State v. Dunn
| Decision Date | 25 March 1925 |
| Docket Number | 26,289 |
| Citation | 235 P. 132,118 Kan. 184 |
| Parties | THE STATE OF KANSAS, ex rel. WALTER A. BLAKE, County Attorney, Plaintiff, v. FRANK L. DUNN et al., Defendants |
| Court | Kansas Supreme Court |
Decided January, 1925.
Original proceeding in mandamus.
Judgment entered.
SYLLABUS BY THE COURT.
MUNICIPAL CORPORATIONS--Petition for Abandonment of Manager Plan--Number and Qualification of Petitioners. In a mandamus proceeding to compel the board of commissioners of a city of the first class, having more than 80,000 inhabitants and operating under the city manager form of government, to call an election to submit the question of abandoning the city manager form of government and substituting in its place the mayor and councilmen form of government, upon petition therefor as provided in R. S. 12-1019, it is held:
1. That "qualified electors" who may petition are those only who possess the constitutional qualifications of electors and who are properly registered.
2. In determining the number of petitioners necessary the total number to be considered is the total number of electors properly registered.
3. In determining who were properly registered in January, 1925, it was proper to strike from the registration books the names of persons who had previously registered but who did not vote at the general election in November, 1924.
4. It was proper for the board of commissioners to have the city clerk, with such additional clerical force as was necessary, check the names on the petition with the registration books of the city, to see if the petition contained the names of twenty-five per cent of the qualified electors of the city.
5. In so checking the names it was proper to exclude, or not to count: (a) names of persons on the petition that were not on the registration books; (b) names on the petition with a street address different from that on the registration books; names of (c) men and of (d) women who did not sign the petition as registered, giving Christian names, instead of initials, or vice versa, in the absence of evidence of identity offered by petitioners; and (e) names of women on the petition using the prefix "Mrs." followed by initials or masculine Christian names, which did not appear on the registration books, in the absence of evidence of identity offered by petitioners.
6. The statute contemplates that each petitioner personally sign the petition.
7. When the petition consists of several sheets, each sheet must be verified by a signer of that sheet.
W. A. Blake, John W. Adams, E. L. Foulke, William J. Wertz, George McGill, James A. Conly, George L. Adams, E. L. Wheeler, and James Nash, all of Wichita, for the plaintiff.
Robert C. Foulston, and George Siefkin, both of Wichita, for the defendants.
This is an original proceeding in mandamus to compel the commissioners of the city of Wichita to call an election to submit the question of abandoning the present city manager form of government and substituting in its place the mayor and councilmen form of government. The parties have agreed in part upon the facts, and submitted evidence as to matters which could not be agreed upon. From this it appears that the city of Wichita is operating under the city manager form of government provided for by chapter 86 of the Laws of 1917 chapter 107 of the Laws of 1919 (R. S. 12-1001 to 12-1020). Proceeding under R. S. 12-1019, on January 19, 1925, W. H. Boston and others caused to be filed with the city clerk a petition composed of 298 sheets containing 9,652 names and purported signatures of persons representing themselves to be qualified electors of the city, praying such election. The city clerk on the same day presented the petition to the board of commissioners of the city, who instructed the city clerk forthwith to begin the checking of the names appearing upon the petition as filed against the registration books of the city, and report as soon as possible to the board of commissioners. The city clerk was authorized to employ necessary assistants to check the petition as speedily as possible. On January 31 the city clerk reported to the board of commissioners that he had carefully checked the petition against the registration books as the same appeared on January 19, 1925, and found that there were 6,642 names of qualified electors appearing on the petition whose names corresponded with the registration books. The city clerk in arriving at his report excluded and did not count:
The city clerk also reported that it appeared from the petition there were many names of different persons apparently signed by one person, and from which it was apparent that some of the proposed names were not the true signatures of the persons whose names they appeared to be, but that he had not made any deduction by reason of that fact. He also reported that the election commissioner had stricken from the registration books the names of all electors who had not voted at the general election of 1924, although they had been registered subsequent to January 1, 1924. Upon the report of the city clerk being considered by the board of commissioners, the petitions were deemed insufficient, and upon motion it was determined "that no election be called upon these petitions at this time."
Plaintiff argues that the board of commissioners of the city had nothing to do when the petition was presented but to call the election; that the petition should have been taken at what it purported to be and that the board of commissioners had no authority either to investigate the names on the petition, or to have the city clerk do so. There is no merit in this contention. The statute requires the persons petitioning to be qualified electors. The board of commissioners had no authority to call such an election unless the petition contained the names of twenty-five per cent of the qualified electors of the city. Hence they were bound to examine it to see that it did so before the election was called. Complaint is made that the city commissioners referred the matter to the city clerk, contending that under section R. S. 12-1019 the board of commissioners should pass upon it themselves. Even if that construction were correct, the board of commissioners might employ a clerical force to do the work, and if they chose to commit that to the city clerk, the petitioners could not complain. In this case the board of commissioners did make the decision upon the matter after receiving the report of the city clerk.
Plaintiff contends that the petition was sufficient under the statute, and that the city clerk had no authority to check the same as against the registration books, nor to exclude from the counting of legal petitioners the names of the persons who were excluded. The statute provides:
"Such an election shall be called by the governing board upon the presentation of a petition to the governing board of said city, signed by not less than twenty-five per cent of the qualified electors of such city, praying for such election." (R. S. 12-1019.)
The first question is, Who are "qualified electors" within the meaning of the statute? It is well settled in this state that the legislature may require registration as a prerequisite to the right to vote. ( The State v. Butts, 31 Kan. 537, 2 P. 618.) In the cities where registration is required, an elector is a person having the constitutional qualifications of an elector and who is duly and properly registered. (Coney v. City of Topeka, 96 Kan. 46, 149 P. 689.) In Clayton v. Hill City, 111 Kan. 595, 207 P. 770, the term "qualified electors" was construed to mean persons entitled to vote. Hence the words "qualified electors" in this statute means persons who have the constitutional (Const., art. 5, §§ 1, 4) qualifications of an elector and who are duly and properly registered. Other persons are not authorized to petition for such an election.
The next question is, "Twenty-five per cent" of what number--the total number of votes cast at the last city election (which was 9,427), or the total number of votes cast at the last general election (which was 30,917), or the total number of qualified electors as shown by the registration books (which was 31,327), or the whole number of persons in the city having the constitutional qualifications of voters whether they were registered or not? This could only be determined by taking a census of the voters, which was not done, but there was testimony that the number is at least 40,000. It will not be necessary to discuss separately the arguments for and against these several theories. When we determine, as we have, that the term "qualified electors" in the statute means persons otherwise qualified as electors who are properly registered, it necessarily follows that the total number of persons to be considered is the total number whose names are properly upon the registration books. The statute fixes its own measure; the only person competent to petition are those whose names are properly on the...
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