, and tastes, it seems to us that it would be unwise to withhold the relief sought, especially since the health of plaintiff has been affected. If nothing but misery is to be attained by living together, then what warrant is there in compelling the continuance of that existence? The evidence substantially sustains the facts found by the

court.

Complaint is made by appellant that the court abused its discretion in making allowance for the wife in the decree of separation. According to the evidence, the defendant at the time of the trial had accumulated a property, consisting of rent-bearing real estate in the city of Minneapolis, to the amount of $48,500, and that his personal property amounted to $6,000; that there were no debts; and that his net income per month was $210. The court granted to the wife one-third of the annual income,-$70 per month,-and allowed the sum of $500, altogether, for her attorney's fees. Besides this, she was given absolute control of real property, title to which was in her own name. It is not necessary to consider how this property came to be transferred to her. It was voluntarily done, and there is no attempt to show that it was procured by undue influence; and, although its value was stated to be something like $6,000, yet it was not estimated in making up the total of defendant's property, as above stated. It seemed to be the purpose of the trial court to give the wife sufficient allowance to provide for her comfortably, and yet not in any respect to be a hardship upon defendant; and, since it appears that there are no other children or members of his family dependent upon him, we are unable to see wherein the court abused its discretion.

Order affirmed.

TRUELSEN v. HUGO.

(Supreme Court of Minnesota. July 11, 1902.)

ELECTION-UNINITIALED BALLOT-DEFECTIVE MARKING OF BALLOT.

1. The provisions of the general election law which refer to initialing ballots by the election judges are directory, and not mandatory; and an elector who receives an uninitialed ballot from the judges, and in good faith votes the same, is not disfranchised by reason of the failure of the judges to perform their duty.

2. The findings of the trial court in respect to counting certain ballots sustained, with one exception. A certain ballot was rejected as not being properly marked to disclose the intention of the voter: held, it should have been counted for contestant.

(Syllabus by the Court.)

Appeal from district court, St. Louis county; J. D. Ensign and Wm. Cant, Judges.

Election contest by Henry Truelsen against Trevanion W. Hugo to determine an election to the office of mayor in the city of Duluth. From the judgment both parties appeal. Affirmed.

J. B. Richards, for contestant. Mitchell & Reynolds, for contestee.

LEWIS, J. At the Duluth city election held in February, 1902, Trevanion W. Hugo, contestee, and Henry Truelsen, contestant, were candidates for the office of mayor. The canvassing board gave the election to the contestee by a plurality of seven votes. Proceedings were commenced by Truelsen contesting the election, and on the recount 129 ballots were challenged by the several parties and made the subject of the contest. The 129 disputed ballots were divided by the trial court into two general classes: First, those ballots which were disputed for the reason that the voter had not expressed his intention by his manner of marking the ballot; second, ballots upon which either one or both of the election judges had failed to indorse their initials as provided by law. Of the former class there were 80 and of the latter 49. The court found that the contestee received 3,648 votes and the contestant received 3,643 votes, and declared the contestee elected. Both parties appealed to this court.

We do not deem it necessary to review the findings of the trial court with reference to the various ballots included in the first class. With one exception, all of the ballots which in any way affect the result were correctly counted, within the rule adopted in Truelsen v. Hugo, 81 Minn. 73, 83 N. W. 500, and Pennington v. Hare, 60 Minn. 146, 62 N. W. 116. Exhibit 41 was not counted for the reason that the intent of the voter could not be ascertained by the marks upon it. In this we think the trial court was mistaken. In the proper place opposite the name of the contestant the voter had made four irregular light lines,

1. See Elections, vol. 18, Cent. Dig. § 149.

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as though attempting to make a cross. these lines is a regular cross made by bearing upon the pencil, forming lines that are distinct and heavy enough to clearly distinguish them from the others. This indicates that the voter was not satisfied that he had succeeded in making a cross when tracing the lighter lines, and started in again with a more determined purpose, and succeeded in forming a well-defined regular cross in the proper place. The pencil was evidently in the hands of a nervous or aged person. So viewed, the marks cannot be treated as an attempt at erasure, nor as meaningless, neither as in violation of subdivision 7, § 141, Gen. St. 1894. In this respect this exhibit differs very materially from Exhibit 84, with which it was compared by the trial court. In that instance there was an evident attempt at erasure. Exhibit 41 should have been counted for the contestant, but, inasmuch as this does not change the result, it is not necessary to consider the various ballots which are called into question by the contestee on this appeal.

Section 94, Gen. St. 1894, provides that "two judges of opposite political parties shall, before the voting begins, or as soon thereafter as possible, place their initials on the backs of all ballots they have, immediately under and opposite the fac simile of the officer under whose direction the ballots were printed, and shall not otherwise mark the same." Section 95 provides that "no ballot not officially endorsed, or which has not the initials of two judges of election, in said judges' own handwriting, on the back thereof, shall be placed in the box." It is the claim of the contestant that the 49 ballots minus the initials of the judges were illegal and void, under this statute, and the case of State v. Gay, 59 Minn. 6, 60 N. W. 676, 50 Am. St. Rep. 3S9, is relied upon as authority. In that case there were before the court ballots which bore the initials of judges of the same political faith, and it was held that they were not invalid, for the reason that such a construction would put it in the power of the judges to disfranchise voters by deception on their part, or by mistake in the appointing power, and therefore, inasmuch as the language was not expressly mandatory, the court would hold it to be merely directory. In that case there was no occasion to pass upon the same question which is now presented. It was sufficient for the purposes of that case to meet the objection presented. However, it is now necessary to go a step further, and consider whether the act is not only directory in reference to the political persuasion of the judges, but also in respect to the necessity of placing their initials upon the ballots. In our judgment, it is purely a matter of statutory construction, and all of the provisions of the statute with reference to the preparation, casting, and counting of the ballots