91 S.W.2d 208 (Mo.App. 1936), Fleming v. Fones

Citation91 S.W.2d 208, 230 Mo.App. 1147
Opinion JudgeALLEN, P. J.
Party NameIDA FLEMING, A. H. MONTIETH AND J. A. JONES, APPELLANTS, v. MAUDE E. FONES, RESPONDENT
AttorneyR. A. Pearson and Geo. P. Lang for appellants. Emerson Foulke, A. E. Spencer, Jr., and A. E. Spencer for respondent.
Judge PanelALLEN, P. J. Smith and Bailey, JJ., concur.
Case DateMarch 03, 1936
CourtCourt of Appeals of Missouri

Page 208

91 S.W.2d 208 (Mo.App. 1936)

230 Mo.App. 1147

IDA FLEMING, A. H. MONTIETH AND J. A. JONES, APPELLANTS,

v.

MAUDE E. FONES, RESPONDENT

Court of Appeals of Missouri, Springfield

March 3, 1936

Appeal from the Circuit Court of Jasper County.--Hon. Wilbur J. Owen, Judge.

AFFIRMED.

Judgment affirmed.

R. A. Pearson and Geo. P. Lang for appellants.

The statutory requirements that signatures to referendum or recall petitions be supported by the recited affidavit of the circulator are mandatory, and absent, they are lacking in prima facie proof and without legal effect. Westbrook v. McDonald (Ark.), 43 S.W.2d l. c. 361 (6); Morford v. Pyle (S. D.), 220 N.W. 907; Kaesser v. Becker (Mo.), 243 S.W. 350 (2); State v. Trig, 72 Mo. 365. Where jurisdictionally required that a petition be properly verified, it is as much jurisdictional that any counter petition or amendment likewise be verified, and it must be of equal formality. State ex rel. v. Sullivan (Mo.), 224 S.W., l. c. 339; 49 C. J. 592, sec. 845; Johnson v. Mooney (Tex.), 241 S.W. 308. Mandamus is a proper remedy to control a discretion and correct its exercise when the public interest is involved and its abuse appears, or it is arbitrarily or unreasonably exercised, or works an injustice without other adequate remedy, or is preliminarily based on a matter of law. 38 C. J. 608, secs. 74, 85, 598; State v. Adcock, 206 Mo., l. c. 556; State v. Seehorn, 223 S.W. 664, 283 Mo. 49. Initialed given name is proof of identity with the full name, especially when street address of both are identical, and such petitioner must be counted. Section 3058, R. S. Mo. 1935.

Emerson Foulke, A. E. Spencer, Jr., and A. E. Spencer for respondent.

The duties imposed upon the respondent clerk are quasi-judicial, and not merely ministerial, and under the allegations of the petition mandamus will not lie to coerce the judgment of the clerk in the performance of duties which require the exercise of discretion and judgment. State ex rel. Crow v. Carothers (K. C. Ct. App. 1920), 204 Mo.App. 209, 222 S.W. 1043; State ex rel. Johnson v. Regan (K. C. Ct. App. Nov., 1934), 76 S.W.2d 736. The right of signers to a petition for recall or similar petitions under like statutes, to withdraw their names is well settled in this State provided this is done before the city clerk certifies as to the sufficiency of the petition. Dagley v. McIndoe, 190 Mo.App. 166, 176 S.W. 243; City of Sedalia ex rel. v. Montgomery, 109 Mo.App. 197, 88 S.W. 1014. The petition filed by relators is subject to demurrer because it does not contain an averment that the persons signing the petition for recall as qualified voters were shown to be such by the list of registered voters of the city, which the statute requires as a necessary prerequisite to make them qualified petitioners for recall. State ex rel. Crow v. Carothers, supra.

ALLEN, P. J. Smith and Bailey, JJ., concur.

OPINION

[230 Mo.App. 1149] ALLEN, P. J.

--This is an action in mandamus, and was instituted on the 28th day of November, 1934, in the Circuit Court of Jasper County.

