State v. Sullivan

• Decision Date: 12 July 1920
• Docket Number: No. 21947.,21947.
• Citation: 283 Mo. 546,224 S.W. 327
• Parties: STATE ex rel. WESTHUES, Pros. Atty., v. SULLIVAN, Secretary of State, et al.
• Court: Missouri Supreme Court

224 S.W. 327

283 Mo. 546

STATE ex rel. WESTHUES, Pros. Atty., v. SULLIVAN, Secretary of State, et al.

No. 21947.

Supreme Court of Missouri, in Banc.

July 12, 1920.

Appeal from Circuit Court, Cole County; J. G. Slate, Judge.

Action by the state of Missouri, on the relation of Henry J. Westhues, prosecuting attorney of Cole county, Mo., against John L. Sullivan, Secretary of State, and Frank W. McAllister, Attorney General, in which John C. Hall and R. T. Wood, citizens and taxpayers, were allowed to intervene as plaintiffs, and Maurice J. Cassidy and others were allowed to intervene as defendants. From a judgment enjoining the defendants first named from committing any act towards accepting and filing petitions for the referendum of the Workmen's Compensation Act, defendants and the intervening defendants appeal. Reversed and petition dismissed.

Frank W. McAllister, Atty. Gen., and C. P. LeMire, Asst. Atty. Gen., for appellants.

John M. Atkinson, of St. Louis, for intervening appellants.

Alroy S. Phillips and John C. Hall, both of St. Louis, Roy D. Williams, of Kansas City, D. F. Calfee, of Jefferson City, and Jesse McDonald, of St. Louis, for respondent and respondent intervener.

GRAVES, J.

Under our rule 15 (198 S. W. vi) the appellant in making his brief is required, among other things, to make "a fair and concise statement of the facts of the case, without reiteration, statements of law, or argument"; and as to the respondent, under the same rule, it is said: "The respondent in his brief may adopt the statement of appellant; or, if not satisfied therewith, he shall, in a concise statement, correct any errors therein."

The appellant has filed a statement of 19 printed pages, which covers an analysis of the pleadings and evidence. Turning to respondent's brief, we find no corrections or criticism of this statement up to page 10 thereof; and under the rule we are at liberty to assume defendants' statement to this point to be a fair statement, and, as it is as concise a statement of the pleadings as we could make, we adopt it, as follows:

"This action was brought in the name of the state of Missouri, at the relation of Henry J. Westhues, prosecuting attorney of Cole county, Missouri, against John L. Sullivan, Secretary of State, and Frank W. McAllister, Attorney General. The petition was filed in the circuit court of Cole county, Missouri, on the 8th day of August, 1919. The purpose of the action, as set out in the prayer of the petition, was to restrain and enjoin defendant Sullivan, as Secretary of State, from committing and continuing any act towards accepting and filing the petition ordering the Workmen's Compensation Act to be referred to a vote of the people, or towards certifying and transmitting a copy of said act to the Attorney General, or towards printing on the official ballot any title of said act, and to restrain and enjoin defendant Frank W. McAllister, as Attorney General, from committing and continuing any act towards providing and returning to the Secretary of State a ballot title for said measure, and praying that in the meantime a temporary restraining order and a temporary injunction be issued restraining both defendants from committing and continuing any act towards referring said Workmen's Compensation Act to a vote of the people.

"The petition sets out the title of the Workmen's Compensation Act (Laws 1909, p. 456), and alleges that on or prior to August 7, 1919, there was left with defendant Sullivan, as Secretary of State, for filing, certain documents purporting to be petitions ordering said Workmen's Compensation Act to be referred to the people of the state for their approval or rejection at the regular election to be held November 2, 1920, and purporting to be signed by five per cent. of the legal voters in each of twelve of the congressional districts of the state, to wit, the First, Second, Fifth, Sixth, Eighth, Ninth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, and Sixteenth congressional districts; and further alleges that, notwithstanding that, on grounds thereinafter stated, objections to the acceptance and filing of said petition have been made to defendant prior to, and at the time of, offering thereof for filing, and that defendants at said times knew that said petition was not legally sufficient, nevertheless defendant Sullivan, as Secretary of State, was threatening and intended to accept and file said petitions, and to certify and transmit to the defendant Frank W. McAllister, as Attorney General of the state of Missouri, a copy of said measure, and that defendant Frank W. McAllister, as such Attorney General, was threatening and intended to provide and return to defendant Sullivan, as Secretary of State, a ballot title for said measure, and that defendant Sullivan, as Secretary of State, was threatening and intended to print on the official ballot the title thus certified to him, and that, if the said defendants were permitted to carry out their threats and intentions aforesaid, great and irreparable wrong would result to the people of the state of Missouri, for which adequate remedy could not be afforded at law.

