P. H. Coney and 7489 Other Electors of The City of Topeka v. The Mayor and Commissioners of The City of Topeka

• Decision Date: 12 June 1915
• Docket Number: 20,051
• Citation: 149 P. 689,96 Kan. 46
• Parties: P. H. CONEY AND 7489 OTHER ELECTORS OF THE CITY OF TOPEKA, Plaintiffs, v. THE MAYOR AND COMMISSIONERS OF THE CITY OF TOPEKA et al., Defendants
• Court: Kansas Supreme Court

149 P. 689

96 Kan. 46

P. H. CONEY AND 7489 OTHER ELECTORS OF THE CITY OF TOPEKA, Plaintiffs, v. THE MAYOR AND COMMISSIONERS OF THE CITY OF TOPEKA et al., Defendants

No. 20,051

Supreme Court of Kansas

June 12, 1915

Decided. January, 1915.

Original proceeding in mandamus.

SYLLABUS

SYLLABUS BY THE COURT.

1. STATUTES -- Erroneous Use of Figure -- Legislative Intent--Proper Figure Substituted. Application of the familiar rule of statutory construction that where the legislature erroneously uses one word or figure for another and the context affords the means of determining conclusively the legislative intent, the proper word or figure will be deemed substituted therefor.

2. CITIES--Petition for Election to Abandon Commission Form of Government--Testing Sufficiency of Petition. The sufficiency of a petition to the mayor and commissioners of a city of the first class asking that an election be called to determine whether such city shall abandon its commission form of government should be tested by the number of registered voters whose signatures appear on such petition.

3. SAME--Petition Returned to Petitioners if Insufficient. Where such petition is insufficient, the statute requires that it be returned to the petitioners.

J. G Slonecker, A. B. Quinton, J. H. Guy, E. L. O'Neil, S. L. Lashbrook, T. D. Humphreys, and A. A. Graham, all of Topeka, for the plaintiffs.

George P. Hayden, city attorney, for the defendants.

OPINION

DAWSON, J.:

This is an application for a writ of mandamus to compel the mayor and commissioners of Topeka to call an election to determine whether the city of Topeka should abandon its commission form of government and return to the old system of government by a mayor and councilmen.

The statute authorizing such election is section 1241 of the General Statutes of 1909, which, in part, reads:

"Any city which shall have operated for more than four years under the provisions of this act may abandon such organization thereunder and accept the provisions of the general law of the state then applicable to the cities of its population, or if now organized under special charter may resume said special charter, by proceeding as follows: Upon the petition of not less than twenty-five per centum of the electors of such city, a special election shall be called at which the following proposition only shall be submitted: 'Shall the city of (name the city) abandon its organization under chapter 114 of the General Session Laws of 1907, and the acts amendatory thereto, and become a city under the general law governing cities of like population (or, if now organized under special charter, shall resume said special charter)? . . . The sufficiency of such petition shall be determined, the election ordered and conducted, and the result declared, generally as provided by section 3 of this act, in so far as the provisions thereof are applicable."

On February 3, 1915, the plaintiff and 6099 other petitioners filed with the city clerk a petition with their signatures attached, seeking that such election be called. The city clerk examined the petition and found that of the total number of petitioners only 2290 were registered, and as the total number of registered voters in Topeka at that time was 16,978, the qualified petitioners did not amount to the twenty-five per centum fixed by the statute to set in motion this election machinery. The plaintiff demanded a return of the petition, and this was refused. Some time later, he and others filed another petition, which for the purposes of this case may be considered as an amendment to the original petition, although we need not decide that point, which second petition contained 1679 signatures. That petition taken separately or as an amendment to the original and the number of names on both petitions totaled did not contain twenty-five per centum of the registered voters of the city, and the city clerk made his report to the mayor and commissioners accordingly, and they declined to call the election.

Plaintiff again demanded the return of the petitions and this was again refused. Hence this lawsuit.

Only one question is involved. Is it necessary that the petitioners under section 1241 of the General Statutes of 1909 be registered voters? The closing language of that section provides that the sufficiency of the petition shall be determined as provided in section 3 of the same act so far as applicable. It is apparent that the figure "3" is a misnomer. Section 3 has nothing to say about petitions or elections. It relates to oaths of office, salaries of mayor and commissioners and the time to be devoted to their duties. (Laws 1909, ch. 74, § 3, Gen Stat. 1909, § 1231.) The original act relating to commission government in cities of the first class was chapter 114 of the Laws of 1907. It did not provide for the recall of city officers nor for the abandonment of commission government. In 1909 certain amendments were made to the act of 1907 (Laws...