The petitioners were Ida Fleming, A. H. Montieth and J. A. Jones, Appellants, v. Maude E. Fones, the City Clerk of Joplin, respondent. The petition prayed for a writ of mandamus against respondent, requiring her as city clerk of Joplin, to show her examination of the recall petition, for such election, including the cancelled and alleged illegally withdrawn names to said petition.

The petition of appellants, for the removal of A. C. Maher, as mayor of said city of Joplin, stated as grounds therefor "that as such officer he has sought to assume authority and dictate administration outside the authority of his office, as in the instance of the Park Board Supervision. He has discharged faithful and experienced employees without hearing or just cause for wholly political ends, as instance fireman, whose pension rights were at the point of maturing, and to make places for payment of political obligations. He has increased the tax rates, added to the pay rolls and current expenses of city administration, in face of campaign promises to reduce them, and seeks to increase the burdens of municipal taxes at a time the business men of the city are least able to carry on, and is committed in general to a self-important, dictatorial and oppressive course in the conduct of municipal affairs." And that the said clerk certified said petition as insufficient in number of signers, the required number as computed at the last preceding election at which a mayor was elected, being 1766, or twenty per cent of such mayoralty vote.

That thereafter, and within ten days from said certification, amended petitions in like form, signed by qualified voters, and duly verified, were filed with said city clerk, and upon examination and comparison, were by said clerk declared insufficient, and by her certified as containing only 1564 names of qualified and registered voters; and further alleged that said respondent, clerk, withdrew and cancelled from said recall petition the names of alleged, competent, registered and qualified voters, to the number of 202.

It is not alleged that these withdrawal slips were not in fact signed by the persons

Page 209

whose names appeared thereon, but it is alleged that said withdrawal slips were unverified and unacknowledged or sworn to in the manner of the recall petition, or in any manner by the purported signers or any one for them, and that they were not offered to or received by the clerk from any signer in person, but were received from other persons, without any showing of right or verified authority to file the same.

It is also alleged that the manner of accumulating the withdrawal slips was illegal and contrary to the provisions of the city charter, and that the members of the police force and fire department using [230 Mo.App. 1150] the equipment and supplies of the city, contributed their time, services and official character in circulating the slips and soliciting signers, so as to obstruct and defeat such recall petition, in the interest of the officer petitioned against.

It is also alleged that the respondent clerk arbitrarily and without right, followed the practice of striking off names from the petition for the sole reason that the signer appeared on the petition by initials and appeared registered by full name or vice versa, and also cancelled signatures where the residence address appeared different from the registered address, although such signer was registered for the same voting district as signed. How many signatures were affected by this allegation is not stated.

The general allegation of the petition that the clerk acted in an erroneous, arbitrary, illegal and unauthorized manner must be held limited by the specific allegations following this statement, in and by which the petitioners undertook to state how the clerk did act.

The trial court sustained respondent's demurrer to this petition, and the case is here on appeal by plaintiffs, appellants.

The statute controlling the recall of elective officers in the city of Joplin, a city of the second class, is Section 6526, Revised Statutes of Missouri, 1929; 8 Mo. Stat. Ann., page 5504, which provides that a petition for recall must be signed by twenty per cent of the entire vote cast for mayor, at the last preceding general election of such city, which provision it is urged by respondent, means that the petition must be signed by then competent and qualified voters of the city, to a number equal to said twenty per cent, in order to comply with this requirement; and that to make a citizen a competent signer of the petition he must not only be a qualified voter, under the laws of the State, but must be properly registered in the precinct of the city in which he lives at the time of the signing of the petition, and that his...

