Dagley v. McIndoe

• Decision Date: 08 May 1915
• Docket Number: No. 1517.,1517.
• Citation: 190 Mo. App. 166,176 S.W. 243
• Parties: DAGLEY et al. v. McINDOE et al.
• Court: Missouri Court of Appeals

176 S.W. 243

190 Mo. App. 166

DAGLEY et al. v. McINDOE et al.

No. 1517.

Springfield Court of Appeals, Missouri.

May 8, 1915.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Mandamus by O. B. Dagley and others against Hugh McIndoe and others to compel the city council of the city of Joplin to pass an ordinance or to call a special election to pass it by vote of the people on the initiative plan. From a judgment denying relief, relators appeal. Affirmed.

Pearson & Butts, of Joplin, for appellants. D. F. Cameron and Haywood Scott, both of Joplin, for respondents.

FARRINGTON, J.

Appellants herein filed a petition for a writ of mandamus against the mayor, city council, and city clerk, seeking to force the city council of the city of Joplin to pass an ordinance fixing a license tax on plumbers, or to call a special election for the purpose of passing such an ordinance by a vote of the people on the initiative plan provided for in the charter for cities of the second class operating under what is known as the commission form of government (see section 29, p. 443, Sess. Laws 1913, "Ordinance by Initiative").

The issuance of an alternative writ of mandamus was waived, and an answer in lieu of a return was filed by agreement of the parties. The relators (appellants) demurred to the answer on the ground that it did not state facts sufficient to constitute an answer in the cause, nor to defeat the relators' right to a peremptory writ of mandamus. The court overruled the demurrer, and the relators stood upon the question raised by the demurrer, and bring their appeal to this court, alleging error in the trial court's action.

The answer filed denies each and every allegation in the relators' petition, except that respondents are the legally elected and qualified officers of the city of Joplin, and then sets forth the facts upon which the respondents rely to defeat the right to a peremptory writ of mandamus as prayed in the petition. After the general denial the answer proceeds as follows:

"Further answering, respondents state that on the 8th day of September, 1914, there was filed in the office of the city clerk of the city of Joplin an initiative petition praying for the enactment of an ordinance providing for the licensing of plumbers and fixing the license tax on persons engaged in the business of plumbing in said city, a copy of which initiative petition, including said proposed ordinance, is filed with the petition for mandamus herein and marked `Exhibit A.'

"That said petition contained the signatures of about 1,200 persons; that within ten days from the date of the filing of said petition in the office of the city clerk there was filed in the office of said city clerk a petition addressed to the mayor and council of said city, signed by the same persons who had signed said initiative petition, and requesting that their names be withdrawn from said initiative petition, which said withdrawal petition was filed before said initiative petition was submitted by said city clerk to said city council, and before said city council had acted upon said initiative petition, which said withdrawal petition contained the names of a sufficient number of persons who had signed said initiative petition to reduce the number of names on said initiative petition below 15 per cent. of the entire vote cast for all candidates for mayor at the last preceding election at which a mayor was elected in, said city.

"That within ten days from the date of the filing of said initiative petition the city clerk of said city of Joplin duly examined said initiative petition, and from the registration books ascertained that said petition was not signed by the requisite number of registered electors, and that said city clerk did thereupon attach to said initiative petition his certificate showing the result of said examination; that by said clerk's certificate the said petition was shown to be insufficient.

"That thereupon said city clerk presented said initiative petition and said withdrawal Petitions, together with his said certificate, to said city council at a duly and regularly called meeting of said city council, and that said city council at said meeting duly examined said initiative petition and withdrawal petition and said clerk's certificate, and found that said initiative petition did not contain the names of electors equal in number to 15 per cent. of the entire vote cast for all candidates for mayor at the last preceding election at which a mayor was elected, after the names of said persons who had signed said withdrawal petition had been withdrawn from said initiative petition, and after deducting from said initiative petition the names of persons who were not registered electors in said city of Joplin; and thereupon said city council ordered said initiative petition returned to the circulators thereof for amendment.

"That thereupon said city clerk duly returned said initiative petition to the circulators thereof for amendment, and that within ten days from the date of said certificate of said clerk the said circulators of said initiative petition amended the same by the addition of the names of other persons to said petition, and then, on the 28th day of September, 1914, filed said amended initiative petition in the office of said city clerk.

"That thereafter, within five days from the date of the filing of said amended initiative petition in the office of said clerk, the same persons who had signed said amended initiative petition filed in the office of the city clerk a withdrawal petition addressed to the mayor and council of said city of Joplin requesting that their names be withdrawn from said amended initiative petition, which withdrawal Petition contained the names of a sufficient number of persons who had signed said amended initiative petition to reduce the number of names on said amended initiative petition below 15 per cent. of the entire vote cast for all candidates for mayor at the last preceding election at which a mayor was elected in said city, which said withdrawal petition withdrawing the names of said persons from said amended initiative petition was filed in the office of the city clerk before said amended initiative petition had been submitted to said council by said clerk, and before said council had acted upon said amended initiative petition.

"That within five days after said amended initiative petition had been filed in the office of said clerk the said clerk made a like examination of said amended initiative petition, and found that said amended initiative petition did not contain the names of electors equal in number to 15 per cent. of the entire vote cast for all candidates for mayor at the last preceding election at which a mayor was elected, and did thereupon duly"attach to said ameaded initiative petition his certificate showing the result of said examination.

"That said amended initiative petition and said withdrawal petition of said persons withdrawing their names from said amended initiative petition were then by said city clerk duly presented to said city council at a duly and regularly called meeting of said council, and that at said meeting said city council duly examined said amended initiative petition and said withdrawal petition and said certificate of said city clerk, and found that said amended initiative petition did not contain the names of electors equal in number to 15 per cent. of the entire vote cast for all candidates for mayor at the last preceding election at which a mayor was elected, and said city council thereupon ordered said amended initiative petition returned to the persons filing the same. * * * "

The question presented is whether or not an elector who has signed a petition seeking the passage of an ordinance by initiative under section 29, p. 443, Sess. Laws 1913, can withdraw his name from the petition after the same has been filed in the office of the city clerk, but before the clerk makes his certificate to the city council. The respondents contend that under this statute the petitioner has such right to withdraw his name from the petition at any time prior to the time the city council acts upon the petition, or at least before the clerk certifies it to the council as being a sufficient petition.

The statute in question, so far as material to the question before us, is as follows:

"Ordinance by Initiative.

"Section 29. Ordinance by Initiative, How Conducted.—Any proposed ordinance may be submitted to the council by petition signed by registered electors of the city equal in number to the percentage hereinafter required. The signatures to the petition need not all be appended to one paper, but each signer shall add to his signature his place of residence, giving the street and number. One of the circulators of each such paper shall make oath before an officer competent to administer oaths, that the statement[s] therein made are true, and that each signature to the paper appended is the genuine signature of the person whose name purports to be thereunto subscribed. Within ten days from the date of filing such petition, the city clerk shall examine and from the registration books ascertain whether or not said petition is signed by the requisite number of registered...