State ex rel. Voss v. Davis

• Citation: 418 S.W.2d 163
• Decision Date: 11 September 1967
• Docket Number: No. 52302,No. 1,52302,1
• Parties: STATE ex rel. Letha M. VOSS, Sarah L. Lucito, Maizie Francis Dorcy and Roberta E. Shortino, Respondents, v. Ilus W. DAVIS, Mayor et al., Appellants
• Court: United States State Supreme Court of Missouri

Page 163

418 S.W.2d 163

STATE ex rel. Letha M. VOSS, Sarah L. Lucito, Maizie Francis Dorcy and Roberta E. Shortino, Respondents, v. Ilus W. DAVIS, Mayor et al., Appellants.

No. 52302.

Supreme Court of Missouri, Division No. 1.

Sept. 11, 1967.

Charles C. Shafer, Jr., Kansas City, for respondent-relators.

R. Robert Cohn, John C. Thurlo, Kansas City, for respondents, Fred A. Murdock, Henry L. Mahley, Max W. Foust and Lowell L. Knipmeyer, Members of Bd. of Election Corms. for Kansas City, Jackson County.

Herbert C. Hoffman, City Counselor, Carrol C. Kennett, Assoc. City Counselor, Kansas City, for appellants.

SEILER, Judge.

The trial court, upon petition in mandamus by certain electors and taxpayers of Kansas City, ordered the city council to enact an ordinance submitting certain charter amendments to an election and if not done, ordered the Kansas City Board of Election Commissioners to proceed with the election as if the ordinance calling it had been passed, but stayed the effective date of the judgment until the appeal was decided. The city council appeals, contending the proposed charter amendments, which would set the terms of the elected officials of the city (including incumbents) at two years instead of the four presently provided, violate Art. VII, Sec. 12 of the 1945 constitution, V.A.M.S., that the proposed amendments conflict with other charter provisions, and that the petitions for said amendments were insufficient and could not be made sufficient by supplemental petitions.

The facts are stipulated. The proposed charter amendments to the Kansas City home rule charter, excluding portions relating to terms which have already expired and hence need not concern us, are these:

'Sec. 489. Terms of office to be two years. The terms of office of all elective officials, including the mayor, the councilmen and the judges of the municipal court, shall be two years, and until their successors are elected and have qualified.

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'The terms of office of officials elected at each biennial election after such 1965 election shall continue until ten o'clock in the forenoon of April 10th, two years after the date when they were elected and until their successors are elected and have qualified. This Section shall take effect immediately upon adoption.

'Sec. 490. Elections held every two years . . . (I)n the year 1967, and in each second year thereafter, a regular municipal election for the choice of all such municipal officers to be elected by the people shall be held on the last Tuesday in March. A primary election shall be held in the city, in each election precinct thereof on the fourth Tuesday preceding each regular municipal election. All candidates for office shall be nominated and all elections herein provided for shall be held in accordance with the provisions of Article XVI of this Charter, and the other election laws of this state applicable to elections held in this city not in conflict with this Section. This Section shall take effect immediately upon its adoption.'

Relators caused petitions for the charter amendments to be circulated and then filed 701 such petitions in the office of the board of election commissioners on April 1, 1965. The election board notified relators April 22, 1965 that the petitions were 2014 signatures short of the required 22,479 (10% of the total registered electors) and gave relators ten days to obtain supplemental petitions, which the relators proceeded to obtain and filed with the board May 1, 1965, in the form of an additional 165 sheets of petitions and signatures. The board on May 6, 1965, certified to the city council that the required number of signatures of registered voters in Kansas City had been obtained. The Council refused to pass an ordinance submitting to a vote of the people the propositions set forth in the proposed amendments.

We do not agree with the council's contention that the original petitions could not lawfully be supplemented within ten days as permitted by the election board. Neither Sec. 19 nor 20 of Art. VI of the 1945 constitution, although self-executing, State ex inf. Taylor ex rel. Kansas City v. North Kansas City, 360 Mo. 374, 228 S.W.2d 762, goes into detail as to the procedure to be followed in determining the sufficiency of a petition to amend a home rule charter. Although the two sections refer to 'petition', this word must be taken as having a collective meaning--numerous separate petitions rather than a single document, as the latter would be impossible where there were thousands of signatures involved. Sec. 20 provides the question of amendment shall be submitted on a petition signed by the requisite number of registered qualified electors filed with the body in charge of the city elections. It does not say when the door is closed on accumulating the required number or that all the petitions must be filed at the same time--only that when a petition signed by the requisite number is filed the question shall be submitted.

