OPINION
ELLISON, P. J.--
This
is a proceeding in mandamus wherein relator seeks to compel
respondent, who is city clerk, to certify to the common
council of the City of Kirksville a certain petition for an
election to elect a successor to one O. M. Hutchinson as one
of
the councilmen for said city. After a hearing a peremptory
writ was ordered by the trial court.
Kirksville
is a city of the third class and this proceeding is founded
upon section 19, Laws 1913, p. 528, known as the
"recall" statute, which reads as follows: "The
procedure to effect the removal of an incumbent of an
elective office shall be as follows: A petition signed by
electors entitled to vote for a successor to the incumbent
sought to be removed, equal in number to at least twenty-five
per centum of the entire vote for all candidates for the
office of mayor at the last preceding general municipal
election, demanding an election of a successor of the person
sought to be removed shall be filed with the city clerk
which petition shall contain a general statement of the
grounds for which the removal is sought. . . . One of the
signers of each such paper shall make oath before an officer
competent to administer oaths that the statements therein
made are true as he believes and that each signature to the
paper appended is the genuine signature of
the person whose name it purports to be. Within ten days from
the date of filing such petition the city clerk shall examine
and from the voters' register ascertain whether or not
said petition is signed by the requisite number of qualified
electors, and if necessary, the council shall allow him extra
help for that purpose; and he shall attach to said petition
his certificate, showing the result of said examination. If
by the clerk's certificate the petition is shown to be
insufficient, it may be amended within ten days from the date
of said certificate. The clerk shall, within ten days after
such amendment, make like examination of the amended
petition, and if his certificate shall show the same to be
insufficient, it shall be returned to the person filing the
same, without prejudice, however, to the filing of a new
petition to the same effect."
The
respondent clerk claims that the application and alternative
writ fail to state a case or ground of complaint, against
him, under this statute. It will be noticed that the statute
requires the city clerk within ten days from the date of the
filing of the petition, to "examine and from the voters
register ascertain whether or not said petition is signed by
the requisite number of qualified electors," and he
shall attach to the petition his certificate, showing the
result of his examination.
Neither
the application nor the alternative writ contain an averment
that the persons signing the petition for "recall"
as qualified voters were shown to be such by the "voters
register," which the statute requires as a necessary
requisite to make them qualified petitioners for recall.
Our law
is a copy of the statute of Oklahoma, and in adopting it, we
adopted the construction given to it by the courts of that
State. [State ex rel. v. Miles, 210 Mo. 127, 109
S.W. 595; Knight v. Rawlings, 205 Mo. 412, 433, 104
S.W. 38.] The Supreme Court of that State construed the
statute as meaning that the alleged qualified voter, signing
as a petitioner, must appear on the registration books. The court's language is that "the
registration books will disclose to him (the clerk) whether
the names appearing upon the petitionars qualified electors
as shown thereby. His rule for determining the qualifications
of the electors to sign the petition is limited by the act to
the name appearing on the registration books. The election
returns disclose to him the number of electors participating
in the last preceding vote cast for the candidates and enable
him to ascertain whether the number signing the petition was
equal in amount to twenty-five per cent thereof, . . . The
ordinance under which the clerk is required to act was drawn
with the purpose in view of making his duties as simple as
they could be. The evidence given by the registration books
established a certain and ready foundation as a basis, and
was doubtless deemed to be the best and...