"The petition then states that the Workmen's Compensation Act contained an emergency clause reciting that, it being necessary for the commission therein created to be fully organized to make preliminary preparations, and there being immediate necessity therefor, an emergency is created within the meaning of the Constitution, and, except as therein otherwise provided, said act shall take effect from and after the day of its approval, and that under section 57 of article 4 of the Constitution of Missouri the referendum of said act could not be ordered in that, in fact and by reason of the industrial unrest and industrial conditions and remedies thereof, and as declared by the General Assembly, said law was and is necessary for the immediate preservation of the public peace, health, and safety.

"The petition then states that although defendant Sullivan, as Secretary of State, Wallace Crossley, Lieutenant Governor, acting as Governor in the absence of the Governor from the state, and the persons offering the petitions for filing, were all then present in the office of said defendant Sullivan at the time said petitions were offered for filing, said defendant did not, nor has he since, detached the sheets containing the signers' affidavits, nor has he caused them to be attached to one or more printed copies of the measure so proposed by referendum petition, nor delivered the detached copies of such measure to the person or persons offering same for filing.

"The petition then alleges that, as defendants well knew, said petitions were not legally sufficient for substantially the following reasons:

"(1) That said petitions were not signed five per cent. of the legal voters in each of at least two-thirds of the congressional districts of the state, as required by law.

"(2) That the persons who circulated said petition were paid ten cents or other valuable consideration for each name they procured to be signed on said petition.

"(3) That in the First, Second, Fifth, Sixth, Eighth, Ninth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, and Sixteenth Districts approximately 15,200 persons signed said petitions, who were not legal voters in the districts in which they signed, and that without the aforesaid signatures said petitions in each of said districts would not contain five per cent. of the legal voters thereof.

"(4) That approximately 15,200 fictitious names were placed on the petitions circulated in the above-named congressional districts, and that without said fictitious names said petitions in each of said districts would not contain five per cent. of the legal voters thereof.

"(5) That the petitions purporting to be circulated in each of said congressional districts are in many places signed more than once by the same alleged voters.

"(6) That in many respects said petitions failed to conform to the requirements of the law.

"(7) That approximately 15,200 signatures appear on the petitions circulated in the above-named districts which were not signed by the persons whose names they purport to be nor by their authority, and that, without signatures, said petitions are insufficient.

"(8) That the persons who circulated said petitions and various other persons represented to the people of the state of Missouri and to all signers of said petition that said petitions were for a protest against ten-cent street car fares, low wages, or were to refer the liquor search and seizure act, or the resolution attacking national prohibition, or that no Workmen's Compensation Act had been passed, or that almost all of the workers of the state were dissatisfied with said Compensation Act and desired it submitted to a referendum of the people, and made various other false and fraudulent representations by reason of which all of said petitions are null and void.

"(9) That, by reason of said false representation, approximately 13,250 signers of said petitions have withdrawn their names therefrom, and that without the names of said legal voters who have so withdrawn said petitions did not contain five per cent. of the legal voters in two-thirds of the congressional districts of the state; that approximately 15,500 voters who signed said petition in the aforesaid congressional districts desired and intended to withdraw their names from said petition; and that without the names of said voters who so desire and intend to withdraw said petitions do not contain signatures of five per cent. of the legal voters in each of two-thirds of the congressional districts of the state.

"On the day of filing of the petition the circuit court of Cole county, Missouri, granted a temporary restraining order against the defendants, and thereafter, on the 11th day of September, 1919, said circuit court granted a temporary injunction in said cause, and gave def...