State v. Carothers

• Decision Date: 27 September 1919
• Docket Number: No. 21359.,21359.
• Citation: 214 S.W. 857
• Parties: STATE ex rel. CROW v. CAROTHERS, City Clerk.
• Court: Missouri Supreme Court

214 S.W. 857

STATE ex rel. CROW v. CAROTHERS, City Clerk.

No. 21359.

Supreme Court of Missouri, Division No. 1.

September 27, 1919.

Appeal from Circuit Court, Adair County; James A. Cooley, Judge.

Mandamus by the State of Missouri, at the relation of Willis I. Crow, against J. C. Carothers, Clerk of the City of Kirksville, Mo. Peremptory writ issued. Motion for new trial and in arrest overruled, and defendant appeals. Case transferred to Court of Appeals.

A. Doneghy, of Kirksville, for appellant.

W. F. Frank, of Kirksville, for respondent.

SMALL, C. I.

This was a proceeding in mandamus, instituted in the circuit court of Adair county, to compel the respondent, J. C. Carothers, city clerk of Kirksville, to submit certain petitions filed with him for the recall of O. M. Hutchinson, councilman at large of said city, to the city council of said city for action thereon. The alternative writ alleged, among other things, that said city was a city of the third class and had more than 3,000 and less than 12,000 population, and had elected to adopt the provisions of the act of the Forty-Seventh General Assembly of Missouri entitled "An act providing for an alternative form of government for cities of the third class," etc., approved March 28, 1913 (Laws 1913, p. 517). The proceeding was founded wholly upon said act.

The return alleged matters tending to show that said petitions for recall were defective in material respects, and did not comply with the provisions of said act. It further alleged that section 19 of said act, upon which the action was based, was in violation of certain enumerated sections of the Constitution of this state and of the United States.

The trial resulted in a finding for the relator and the granting of the peremptory writ. In his motions for a new trial and in arrest, appellant saved the constitutional points raised in his return. Said motions being overruled, he appealed to this court.

II. In this court appellant has filed two carefully prepared briefs, each containing an assignment of errors, points and authorities, and further argument; but he nowhere therein refers to any of the constitutional provisions invoked by his pleading in the court below, except in the argument in one of his briefs, where he says:

"While our statutes do not define or use the term `voters' register,' section 3 of article 8 of the Constitution does provide for a `list of voters,' it prescribes the making of a list which the court may well define as a `voters' register.' It says: `All elections by the people shall be by ballot; every ballot shall be numbered in the order in which it shall be received, and the number recorded by the election officers on the list of voters, opposite the name of the voter who presents the ballot.' List, register, poll and record, all mean one and the same thing, and, so, if the Constitution in describing pollbooks, has not described a `voters' register,' it would be a hairsplitting play of words to say what it did describe. And we are not overly bold when we say that the Legislature meant the pollbooks used at the last general municipal election when it said `voters' register.' It could not have meant registration books used to record the names of electors entitled to vote and who desiring to vote register, because the Constitution of this state prohibits such registration in all cities having less than 25,000 inhabitants. Section 5, art. 8, Constitution. And there is not a city of the third class, in this state, of 25,000 or more inhabitants, of which fact the court takes judicial notice. * * *

"But the Constitution and general laws of each and every state, in construing particular provisions of the statutes, must enter into and be taken into consideration. By section 8047, R. S. 1909, the common law is made a part of the laws of this state. By section 5 of article 14 of our Constitution, all officers, unless otherwise...