State ex rel. Benham v. Cheever, 2591
| Decision Date | 19 May 1953 |
| Docket Number | No. 2591,2591 |
| Citation | 71 Wyo. 303,257 P.2d 337 |
| Parties | STATE ex rel. BENHAM et al. v. CHEEVER, Mayor. |
| Court | Wyoming Supreme Court |
William A. Riner, Jr., and Allen A. Pearson, Cheyenne, for appellants.
A. Joseph Williams, Cheyenne, for respondent.
Before BLUME, C. J., HARNSBERGER, J., and PARKER, District Judge.
This is a mandamus proceeding brought by the State of Wyoming on the relation of William Benham, Floyd Holland and John L. Simmons, petitioners, against R. E. Cheever, Mayor of the City of Cheyenne, to compel him to call an election in which the voters would determine whether the City of Cheyenne should adopt the manager form of government. Messrs. Benham, Holland and Simmons made the usual requisite allegations in mandamus cases and in addition set forth: that they and other residents and qualified electors of the City of Cheyenne, totalling 1,739, signed petitions under the provisions of Chapter 29, Article 7, W.C.S.1945, calling for a submission to the voters of that city of the question of adopting the City Manager form of government; that they presented their petitions to Mayor Cheever on August 5, 1952, and that he unlawfully failed, neglected and refused to issue a proclamation calling and setting a date for the special election. In his answer Mayor Cheever admitted that Messrs. Benham, Holland and Simmons were residents and qualified electors of the City of Cheyenne; that they and other qualified electors had prepared and submitted a petition; that there were 13,035 registered voters in the City of Cheyenne; that a petition was filed by petitioners on August 5, 1952; and he denied other allegations and alleged, as a separate defense, that the law relating to City Managers was void and inoperative because of its failure to specify certain time and manner of election and the terms of councilmen.
Section 29-702, W.C.S.1945, the principal statute under consideration, reads as follows:
* * *'
On the trial of the case several double sheets of 'Petitions for Manager Form of Government' were offered in evidence. The comments and discussions of court and counsel regarding this evidence are somewhat indefinite and ambiguous. One petition (Exhibit 1-B), containing three names, was rejected by the trial court because the circulator had not sworn to it, but the other petitions were admitted without definite objection and substantiating reason. The apparent views of Mayor Ceever's counsel is well summarized in the statement of Mr. Williams at page 22 of the record in which he states: 'Now, Your Honor, there is no objection, generally, to receiving this petition (apparently all the copies of the 'Petition for City Manager Form of Government' except 1-B) as being the petition which was filed, so long as it is understood that the mere receiving of this petition itself does not establish the validity of the petition.' There was no objection to the 'petition' (or petitions) on grounds of improper identification or inadequate foundation for admission. After certain testimony as to various matters relating to the 'Petition', Mayor Cheever was called for cross-examination and admitted having received Exhibit 1 on August 5, 1952. He was asked if he intended and had announced that he would call an election on November 4th, and, over the objection of his counsel, said that he would if it were possible to do so, but he admitted that no proclamation had been issued at that time. Later, there was unchallenged testimony by the County Clerk of Laramie County, Wyoming, that the number of registered voters in Cheyenne, Wyoming, on August 5, 1952, was 13, 733.
At the close of appellants' case, respondent apparently moved to dismiss and the court, finding that petitioners had 'failed to establish the petition filed by petitioners with the City Clerk of the City of Cheyenne complies with the requirements of the laws of the State of Wyoming pertaining to the adoption of City Manager government,' sustained respondent's motion and dismissed the suit. From that order this appeal has been brought.
It appears that the second defense pleaded by Mayor Cheever, alleging the City Manager law to be void and invalid because of its inadequacies and failure to set out times, dates, etc., is not an issue herein, since this phase of the case was not considered by the trial court at the time of the presentation of the motion. Counsel for both appellant and respondent apparently concede in their briefs that there is one question to be decided by this court, viz.: 'Is a 'petition' apparently drafted under Chapter 29, Article 7, W.C.S.1945, bearing the names of persons purporting to be electors of a city and being sworn to by the circulator thereof under oath that the 'signatures appended * * * were made in his presence and * * * are genuine signatures of the persons whose names they purport to be,' if such petition has been received in evidence by the trial court, prima facie sufficient to show to the Court that the instrument is what it purported to be?'
A similar question was presented to the court in the case of State ex rel. Keefe v. McInerney, 63 Wyo. 280, 182 P.2d 28, another mandamus proceeding seeking to compel the Mayor of Cheyenne to call an election on the question of the city's adopting the city manager form of government. In the McInerney case, the court generally discussed the situation there, citing some cases that hold petitions such as those in the instant case to be prima facie sufficient, unless the contrary is shown, and, on the other hand, some cases which hold that to sustain the findings and judgment in the absence of a statute, it must affirmatively appear that the petition was signed by a requisite number of qualified voters. Most of the cases to which our attention was directed by counsel in the instant case were presented in the McInerney case and considered by Judge Blume before he pointed out that:
(3) The determination of the number of qualified electors on such a petition is not a 'herculean' task under the circumstances.
This court in the McInerney case did not point out, as it probably would have, if the point had been in issue, that the Sarlls v. State, ex rel. Trimble, 201 Ind. 88, 166 N.E. 270, 67 A.L.R. 718, on which respondent herein relies exclusively, was determined on the basis of a statute, Section 10190 of the Burns' Annotated Statutes of 1926 of Indiana. That Indiana statute provides in part:
'* * * Within five days after any such petition is filed, the clerk shall complete an examination thereof to determine whether it is signed by a sufficient number of qualified electors, and he shall certify the result of his examination to the legislative...
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