Dunham v. Ardery
| Decision Date | 15 September 1914 |
| Docket Number | 6089. |
| Citation | 143 P. 331,43 Okla. 619 |
| Parties | DUNHAM, CITY CLERK, v. ARDERY. [d1] |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Section 1 of article 8 of the charter of the city of Guthrie is not in conflict with sections 1, 2, and 6 of article 8 of the Constitution, nor with section 2, art. 25 (Schedule) of the Constitution.
Section 1 of article 8 of the charter of the city of Guthrie provides in part as follows: Held, that the duties required to be performed by the clerk are quasi judicial and vest in him the exercise of discretion and judgment.
Where the duties devolving upon a ministerial officer require the exercise of discretion and judgment, and such officer has acted, although erroneously, a writ of mandamus may not lawfully issue to review, reverse, or correct the erroneous decision of such officer, nor to control his decision, even though there may be no other method of review or correction provided by law.
Where an inferior officer is vested with the exercise of discretion or judgment in the discharge of his duties, but in any case where his duties are clear, and there are not sufficient controverted facts to call for the exercise of discretion and judgment, or where such officer acts arbitrarily or fraudulently, a writ of mandamus may be issued to require the performance of his duty. Held, in this case, there being no allegation or facts showing that the defendant acted arbitrarily or fraudulently, it was error to issue the writ of mandamus and to make same permanent.
The term "voters' register," as used in article 8 section 1, of the charter of the city of Guthrie, has reference to and includes precinct books provided by section 3172, Rev. Laws 1910, to be furnished by the State Election Board to the county election board, wherein the inspectors of elections are required to transcribe the names of all electors registered in the precincts, to be arranged in alphabetical order, and the blanks, to be filled to conform to the age, the street number, the post office address, the politics, and the color of each elector, as stated in his registration certificate.
Error from District Court, Logan County; A. H. Huston, Judge.
Mandamus by H. F. Ardery against R. N. Dunham, city clerk of the city of Guthrie. Judgment for plaintiff, and defendant brings error. Reversed, with directions to dismiss.
Burford & Burford and D. M. Tibbetts, all of Guthrie, for plaintiff in error.
Devereux & Hildreth, of Guthrie, for defendant in error.
The city of Guthrie adopted a charter and is operating under a charter form of government. One J. E. Niesley was elected mayor of said city, and the plaintiff in error, R. N. Dunham is the duly appointed and acting clerk. In October, 1913, defendant in error, H. F. Ardery, and other citizens, residents of the city of Guthrie, filed their petition with the plaintiff in error, seeking to recall said J. E. Niesley, mayor. Upon the filing of said petition, plaintiff in error, as city clerk, examined the same and compared it with the voters' register of said city, and gave it such other consideration as he deemed proper and lawful; and on the 30th day of October, 1913, said clerk certified in writing that he had carefully examined the petition and compared the names thereon with the voters' register to ascertain who would be entitled to vote at the election demanded by said parties for a successor to said J. E. Niesley; and as a result of said examination, he found that the same was insufficient, in that it failed to contain the names of the number of legal voters required by the city charter. He also found that said petition on its face was insufficient. Said petition was amended and an additional certificate made by said clerk, in substance as hereinbefore stated. Thereupon defendant in error filed his petition in the district court of Logan county, praying for a writ of mandamus. In substance, the petition alleges that in 1911 J. E. Niesley was duly elected mayor of the city of Guthrie; that defendant, R. N. Dunham, was duly appointed city clerk of said city; that plaintiff, with other qualified electors of the city, prepared and circulated a certain petition for the recall of said Niesley as mayor, which said petitions were signed by more than 800 qualified electors of the city of Guthrie, being more than 35 per cent. of the entire vote cast at the preceding election for all candidates for the office of mayor; that all the signers of said petitions were qualified electors, entitled to vote for a successor to the present incumbent; that each of the petitions sets out the place of residence by street number of every signer; that the incumbent is incompetent to discharge the duties of said office; that he is not in harmony with the public welfare and the best interests of the city of Guthrie; and that he is narrow in his views, and administers said office in a partisan manner, and not for the interests of the taxpayers of said city; that each of said petitions so filed with the clerk was properly and duly verified in the manner provided by the city charter; that said petitions for the recall of said mayor were filed with the city clerk on the 20th day of October, 1913, and within ten days thereafter the city clerk made in part the following certificate:
Plaintiff alleges that afterwards, within ten days from the date of said certificate to the original petitions filed with the clerk, as heretofore alleged, he caused said petitions to be amended by filing additional petitions containing the signatures of qualified electors who had not signed said petition, and by making an additional showing to the clerk that certain names stricken from the original petitions were duly qualified voters and should have been counted. It is alleged that it is the duty of the said R. N. Dunham, city clerk, to make a certificate to the effect that he had examined and compared the petitions with the voters' register, and that the petitions were signed by the requisite number of qualified electors, and that said petitions were regular in all respects; but plaintiff alleges that said defendant has wrongfully refused to so certify to the sufficiency of said petitions and to submit the same to the board of commissioners without delay, in order that they may call an election as provided for by said charter, and that he is without a remedy in the premises, except by writ of mandamus, and prays the court that he be awarded the writ, ordering said defendant to certify to the board of commissioners of the city of Guthrie that said petitions are sufficient.
Upon this petition an alternative writ of mandamus was issued by the district court. Thereafter the defendant filed his response to the alternative writ, which is, in substance, as follows: That said writ of mandamus does not state facts sufficient to entitle plaintiff to the relief prayed for, or to any relief, or to authorize a writ of mandamus to issue (2) that plaintiff has no legal capacity to prosecute or maintain said proceeding; (3) the alternative writ does not state facts sufficient to constitute a cause of action; (4) there is a defect of parties plaintiff, as appears from the averments of said writ. He also denied each and every material averment contained therein. He affirmatively avers that under the general law and the provisions of the charter of the city of Guthrie, he, as clerk of said city, was vested with a discretionary power, and that he was required to exercise his judgment...
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