Fleming v. Fones
| Decision Date | 03 March 1936 |
| Citation | 91 S.W.2d 208,230 Mo.App. 1147 |
| Parties | IDA FLEMING, A. H. MONTIETH AND J. A. JONES, APPELLANTS, v. MAUDE E. FONES, RESPONDENT |
| Court | Missouri Court of Appeals |
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.
--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 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 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 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 proper name must appear upon the registration books.
The statute further provides that within ten days from the date of filing of such petition
It is contended by respondent that the duties imposed upon the clerk, by the foregoing statute, 6526, Revised Statutes of Missouri, 1929, are quasi-judicial, and not merely ministerial, and that 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.
It is further contended that 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 that this is done before the city clerk certifies as to the sufficiency of the petition.
And, it is further contended that the petition filed by relators is subject to demurrer, because it does not contain an averment that the persons signing the petition for recall...
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