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10 practice notes
  • 293 N.W. 865 (Mich. 1940), 447, People ex rel. Wright v. Kelly
    • United States
    • Michigan Supreme Court of Michigan
    • September 6, 1940
    ...an independent investigation to determine the genuineness of the signatures. Thompson v. Secretary of State, supra; Fleming v. Fones, 230 Mo.App. 1147, 91 S.W.2d 208; State ex rel. v. Carter, 257 Mo. 52, 165 S.W. 773; State ex rel. Ayres v. Amsberry, 104 Neb. 273, 177 N.W. 179, 178 N.W. 822......
  • 238 S.W.2d 346 (Mo. 1951), 42059, Cowherd Development Co. v. Littick
    • United States
    • Missouri United States State Supreme Court of Missouri
    • March 12, 1951
    ...911; Blackwell v. City of Lee's Summit, 326 Mo. 491, 32 S.W.2d 63; Dagley v. McIndoe, 199 Mo.App. 166, 176 S.W. 243; Fleming v. Fones, 230 Mo.App. 1147, 91 S.W.2d 208; Riverview State Bank v. Courtney, 229 Mo.App. 111, 74 S.W.2d 81. (3) The third extension agreement not only withdrew from t......
  • 572 S.W.2d 449 (Mo. 1978), 61025, United Labor Committee of Missouri v. Kirkpatrick
    • United States
    • Missouri United States State Supreme Court of Missouri
    • October 24, 1978
    ...S.W. 346, 352 (banc 1922), quoted in footnote No. 5, Supra, and State ex rel. Ferro v. Oellermann, 458 S.W.2d at 587; Fleming v. Fones, 230 Mo.App. 1147, 91 S.W.2d 208, 212 (1936). The same rule applies in other jurisdictions. See, e. g., In re Initiative Petition No. 272, 388 P.2d 290, 293......
  • 204 S.W.2d 291 (Mo. 1947), 40175, Board of Regents for Northeast Mo. State Teachers College v. Palmer
    • United States
    • Missouri United States State Supreme Court of Missouri
    • September 8, 1947
    ...having already been awarded at the application of Wimp, none could lawfully be awarded at the application of Palmer. Kerby v. Davis, 91 S.W.2d 215, l.c., 222, syllabus 10. (6) Sec. 2 of House Bill No. 932 expressly gives to educational institutions, acting through their governing bodies, th......
  • Request a trial to view additional results
10 cases
  • 293 N.W. 865 (Mich. 1940), 447, People ex rel. Wright v. Kelly
    • United States
    • Michigan Supreme Court of Michigan
    • September 6, 1940
    ...an independent investigation to determine the genuineness of the signatures. Thompson v. Secretary of State, supra; Fleming v. Fones, 230 Mo.App. 1147, 91 S.W.2d 208; State ex rel. v. Carter, 257 Mo. 52, 165 S.W. 773; State ex rel. Ayres v. Amsberry, 104 Neb. 273, 177 N.W. 179, 178 N.W. 822......
  • 238 S.W.2d 346 (Mo. 1951), 42059, Cowherd Development Co. v. Littick
    • United States
    • Missouri United States State Supreme Court of Missouri
    • March 12, 1951
    ...911; Blackwell v. City of Lee's Summit, 326 Mo. 491, 32 S.W.2d 63; Dagley v. McIndoe, 199 Mo.App. 166, 176 S.W. 243; Fleming v. Fones, 230 Mo.App. 1147, 91 S.W.2d 208; Riverview State Bank v. Courtney, 229 Mo.App. 111, 74 S.W.2d 81. (3) The third extension agreement not only withdrew from t......
  • 572 S.W.2d 449 (Mo. 1978), 61025, United Labor Committee of Missouri v. Kirkpatrick
    • United States
    • Missouri United States State Supreme Court of Missouri
    • October 24, 1978
    ...S.W. 346, 352 (banc 1922), quoted in footnote No. 5, Supra, and State ex rel. Ferro v. Oellermann, 458 S.W.2d at 587; Fleming v. Fones, 230 Mo.App. 1147, 91 S.W.2d 208, 212 (1936). The same rule applies in other jurisdictions. See, e. g., In re Initiative Petition No. 272, 388 P.2d 290, 293......
  • 204 S.W.2d 291 (Mo. 1947), 40175, Board of Regents for Northeast Mo. State Teachers College v. Palmer
    • United States
    • Missouri United States State Supreme Court of Missouri
    • September 8, 1947
    ...having already been awarded at the application of Wimp, none could lawfully be awarded at the application of Palmer. Kerby v. Davis, 91 S.W.2d 215, l.c., 222, syllabus 10. (6) Sec. 2 of House Bill No. 932 expressly gives to educational institutions, acting through their governing bodies, th......
  • Request a trial to view additional results