Dagley v. McIndoe

• Decision Date: 18 May 1915
• Citation: 176 S.W. 243,190 Mo.App. 166
• Parties: O. B. DAGLEY, A. L. LOWE, H. C. SCHILDKNECHT, C. H. COLSON and L. C. ALLEN, Relators, Appellants, v. HUGH McINDOE, CHARLES A. ROBINSON, DANIEL R. HILL, J. B. HODGDON, CHARLES PATTERSON and O. E. LICHLITER, Respondents
• Court: Missouri Court of Appeals

176 S.W. 243

190 Mo.App. 166

O. B. DAGLEY, A. L. LOWE, H. C. SCHILDKNECHT, C. H. COLSON and L. C. ALLEN, Relators, Appellants, v. HUGH McINDOE, CHARLES A. ROBINSON, DANIEL R. HILL, J. B. HODGDON, CHARLES PATTERSON and O. E. LICHLITER, Respondents

Court of Appeals of Missouri, Springfield

May 18, 1915

Appeal from Jasper County Circuit Court, Division Number Two.--Hon David E. Blair, Judge.

AFFIRMED.

Judgment affirmed.

Pearson & Butts for appellants.

(1) The motion for judgment on the pleadings was in effect a demurrer to the answer. State ex rel. v. Adams, 161 Mo. 349; Bank v. Stone, 93 Mo.App. 292; State ex rel. v Delmar Jockey Club, 200 Mo. 63. (2) Where there is a limitation in respect of the filing of a petition such limitation operates against the withdrawal of signers just as it does against further petitioners. Sedalia v Montgomery, 227 Mo. 1; State ex rel. v. Gregory, 127 N.W. 733; State v. Gerhardt, 44 N.E. 469, 33 L.R.A. 313; Sutherland v. McKinney, 45 N.E. 1048. (3) Neither the city clerk nor city council has authority to permit or consider amendments by dismissing petitioners after petition filed. Sec. 29, Sess. Acts, 1913, p. 444; State ex rel. v. Campbell, 120 Mo. 396; State ex rel. v. Carter, 257 Mo. 52, 165 S.W. 773.

E. F. Cameron and Haywood Scott for respondents.

(1) To the same effect, it was permissible and proper, persons who signed the petition to withdraw from the same at any time before the clerk attached his certificate to the petition prior to its being submitted to the city council for action on the same. The question is whether or not the required number of registered electors are petitioners at the time the clerk attaches his certificate showing the number of petitioners and submits the same to the city council for action, not whether the required number were petitioners at the time the petition was filed with the clerk. Sedalia v. Montgomery, 227 Mo. 1; Sedalia v. Montgomery, 109 Mo.App. 197; La Londe v. Board of Supervisors, 49 N.W. 960; People ex rel. v. Sawyer, 52 N.Y. 296; Hays v. Jones, 27 Ohio St. 218; Dutten v. Village of Hanover, 42 Ohio St. 215; Hard v. Elliott, 33 Ind. 220; Black v. Campbell, 112 Ind. 122, 13 N.E. 409; State v. Eggleston, 34 Kan. 714, 10 P. 3; State ex rel. v. County Commissioners, 10 Neb. 32; 4 N.W. 373; State v. Polk County, 60 N.W. 266; Slingerland v. Norton, 61 N.W. 322; Little v. Board of Supervisors, 65 N.E. 78; Kinsloe v. Pogue, 72 N.E. 906; Theurer v. People, 71 N.E. 1000; State ex rel. v. Board of Commissioners, 111 P. 144; Lippincott v. Carpenter, 127 P. 557; State ex rel. v. Grieb, 68 N.W. 1081; Noble v. City of Vincennes, 42 Ind. 125; Ralston v. Beall et al., 30 N.E. 1095; State ex rel. v. Board of Commissioners, 73 N.W. 631; 11 Cyc. 372. (2) Even where the petition has been submitted to the council for action on the same, petitioners may withdraw from the petition at any time before the council takes action on the same. Little v. Board of Supervisors, 65 N.E. 78; Kinsloe v. Pogue, 72 N.E. 906; Theurer v. People ex rel., 71 N.E. 997, 1000; Slingerland v. Norton, 61 N.W. 322; State ex rel. v. Grieb, 68 N.W. 1080, 1081. (3) Where a statute makes it the duty of a body to order an election whenever a petition signed by a specified percentage of qualified voters shall be presented to them asking for such election, the presentation of a petition signed by the required number of legal voters is necessary to confer jurisdiction on the body to call the election; and where a certain time is allowed the body or the clerk of the body to examine registration books and compare the names on the petition with the names on the registration books and ascertain whether the requisite number have signed the petition, pending such investigation, voters who have signed the petition may withdraw from the petition; and where such withdrawal leaves the petition without the required number of signatures, the body has no jurisdiction to order the election. LaLonde v. Board of Supervisors, 49 N.W. 960. Also cases cited under subdivision 1 above. (4) Where the council or the clerk are required by the statute to inquire into and determine what, if any, signatures to a petition should be deducted therefrom and file their certificate thereof and according to such certificate, the petition is insufficient, the determination of the council or the clerk in that regard, in the absence of fraud, is conclusive. Currie v. Paulson, 45 N.W. 855.

