The State ex rel. Westhues v. Sullivan

• Decision Date: 12 July 1920
• Parties: THE STATE ex rel. HENRY J. WESTHUES, Prosecuting Attorney; JOHN C. HALL and R. T. WOOD, Interveners, v. JOHN L. SULLIVAN, Secretary of State; FRANK W. McALLISTER, Attorney-General, and MAURICE J. CASSIDY et al., Interveners, Appellants
• Court: Missouri Supreme Court

224 S.W. 327

283 Mo. 546

THE STATE ex rel. HENRY J. WESTHUES, Prosecuting Attorney; JOHN C. HALL and R. T. WOOD, Interveners, v. JOHN L. SULLIVAN, Secretary of State; FRANK W. McALLISTER, Attorney-General, and MAURICE J. CASSIDY et al., Interveners, Appellants

Supreme Court of Missouri

July 12, 1920

Appeal from Cole Circuit Court. -- Hon. J. G. Slate, Judge.

Reversed.

Frank W. McAllister, Attorney-General, and C. P. LeMire, Assistant Attorney General, for appellants; John M. Atkinson, for intervening appellants.

(1) The court erred in not sustaining appellants' demurrer to relator's amended petition on the ground that said Henry J. Westhues, as Prosecuting Attorney of Cole County, has no legal authority in law to bring this action in the name of and on behalf of the State. Secs. 6750, 1007, 970, R. S 1909; State ex rel. v. Williams, 221 Mo. 261; State ex rel. v. Lamb, 237 Mo. 450, 454; State ex rel. v. Carter, 257 Mo. 78; State ex rel. v Metscham, 32 Or. 372; Allen v. State, 130 P 1115. (2) The court erred in not sustaining appellants' demurrer to relator's first amended petition on the ground that this action was prematurely brought, and that appellant, Frank W. McAllister, as Attorney-General, was improperly made a party defendant. Secs. 6750, 6751, R. S. 1909; State ex rel. v. Carter, 257 Mo. 78. (3) The court erred in sustaining the conclusions of law, as made by said master, that said Workmen's Compensation Act was not a subject to the referendum provisions of Section 57 of Article 4 of the Constitution and could not be referred. Sec. 1, Art. 4, Constitution of Oregon; State ex rel. v. Carter, 257 Mo. 68, 70, 72; Sec. 36, Art. 4, Constitution of Missouri; Kadderly v. Portland, 44 Ore. 147; Sears v. Multnomah County, 49 Ore. 45; Bennett Trust Co. v. Sengstacken, 58 Ore. 333; State ex rel. v. Moore, 103 Ark. 53; Harrison v. Hodges, 109 Ark. 477; In re Manefee, 22 Okla. 365; Norris v. Cross, 25 Okla. 287; Attorney-General v. Lindsay, 178 Mich. 524; State v. Meath, 84 Wash. 302; State v. Howell, 85 Wash. 281; State v. Clausen, 85 Wash. 260; In re Interrogatories by the Governor, 181 P. 199; State ex rel. v. Whisman, 36 S.D. 260, L. R. A. 1917D-1; State ex rel. v. Olcot, 67 Ore. 214; Berkis v. Lincoln Belt Co., 260 Ill. 450; In re Hoffman, 155 Cal. 248; McClure v. Nye, 22 Cal.App. 248; Rigdon v. San Diego, 30 Cal.App. 107; Riley v. Cariso, 27 Okla. 33; Simpson v. Gage, 195 Mich. 581. (4) The court erred in sustaining the findings of fact and conclusions of law of said master that the term "legal voter" as used in said Section 57 of Article 4 of the Constitution should be construed to mean "registered voter," and in admitting incompetent evidence and finding from such evidence that all referendum petitions in the 5th and 15th Congressional Districts were legally insufficient. Sec. 2, Art. 8, Constitution of Missouri; State ex rel. v. Olcott, 67 Ore. 220; Woodward v. Barbur, 59 Ore. 75; State ex rel. v. Mason, 153 Mo. 506; In re Herman, 96 N.Y.S. 144, 108 A.D. 335; Sec. 57, Article 4, Constitution of Missouri; Sections 1, 4, 6, Art. II, Constitution of New York. (5) The court erred in sustaining the findings of fact and conclusions of law of said master that Section 57 of Article 4 of the Constitution and Sec. 6749, R. S. 1909, should be construed to require all affidavits of circulators to all referendum petitions in the 11th and 12th Congressional districts to contain the additional statement in the affidavit of the circulator that all signers on said referendum petitions reside in each of said respective Congressional districts, and finding that under the evidence all of said referendum petitions in said 11th and 12th Congressional districts were not legally sufficient. Secs. 6747, 6748, 2737, 3738, R. S. 1909; Stealey v. Kansas City, 179 Mo. 407; State ex rel. v. Olcott, 62 Ore. 286; Porter v. Paving Co., 214 Mo. 10. (6) The court erred in sustaining the findings of fact and conclusions of law that signers of said referendum petitions in the 8th and 13th Congressional districts had a right to withdraw and did withdraw their names therefrom after same had been filed in the office of the Secretary of State and after the time had expired for filing said referendum petitions under the provisions of said Section 57 of Article 4 of the Constitution and while the temporary restraining order and temporary injunction were in full force and effect restraining defendant Sullivan from counting the names on said petitions. Chap. 59, R. S. 1909; Sec. 6750, 6751, R. S. 1909; State ex rel. v. Carter, 257 Mo. 75; Sedalia v. Montgomery, 227 Mo. 1; Norris v. Cross, 25 Okla. 287; State ex rel. Mohr v. Seattle, 59 Wash. 68; State ex rel. v. Wolf, 158 N.W. 79; State v. Gerhardt, 145 Ind. 439; Rutledge v. Marquette County, 160 Mich. 82; Koerber v. Ionia, 155 Mich. 677; Rutledge v. Marquette County, 155 Mich. 677; State ex rel. v. Gregory, 26 S.D. 13; Davis v. Cramer, 159 N.W. 887; Ogden City v. Armstrong, 168 U.S. 235; Dagley v. McIndoo, 190 Mo.App. 666. (7) The court erred in sustaining the findings of fact and conclusions of law of the master in holding that a person who had signed one of said referendum petitions in the 1st, 2nd, 8th, 9th and 15th Congessional districts could not thereafter legally administer an oath to a circulator of any other referendum petition in such district to refer said Workmen's Compensation Act, and that such referendum petitions were legally insufficient by reason thereof. Secs. 6749, 10178, R. S. 1909; State ex rel. v. Davis, 199 Mo.App. 447; Cross v. Estes, 43 Okla. 216; In re Initiative Petition No. 23, 35 Okla. 56; Thompson on Building Associations (2 Ed.), sec. 214, p. 439; Cooper v. Hamilton Assn., 97 Penn. 285, 33 L. R. A. 338.

