State v. Deatherage, 6021.

• Decision Date: 28 September 1938
• Docket Number: No. 6021.,6021.
• Citation: 120 S.W.2d 193
• Parties: STATE ex rel. ALLMAN et al. v. DEATHERAGE et al.
• Court: Missouri Court of Appeals

120 S.W.2d 193

STATE ex rel. ALLMAN et al. v. DEATHERAGE et al.

No. 6021.

Springfield Court of Appeals. Missouri.

September 28, 1938.

"Not to be published in State Reports."

Original mandamus proceeding by the State, at the relation of R. N. Allman and others, against A. L. Deatherage and others, Judges of the County Court of Shannon County, to compel submission to the electorate question of removal of the county seat.

Writ granted.

T. W. Mesara, of Thayer, and C. H. Jackson, of Moutain Grove, for relators.

Wm. P. Elmer, of Salem, for respondents.

ALLEN, Presiding Judge.

This is an original proceeding in mandamus in which it is sought to compel the judges of the county court of Shannon County to submit to the electorate of Shannon County at the next general election, to be held on November 8, 1938, the question of whether or not the county seat should be removed from Eminence to Winona.

The statute with which the relators claim to have complied and under which they claim the county court is bound to hold an election is as follows:

"Whenever one-fourth of the voters of any county shall petition the county court for a removal of the seat of justice of such county to any other designated place, the court shall make an order directing that the proposition to remove such seat of justice to the place named in the petition be submitted to the qualified voters of the county at the next general election to be held therein, and shall also order that public notice be given such proposed removal, by publication thereof in some newspaper printed in the English language in said county, if any such there shall be, and also by directing the sheriff of said county to put up, in handbill form, printed copies of such order, in not less than three of the most public places in each township in said county, not less than thirty days before the election at which such proposition is to be voted upon, all of which notices shall be published and continued, so far as the circumstances will permit, up to the day of such election." Section 12073, R.S.Mo. 1929, Mo.St.Ann. § 12073, p. 6414.

The relators in their petition for a writ of mandamus state that they are taxpayers, owning real and personal property in Shannon County; that the respondents are the presiding judge and the associate judges of the county court of Shannon County. They allege that while the county court of Shannon County was in session that more than one-fourth of the qualified voters of Shannon County, namely, 1518 qualified voters, petitioned the county court for removal of the county seat and seat of justice from Eminence to Winona, and asked that the proposition be submitted to the voters at the next general election, in compliance with the above statute. The petition was filed with the clerk of the county court of Shannon County during the month of June, and remained on file until August 8, 1938 when the county court was in session and when it is alleged that the court arbitrarily and capriciously rejected and refused the petition and made a record showing that the petition was voted on by the court and rejected.

Upon the filing of the petition this court issued its alternative writ of mandamus on the 19th day of August, 1938, that being the date upon which the petition was filed. The presiding judge of the county court and one of the associate judges as respondents, after the writ was served on them on August 22nd, made a return or answer to the alternative writ in which they admit that the relators were residents and taxpayers of Shannon County and that the respondents are judges of the county court and that a petition was presented to the county court requesting it to hold an election with reference to the removal of the county seat and admit that the petition was rejected.

The answer of these two judges denies, however, that a petition signed by more than one-fourth of the qualified voters of Shannon County, petitioning for the removal of the seat of justice from Eminence to Winona, was presented to the court. Respondents then state that on August 8, 1938, their court was in session and that a petition had been filed which contained various names, who purported according to the petition, to be one-fourth of the qualified voters of the county and that the court was in session on that date for the purpose of passing on the petition and that the relators in this proceeding were present in court and the court called upon them to present any evidence they desired to offer in support of the petition to show that it was truly and legally signed by the persons whose names appeared thereon and to show that the names signed thereon were legal, qualified voters and that such number of them had legally signed the petition, but that the relators refused to make any such proof, stating that the relators stood on the petition as presented and requested the court to call the election and at that step of the proceedings the petition was rejected.

The respondents then state that the signatures on the petition appeared to have been procured by various circulators, that some of the circulators and the names on the petition were known to the repondents but that a great many of them were not. Respondents then allege that they had no knowledge as to whether or not the petition had been actually circulated and signed or that the...