FARRINGTON, J. Robertson, P. J., and Sturgis, J., concur.

OPINION

FARRINGTON, J.

Appellants herein filed a petition for a writ of mandamus against the mayor, city council, and city clerk, seeking to force the city council of the city of Joplin to pass an ordinance fixing a license tax on plumbers, or to call a special election for the purpose of passing such an ordinance by a vote of the people on the initiative plan provided for in the charter for cities of the second class operating under what is known as the commission form of government. [See Sec. 29, p. 443, Sess. Laws 1913, "Ordinance by Initiative."]

The issuance of an alternative writ of mandamus was waived, and an answer in lieu of a return was filed by agreement of the parties. The relators (appellants) demurred to the answer on the ground that it did not state facts sufficient to constitute an answer in the cause, nor to defeat the relators' right to a peremptory writ of mandamus. The court overruled the demurrer, and the relators stood upon the question raised by the demurrer and bring their appeal to this court alleging error in the trial court's action.

The answer filed denies each and every allegation in the relators' petition, except that respondents are the legally elected and qualified officers of the city of Joplin, and then sets forth the facts upon which the respondents rely to defeat the right to a peremptory writ of mandamus as prayed in the petition. After the general denial, the answer proceeds as follows:

"Further answering, respondents state that on the eighth day of September, 1914, there was filed in the office of the city clerk of the city of Joplin, an initiative petition, praying for the enactment of an ordinance providing for the licensing of plumbers and fixing the license tax on persons engaged in the business of plumbing in said city, a copy of which initiative petition, including said proposed ordinance, is filed with the petition for mandamus herein and marked 'Exhibit A.'

"That said petition contained the signatures of about twelve hundred persons. That within ten days from the date of the filing of said petition in the office of the city clerk there was filed in the office of said city clerk a petition addressed to the mayor and council of said city signed by the same persons who had signed said initiative petition, and requesting that their names be withdrawn from said initiative petition, which said withdrawal petition was filed before said initiative petition was submitted by said city clerk to said city council and before said city council had acted upon said initiative petition, which said withdrawal petition contained the names of a sufficient number of persons who had signed said initiative petition to reduce the number of names on said initiative petition below fifteen per cent of the entire vote cast for all candidates for mayor at the last preceding election at which a mayor was elected in said city.

"That within ten days from the date of the filing of said initiative petition the city clerk of said city of Joplin duly examined said initiative petition and from the registration books ascertained that said petition was not signed by the requisite number of registered electors, and that said city clerk did thereupon attach to said initiative petition his certificate showing the result of said examination. That by said clerk's certificate the said petition was shown to be insufficient.

"That thereupon said city clerk presented said initiative petition and said withdrawal petitions, together with his said certificate to said city council at a duly and regularly called meeting of said city council, and that said city council at said meeting duly examined said initiative petition and withdrawal petition and said clerk's certificate, and found that said initiative petition did not contain the names of electors equal in number to fifteen per cent of the entire vote cast for all candidates for mayor at the last preceding election at which a mayor was elected, after the names of said persons who had signed said withdrawal petition had been withdrawn from said initiative petition and after deducting from said initiative petition the names of persons who were not registered electors in said city of Joplin; and thereupon said city council ordered said initiative petition returned to the circulators thereof for amendment.

"That thereupon said city clerk duly returned said initiative petition to the circulators thereof for amendment, and that within ten days from the date of said certificate of said clerk the said circulators of said initiative petition amended the same by the addition of the names of other persons to said petition, and then, on the 28th day of September, 1914, filed said amended initiative petition in the office of said city clerk.

"That thereafter within five days from the date of the filing of said amended initiative petition in the office of said clerk the same persons who had signed said amended initiative petition filed in the office of the city clerk a withdrawal petition addressed to the mayor and council of said city of Joplin requesting that their names be withdrawn from said amended initiative petition, which withdrawal petition contained the names of a sufficient number of persons who had signed said amended...