Alroy S. Phillips, John C. Hall, Roy D. Williams, D. S. Calfee and Jesse McDonald for respondent and respondent-interveners.

(1) The facts concerning the authority of the Prosecuting Attorney to institute this suit in the name of the State appear on the face of the petition, and by pleading over and answering to the merits after their demurrers and motions on that ground were overruled, appellants and appellant-interveners waived such objection. Sec. 1800, 1804, R. S. 1909; Kellog v Malin, 62 Mo. 431; Richardson v. Pitts, 71 Mo. 130; Edmondson v. Phillips, 73 Mo. 60; Hudson v. Cahoon, 193 Mo. 553, 556; Hanson v. Neal, 215 Mo. 270, 277; Hubbard v. Slavens, 218 Mo. 616; State ex rel. v. Bright, 224 Mo. 523; Titus v. Development Co., 264 Mo. 239; Taber v. Wilson, 34 Mo.App. 94; Luecke v. Treadway, 45 Mo.App. 516; Billings v. Cal. Hirsch & Sons, 86 Mo.App. 231; Jones v. Railway, 89 Mo.App. 662; Duff v. Duff, 156 Mo.App. 258. (a) While there are authorities in which a private citizen brought, or was held to have the right to bring, such an injunction suit, the existence of such a right in a private citizen does not exclude the right of the State to maintain such action. Allen v. State, 14 Ariz. 458; Hammet v. Hughes, 104 Ark. 510, 149 S.W. 667; