State, ex rel. Topping v. Houston

• Decision Date: 17 October 1913
• Docket Number: 18,157
• Citation: 143 N.W. 796,94 Neb. 445
• Parties: STATE, EX REL. PAUL S. TOPPING, APPELLEE, v. JAMES D. HOUSTON ET AL., APPELLANTS
• Court: Nebraska Supreme Court

143 N.W. 796

94 Neb. 445

STATE, EX REL. PAUL S. TOPPING, APPELLEE, v. JAMES D. HOUSTON ET AL., APPELLANTS

No. 18,157

Supreme Court of Nebraska

October 17, 1913

APPEAL from the district court for Otoe county: HARVEY D. TRAVIS JUDGE. Affirmed.

AFFIRMED.

Andrew P. Moran and John C. Watson, for appellants.

O. G Leidigh and Paul S. Topping, contra.

OPINION

LETTON, J.

This is an appeal from the allowance of a peremptory writ of mandamus commanding the respondents James D. Houston, James A. Richardson, and Robert E. Hawley, members of the city council of Nebraska City, to convene as such city council within ten days and to order an election to be held on a date then fixed for "the purpose of submitting to the electors of said city the proposition of recalling and removing said James D. Houston, present mayor and member of the council of said city, and electing as his successor thereto at such election Paul S. Topping, a legal voter of said city."

In January, 1912, the city of Nebraska City adopted the commission plan of government. The respondents were in April of that year elected as mayor and councilmen, respectively, their terms of office expiring April, 1914. On the 10th day of May, 1913, there was filed with the city clerk of Nebraska City a petition for the recall of Mr. Houston. The city clerk, as provided by the statute, made an examination of the names signed to the petition and certified that he had "carefully examined the names signed to the attached petition, being a petition for the recall of Mayor Houston, enough of them being legal voters equal to 30 per cent. of the highest vote cast at the general election of Nebraska City, held the 2d day of April, 1912." The city council refused to call the election, for the reasons that the petition for the recall and the certificate of the city clerk thereto were not sufficient. Whereupon relator brought this action praying for a writ of mandamus. Objection was made to the issuance of the writ by Andrew P. Moran as amicus curiae, which was overruled. A demurrer was then filed, which was also overruled. Afterwards an amended answer was filed, upon which the case was tried, and after a hearing the writ was allowed to issue.

The respondents make eight assignments of error: First, that the court erred in not sustaining the objections; second, that it erred in not sustaining the demurrer; the third and remaining assignments may be grouped, and in substance amount to the complaint that the court erred in finding the issues as it did and granting the peremptory writ. Applying the rule that this court will ordinarily consider only the points argued, we omit reference to several of the errors assigned.

There are really only two points presented for our consideration: First, did the petition contain the requisite number of names? and, second, did it contain a general statement of the grounds upon which the removal is sought? If the number of qualified signers required by the statute appended their names thereto, and if it contained a general statement of the grounds upon which the removal is sought, the city council had no discretion in the premises, but it became its duty under the provisions of the statute to call an election within the time specified in the statute.

The inquiry as to whether the petition contains a sufficient number of names must be determined by the language of the statute. Section 36, art. III, ch. 14a, Comp. St. 1911, provides: "The procedure to accomplish the removal of any incumbent of such office shall be as follows: A petition signed by such electors equal in number to at least thirty per centum of the highest vote cast at the last preceding general city election, demanding an election of a successor to the person sought to be removed and naming the candidate or candidates proposed for election to succeed him, shall be filed with the city clerk, which petition shall contain a general statement of the grounds upon which the removal is sought. Within ten days from the date of filing such petition, the city clerk shall examine it and from the voters' register, if the petition be filed in any city where registration laws are in force, or, if not, then from such source as may be available to such clerk, ascertain whether or not said petition is signed by the requisite number of qualified electors, and, if necessary, the council shall allow such clerk extra help for that purpose, and the clerk shall attach to said petition his certificate showing the result of such examination, and if the clerk's certificate to such petition shows that it is insufficient in point of numbers signed, it may be amended within ten days from the date of such clerk's certificate by the filing of a supplemental petition signed and sworn to as in the case of the original petition, and the clerk shall, within ten days after such supplemental petition be filed, make a like examination of the supplemental petition, and if the certificate shall show the supplemental petition, together with the original petition, to contain the requisite number of signatures, the clerk shall submit such original petition, and supplement, together with his certificates, without delay, to the council, and the council shall order and fix, without delay, a date for holding an election, which date shall not be less than thirty nor more than sixty days from the date of the clerk's certificate to the council showing the petition sufficient."

By these provisions the clerk is made the custodian of the authority to determine the sufficiency of the petition. The general rule is that, where any officer or board is vested with authority to determine a question concerned with the administration of his or its duties, his or its decision, if made in good faith, is decisive of the point, in the absence of fraud or mistake. Smiley v. Sampson, 1 Neb. 56; Tyson v. Washington County, 78 Neb. 211, 110 N.W. 634. We have so held with relation to the action of the board of county commissioners in a number of matters where the statute makes that the deciding body. Dodge County v. Acom, 61 Neb. 376, 85 N.W. 292; Andrews v. Lillian Irrigation District, 66 Neb. 461, 97 N.W. 336; Campbell v. Youngson, 80 Neb. 322, 114 N.W. 415; Lancaster County v. Lincoln Auditorium Ass'n, 87 Neb. 87, 127 N.W. 226. And we see no reason why the same doctrine does not apply with regard to the action of a city clerk in determining the sufficiency of such a petition. This seems to be the view taken respecting like provisions in other recall statutes. Good v. Common Council, 5 Cal.App. 265, 90 P. 44; Locher v. Walsh, 17 Cal.App. 727, 121 P. 712; Davenport v. City of Los Angeles, 146 Cal. 508, 80 P. 684.

In the present case the city clerk was examined and cross-examined as to his method of ascertaining that the persons signing the petition were qualified electors of the city. Objections were made to some of the questions propounded upon cross-examination, which under the state of the pleadings we think were rightly sustained. There is neither pleading nor proof that any persons whose names are signed to the petition were not qualified electors or that any fraud had been perpetrated or mistake made by the city clerk in making his determination. There can be no question but that when the petition was presented with the clerk's certificate attached, showing that it had been signed by the requisite number of qualified electors, and no fraud, bad faith or mistake appeared, it was the duty of the city council to call the election; provided, of course, that the petition was sufficient in other respects.

This brings us to the second point in the case. The statute requires that the petition "shall contain a general statement of the grounds upon which the removal is sought." The grounds stated in the petition are: "Said Houston, in attempting to discharge the duties and trusts of said office, is grossly extravagant with the public funds of said city; manifestly partial, prejudicial and malevolent in exercising the prerogatives of said office; and because of his nonfeasance and malexecution of the duties of said office; and because of his obvious incompatibility of temperament to discharge the duties of said office economically and to the best interest of the citizens and tax-payers of said city of Nebraska City." The respondents assert that the petition fails to give a general statement of the grounds, as the statute requires, upon which the removal is sought, but only states conclusions of law. As to the first ground alleged, it is said that it was impossible that the mayor could spend money extravagantly in his individual capacity; that appropriations can only be made by a majority of the council; that some other member must have voted with him in order to permit the careless and extravagant expenditure of money; and that as a natural consequence the petition in this respect did not set forth sufficient grounds for recall.

As to the other grounds set forth, it is said that they merely state conclusions of law, and that the relator should be held to a strict compliance with the rules of pleading because he is attempting to remove and recall a duly elected officer of a municipality and place himself in that office for the unexpired term, and, also, that the charges...