KÆsser v. Becker
| Decision Date | 18 July 1922 |
| Docket Number | No. 23554.,23554. |
| Citation | 243 S.W. 346,295 Mo. 93 |
| Court | Missouri Supreme Court |
| Parties | KÆSSER v. BECKER, Secretary of State (HAMEL, Intervener). |
Appeal from Circuit Court, Cole County; J. G. Slate, Judge.
Suit by Paul V. Kæsser against Charles U. Becker, Secretary of State of the state of Missouri, In which Albert H. Hamel intervened as a party defendant. From a decree for plaintiff, defendants appeal. Affirmed,
Appeal from a decree of the Cole county circuit court at the suit of a taxpaying citizen, enjoining the secretary of state from submitting to a referendum vote of the people Senate Bill No. 433, passed by the Fifty-First General Assembly.
On July 7, 1921, Albert H. Hamel was given leave by the trial court to that end, and tiled therein his answer as an intervening defendant. As appears from its title, Senate Bill No. 433 is "An act to amend article 1, chapter 35, of the Revised Statutes of Missouri 1919, pertaining to `medicine, surgery and midwifery,' by repealing section 7332 and enacting in lieu thereof two new sections pertaining to the same subject to be known as section 7332 and section 7332a," and popularly known as the medical college bill. Laws 1921, p. 471.
It is unnecessary to review even the substance of the pleadings. The sole question for our determination is the legal sufficiency of the referendum petitions filed from the Fourth Congressional District. Without the petitions from that district, it is admitted that the effort of the opponents of said legislative act to refer it to the people must fail. We quote from the statement in appellant's brief as follows:
The Attorney General was originally made u party defendant, but it developed that he had certified the ballot title to the secretary of state prior to the institution of the suit, and the case was dismissed as to him. Hon. N. G. Sevier was appointed as special master in chancery by the trial court; and filed his report therein. In addition to the conceded facts that 19 signatures to the petition in said. Fourth congressional district were duplicates and one signature was by a person under legal age, the master in chancery found that 13 of the signatures on said petition were placed thereon by other persons "without the knowledge or authority, prior or subsequent, of the persons whose names they purport to be"; that 13 other names appearing as signers "are names which were written on said petition without prior authority of the persons whose names they purport to be, the writing of which was subsequently ratified by said persons." He further found that the names of 235 other persons appearing on the petitions were not signed. in the immediate presence of the per son who made affidavit to the, sheet or sheets of said petition on which said names appear; said master in chancery found that no fraud whatsoever was practiced by the secretary of state in counting the names upon petitions presented to him and filed in his office, and that said secretary of state had no means of knowing or ascertaining the legality of the signatures thereon. We have omitted certain findings of the master in chancery as to other names appearing on the petition, being few in number, which we think need not be discussed in this opinion. In due time appellants filed their exceptions to the report of the master in chancery, and thereafter the trial court found said exceptions to be without merit, and overruled the same, and approved the report and finding of facts of the master in chancery, and entered judgment in favor of the plaintiff and against the defendant secretary of state and the intervening defendant, and made permanent the temporary injunction theretofore granted, restraining the secretary of state of Missouri, his attorneys, agents, and employés, from doing any act in furtherance of submitting said Senate Bill No. 433 to the people at the next General Assembly. After unsuccessful motion for new trial, defendants have appealed.
Jesse W. Barrett, Atty. Gen., and Albert Miller, Asst. Atty. Gen., for appellant. Dumm & Cook, of Jefferson City, for intervening appellant.
Lewis C. Gabbert, of St. Joseph, for respondent.
DAVID E. BLAIR, J. (after stating the facts as above).
The sole question before us is the correctness of the finding of facts made by the master in chancery and approved by the trial court. The contention is that such findings are not supported by the preponderance of the evidence. The initiative and referendum amendment to the Constitution of Missouri (section 57, article 4) provides that the referendum May be ordered upon legislative acts by the petitions of 5 per cent. of the legal voters in each of at least two-thirds of the congressional districts in the state or by the legislative assembly itself. Appellants admit that sufficient petitions were not filed from 5 of the 16 congressional districts, and respondent makes no contention that the petition submitted from 10 of the congressional districts of the state were not in every way sufficient. Legal and sufficient petitions from 11 congressional districts must be presented to and tiled in the office of the secretary of state within the prescribed time to authorize the submission of a legislative act to the referendum vote of the people. If, therefore, the petitions submitted from the Fourth congressional district do not contain the requisite number of signatures of legal voters of said district, said referendum must fail.
The issues of fact are thus brought within a very narrow compass. It stands admitted that 3,513 signatures of legal voters in said Fourth congressional district is the minimum number of signatures required, and appellants do not claim that said petitions on their face contain more than 3,544 signatures of legal voters, and they admit that 20 of these must be held to be illegal signatures, leaving the exceedingly small margin of 11 signatures, upon the legality of which depends the right to refer the act in question. If, therefore, the finding of the trial court should be fully sustained as to any one of the groups of signatures above referred to, the judgment below must be affirmed.
II. At page 622 of the abstract of the record there is printed as part of the record of the master in chancery a list of 16 names which he reports were written on said petitions without the authority prior or subsequent of the persons whose signatures they purport to be, to wit: Mrs. J. T. Adkisson, E. L. Matthews. Mrs. Geo. Sauer, Mrs. Marie Scott, W. B. Blackston, Florence Meek, Mrs. Frankie E. Barbee, Louise Weare, Patrick Buckley, Mike Birnbaum, Hannah Birnbaum, Bud Howard, Ressa Spiers, B. J. O'Malley, C. L. Gallagher and C. Gallagher. To this list the testimony shows the name of George Meek, of Wallace precinct, Buchanan county, apparently should be added, as his testimony is as strong in denial of the genuineness of his signature as that of any of the others listed by the master in chancery. Respondent claims another signature was affixed by a person under legal voting age, and should not be counted. The name is not given, and we have not deemed it necessary to search the entire record to find it.
Of these 17 names Mrs. Effie Hickerson secured the signatures of 8 upon two different petitions. She testified generally that the signatures on the petitions were genuine, except in certain specified instances. Sne testified that H. L. Matthews signed the petition, but omitted to give his address, which she later supplied herself from the city directory without even being certain it was the same Matthews, or that the name in the directory was Matthew or Matthews. Matthews denied signing the petition. He testified that he always signed his name "Matthews," and the petition has it "Matthew," omitting the final "s." He also testified that no other person of the same name lived at the address given.
Mrs. Hickerson testified that she signed the names of certain of her friends and relatives, including W. D. Blackston, Florence Meek, George Meek, and Mrs. Frankie Barbee, in their presence and at their individual request. All of the persons named testified, not only that they did not sign their names to the petition, but firmly denied authorizing Mrs. Hickerson to do it for them. All of the above four persons were acquaintances of long standing of Mrs. Nickerson, and. Mrs. Barbee wan a sister-in-law. So motive for their swearing falsely is shown, and it is hard to sea how they could well be mistaken under the circumstances. As to the controversy over the last 4 names and. H. L. Matthews, `there is abundant testimony to support the finding of the master in chancery. There is no contention of mistaken identity.
Three other names secured by Mrs. Hickerson were C. L. Gallagher, C. Gallagher, and B. J. O'Malley. C. L. Gallagher denied his purported signature, and testified that he did not authorize any one else to sign his name. C. Gallagher, who is the father of C. L. Gallagher, testified likewise. B. J. O'Malley denied his purported signature or authority in any one to sign his name. All three of the above testified...
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