State ex rel. Patterson v. Tucker

Decision Date28 January 1975
Docket NumberNo. 9774,9774
Citation519 S.W.2d 22
PartiesSTATE of Missouri ex rel. Dan PATTERSON, Relator-Appellant, v. T. H. TUCKER et al., Respondents.
CourtMissouri Court of Appeals

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 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 ex rel. Continental Oil Co. v. Waddill, Mo., 318 S.W.2d 281, 288(8).

Accordingly, it is necessary to determine whether it was the legal duty of respondents to perform the acts enumerated in Patterson's prayer and in the alternative writ.

Bunker is a city of the fourth class, a fact conceded by the parties and one of which this court takes judicial notice. § 79.010 V.A.M.S. Shelby County R--IV School District v. Herman, 392 S.W.2d 609, 611(3) (Mo.1965).

§ 79.030 V.A.M.S. requires, with exceptions not here applicable, that the city elections in Bunker be held under the provisions of Chapter 111 RSMo 1949. § 79.030 also provides that 'all duties specified in the state election laws to be performed by the county clerk shall be performed by the city clerk in the city elections.'

§ 111.621 V.A.M.S., in pertinent part, and with an exception not here applicable, provides: 'The county clerk shall, within five days after the close of each election, select one person from each of the two political parties casting the highest number of votes at the last preceding general election to assist him in examining and counting the votes given to each candidate, and give to those county candidates having the highest number of votes certificates of election.' 4

By the plain language of § 79.030 V.A.M.S. it was the duty of the city clerk of Bunker, and not the duty of respondents, in the city election to examine and count the votes given to each candidate (with the assistants described), and to give certificates of election to those candidates, including Patterson, having the highest number of votes. Mandamus will not issue to require the respondents to perform those duties which the statute imposed upon the city clerk alone.

However, the record reflects that Bunker has a city ordinance reading as follows: 'It shall be the duty of the Mayor and the Board of Aldermen to meet within three days after an election and cast up the vote and issue to the parties receiving the highest number of votes for any office a commission or certificate of election.' Ordinance No. 84, § 10.

It is obvious that Ordinance No. 84, § 10, seeks to transfer to the mayor and the board of aldermen of Bunker duties which § 79.030 V.A.M.S. imposed upon the city clerk. To say the least, the validity of Ordinance No. 84, § 10 is doubtful. 5 But even if Ordinance No. 84, § 10 is valid, relator's case fails because he failed to sue all of the persons upon whom that ordinance sought to place the duty of casting up the vote and issuing to the victorious candidates their certificates of election.

The ordinance placed those duties upon 'the mayor and board of aldermen.' We need not determine whether 'the board of aldermen' was a suable entity because, if such it was, it was not sued. If the ordinance is to be given effect, and the board of aldermen was not a suable entity, the action would lie against the mayor (in this case the acting president of the board of aldermen, § 79.100 V.A.M.S.) and the members of the board of aldermen.

At the time this action was instituted, one member of the board of aldermen of Bunker was Curtis Nash. According to Patterson's petition, 'Curtis Nash is the only alderman who was and is now, willing to perform the above function in allowing relator to assume the position of Mayor of the City of Bunker.' The pleading filed by respondents denied that allegation. The attitude of Alderman Nash, whatever that attitude may be, does not remedy the defect occasioned by his non-joinder.

In State v. Olenhouse, 324 Mo. 49, 23 S.W.2d 83, 86(2, 3) (Mo. banc 1929), the following language appears:

'Relator is not entitled to the relief granted by this writ. In the first place, the county court, and not the...

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