State ex rel. Patterson v. Tucker, No. 9774

• Court: Missouri Court of Appeals
• Writing for the Court: Before HOGAN; FLANIGAN
• Citation: 519 S.W.2d 22
• Docket Number: No. 9774
• Decision Date: 28 January 1975
• Parties: STATE of Missouri ex rel. Dan PATTERSON, Relator-Appellant, v. T. H. TUCKER et al., Respondents.

Page 22

519 S.W.2d 22 STATE of Missouri ex rel. Dan PATTERSON, Relator-Appellant,
v.
T. H. TUCKER et al., Respondents. No. 9774. Missouri Court of Appeals, Springfield District. Jan. 28, 1975.

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John L. Woodward, Steelville, for relator-appellant.

Steelman & Wilkerson, Jerry L. Wilkerson, Salem, for respondents.

Before HOGAN, C.J., and TITUS, BILLINGS and FLANIGAN, JJ.

FLANIGAN, Judge.

Mandamus. On April 2, 1974, a general election was held in the city of Bunker, Missouri, a city of the fourth class, and Dan Patterson received the highest number of votes for the office of mayor. On the date of the election, respondents T. H. Tucker and Glen B. Sapaugh were two of the four aldermen of the city. The other two aldermen were Wendell Conway and Ray R. Davis. On April 3, 1974, the board of aldermen notified Patterson, by letter, 'that according to § 129.420 of the Missouri Revised Statutes 1969, . . . you are not eligible to hold public office. . . . Therefore the board of aldermen cannot swear you in for the office of Mayor.' On April 5, 1974, Lloyd Cottrell and Curtis Nash were sworn in as aldermen, replacing Conway and Davis. On that date, according to Patterson's petition, 'The members of the Board of Aldermen again refused to recognize the relator as Mayor of the City of Bunker and refused to issue a Certificate of Election to him and permit him to take the oath of that office.'

On April 8, 1974, Patterson instituted this mandamus action against Tucker, Sapaugh and Cottrell. Those three men were respondents in the trial court and are the respondents on this appeal. Sapaugh and Conway were sued in their capacity as aldermen and Tucker was sued in his capacity as alderman and also as acting mayor of Bunker. ¹ Curtis Nash, the fourth member of the board of aldermen, was not joined as a respondent in the trial court and is not a party to this action, a fact to be treated later in this opinion.

Patterson's petition sought an order commanding the three respondents to 'immediately convene, canvass the returns, and cause a Certificate of Election to be issued and allow relator to take and subscribe to the oath of his office as Mayor,' together with other general relief.

On April 9, 1974, the trial court issued to the respondents its alternative writ of mandamus, commanding them to comply with the prayer of Patterson's petition by April 16, or to appear on April 20 to show cause for their refusal so to do. Although the return of respondents purported to

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plead ² to the alternative writ, in fact it pleaded to Patterson's petition and admitted portions thereof and denied the rest. The return also contained the following: 'That further answering, as an affirmative defense, Relator is not eligible for office by reason of his defalcation in office pursuant to Section 15, Ordinance Number 84, ³ of the Laws and Ordinances of The City of Bunker.'

At the hearing on the merits, the trial court, having heard the evidence, resolved the issues in favor of the respondents and entered its 'Order and Judgment' dismissing the alternative writ.

Patterson appeals from that judgment.

On this appeal the concern of this court is whether or not the trial court reached a correct result. We need not determine what reasons may have guided the trial court to its judgment or whether those reasons were right or wrong. White v. Smith, 440 S.W.2d 497, 512(21) (Mo.App.1969); State ex rel. Pope v. Lisle, 469 S.W.2d 841, 842(1) (Mo.App.1971). Mandamus will not issue in doubtful cases. State ex rel. Burke v. Ross, 420 S.W.2d 365, 368(10) (Mo.App.1967). A litigant seeking a writ of mandamus must show that he is possessed of a clear and unequivocal right to the remedy. State ex rel. Christian v. Lawry, 405 S.W.2d, 729, 731(7) (Mo.App.1966).

Mandamus will lie to compel the board of canvassers or other proper officials to discharge their ministerial duties in canvassing votes or returns. State ex rel. Donnell v. Osburn, 347 Mo. 469, 147 S.W.2d 1065 (Mo. banc 1941). '(T)he duty of casting up the vote certified by the returns and ascertaining who received the highest vote is a purely ministerial duty, and being such the canvassers have no right to go behind the returns.' State ex rel. Donnell v. Osburn, supra, 147 S.W.2d 1065, 1069(10). See also State v. Parks, 409 S.W.2d 199, 206 (Mo.App.1966). The issuance of a certificate of election is a ministerial act whicm may be compelled by mandamus. Barnes v. Gottschalk, 3 Mo.App. 111, 120(6) (1876), 29 C.J.S. Elections § 240, p. 669. See also 26 Am.Jur.2d Elections § 307, p. 132.

However, "(t)he purpose of the extraordinary writ of mandamus is to compel the performance of a ministerial duty which one charged with the duty has refused to perform. The writ can only be issued to compel a party to act when it was his duty to act without it. It confers upon the party against whom it may be issued no new authority, and from its very nature can confer none." State v. Public School Retirement System, 364 Mo. 395, 262 S.W.2d 569, 574(3, 4).

'( A) litigant seeking relief by mandamus must show that he has a clear, unequivocal, specific right to have performed the thing demanded, and that the defendant or respondent has a corresponding duty to perform the action sought.' (Emphasis added). Powell v. City of Creve Coeur, 452 S.W.2d 258, 263(3) (Mo.App.1970); see also State...