Sec. 19 provides the election body or official 'shall forthwith ¹ finally determine the sufficiency of the petition', but does not provide exactly what makes up the petition whose sufficiency is to be determined, aside from the fact it must be filed. In the matter of charter amendments by petition, as in initiative and referendum, the people are exercising power reserved to them and the provisions under which they proceed should be construed liberally to the end that their right to determine all proper questions by free and open elections shall be secure. 'Provisions reserving to the people the powers of initiative and referendum are given a liberal construction to effectuate the policy thereby adopted. Such provisions should be construed so as to make effective the reservation of power by the people', 28 Am.Jur., Initiative, Referendum and Recall, Sec. 6, p. 439. We should not apply the provisions of Secs. 19 and 20 relating to the sufficiency of petitions as though they were 'a rule in a checker game, where once your hand is off the man the move is final', but rather should apply them so as 'to give all who actually desire the passage of the proposed measure every opportunity to obtain the required number on a petition finally put up to the city council for action', Dagley v. McIndoe, 190 Mo.App. 166, 176 S.W. 243, 247. This is not a case where the number of signatures first obtained was so small as to make preposterous the expectation of obtaining sufficient additional signatures, ² or where the extension or period of time within which additional petitions were permitted was so long as to make stale the signatures on the petitions first filed. We see nothing unreasonable, against public policy, or violative of any constitutional provision in the board's allowing ten days in which to obtain additional signatures. Where there is a large metropolitan electorate as here, circulators of petitions acting with the utmost diligence and highest good faith can expect to sustain a significant but unpredictable attrition in the number of valid signatures obtained--signers of petitions may honestly be mistaken as to whether they are registered, their registration may have expired, they may have moved to a new address, there may be duplications of signatures, etc. By necessity of the circumstances of the case petitioners have no practical way to determine in advance whether they have obtained the necessary 10% of the qualified registered electorate. It would be unduly restrictive of a constitutional right to refuse those interested a reasonable opportunity to secure additional signatures where they were close to the mark on the first attempt. Otherwise the petitioners could be safe only if they 'make assurance double sure' by getting so many signatures there would be no chance of falling short, which would greatly and unjustifiably handicap the right of charter amendment by petition.

So we overrule the council's contention that the petitions were not properly filed and that the board acted illegally in receiving the additional petitions and in certifying the petitions to the council as sufficient.

As to the assignment the proposed amendments are unconstitutional: Respondents agree with relators' contention that under American law there is no vested or private property right in a public office, State ex rel. Henson v. Sheppard, 192 Mo. 497, 91 S.W. 477; State v. Ludwig, (Mo.Sup. banc) 322 S.W.2d 841, 847; McQuillin on Muncipal Corporations, Vol. 3, Sec. 12.117, p. 489; 16 C.J.S. Constitutional Law § 251, p. 1230, and concede that the terms of office of Kansas City elective officials may be shortened by a charter amendment, but contend this may not be made effective during their terms of office, citing State ex inf. Barrett ex rel. Bradshaw v. Hedrick, 294 Mo. 21, 241 S.W. 402, 411, as follows:

"A public office is a public trust;' it is a public agency solely for the good of the public, which, unless otherwise provided in the Constitution, may be abolished or regulated by statute. Nevertheless, one who has been elected or appointed to a public office has a right to exercise its functions and enjoy its emoluments during the term for which he was appointed or elected, unless sooner removed in accordance with the provisions of the law. Whoever undertakes to remove such a one must be able to put his finger on the law authorizing such action * * *' (emphasis by respondents).

The council contends Sec. 12, Art. VII, of the 1945 constitution ³ forbids what the proposed charter amendments call for and the city is under no duty to submit the same to the voters. ⁴ The parties have not cited a case directly in point and we have not been able to find one. 'There is no doubt of the power of the legislature which creates an office to abolish it or to change it, and the legislature may shorten or lengthen the term of the office itself, in the absence of constitutional inhibition', 43 Am.Jur., Public Officers, Sec. 151,...