State ex rel. Johnson v. Regan
| Citation | 76 S.W.2d 736,229 Mo.App. 237 |
| Parties | STATE OF MISSOURI EX REL. GEORGE C. JOHNSON, RELATOR, v. CHARLES W. REGAN, CITY CLERK, ETC., RESPONDENT |
| Decision Date | 13 November 1934 |
| Court | Court of Appeals of Kansas |
Original proceeding by mandamus by the State at the relation of George C. Johnson against Charles W. Regan, City Clerk of Kansas City, Missouri. On motion by relator for judgment on the pleadings.
Peremptory writ denied and alternative writ quashed.
Samuel W. Liske for relator.
George W. Kingsley, City Counselor, and Marcy K. Brown, Jr. Assistant City Counselor, for respondent.
This is an original action in mandamus instituted in this court by the State of Missouri, at the relation of George C. Johnson, a citizen of Kansas City, Missouri, to compel the city clerk to certify as sufficient an original petition proposing an ordinance requiring the city manager to prepare plans and specifications for a publicly owned gas distribution plant.
The city of Kansas City, Missouri, had adopted and is operating under a special charter. Under the provisions of Article XVII of the city charter, direct legislation is reserved to the people of Kansas City, Missouri, through the initiative, referendum and recall.
Under the provisions of the charter of Kansas City, Missouri, it is required that a petition of referendum to be effective must be signed by the electors of the city equal to at least five per cent in number of the total vote cast for mayor at the last preceding regular municipal election.
According to the pleadings and issues herein presented, the pertinent sections of the charter of Kansas City, Missouri, adopted February 24, 1924, are contained in Article XVII relating to initiative, referendum and recall and are as follows:
signed the foregoing petition paper, and each of them signed his or her name thereto in my presence; I believe that each has stated his or her name and address correctly and that each signer is an elector of Kansas City, Missouri (or of the district if the petition is for the recall of a member of the council from a district).
It stands admitted under the pleadings that at the last preceding municipal election 146,845 votes were cast for mayor and the requisite number of electors required was 7,342.
It stands admitted that on March 26, 1934, an initiative petition purporting to be signed by 7,592 electors of Kansas City, Missouri, was duly filed and that said petition was in due form as to setting forth the proposed ordinance. It further stands admitted that on May 3, 1934, there was duly filed a supplementary initiative petition which was signed by 3,780 names purporting to be electors of Kansas City, Missouri.
It is shown that the city council extended by ordinance the time of two weeks for the city clerk to comply with the duties in checking the signatures, that within that time limit to-wit, on April 23, 1934, the checking of names was completed and the clerk certified that, having canvassed the petition and each name appearing thereon, he found the total number of electors, who had regularly signed, was 5,102 and therefore fell short of the required five per cent.
It appears that the relator applied to the Circuit Court of Jackson County, Missouri, for a writ of mandamus to compel respondent to certify the aforesaid petition as sufficient. This proceeding is shown to have been abandoned and thereafter the supplemental petition above referred to was filed on May 3, 1934, as aforesaid.
It is shown that the respondent canvassed the supplementary petition and on May 14, 1934, certified both the original and supplementary petitions as insufficient in that respondent found the two petitions, when taken together, fell short of the required five per cent of electors of the city.
Thereafter an application for a preliminary writ was made to Judge TRIMBLE of this court; said writ was issued out of this court and made returnable May 31, 1934.
Return was duly made by the respondent on said May 31st, and on the same date the relator filed a reply to said return in which he admits in part and denies in part the matters set forth in said respondent's return. However, on the same date to-wit, May 31st, the relator filed a motion for judgment on the pleadings and oral argument was had at the October term, 1934, of this court and the case submitted on relator's motion for judgment on the pleadings.
OPINION.This court fully realizes the rights of the people of Kansas City, Missouri, to legislate under the provisions of the initiative petition. We further conclude that this court has power by mandamus to compel the City Clerk of Kansas City, Missouri, to perform any purely ministerial duty commanded to be done by the provisions of the charter.
It stands admitted in this case that there were the names of a sufficient number of people on the petitions in issue to meet the requirements of the law. However, the names of people will not suffice, unless a sufficient number are electors of the city. It therefore follows that if the City Clerk of Kansas City, Missouri, who is the respondent herein, has no power to determine who are and who are not electors on initiative petitions it then, of course, follows that he must certify to the city council as sufficient any petition having a requisite number of persons thereon, regardless of whether electors or not.
The respondent in his return herein duly sets forth that he canvassed the initiative petitions in issue and found them insufficient and further sets forth in detail his various reasons for rejecting specified groups. In other words, the respondent affirmatively alleges that he found the initiative petitions insufficient and assigns reasons therefor.
The respondent further answering says, that he is vested with discretion and quasi-judicial powers under the charter to determine the sufficiency of initiative petitions;...
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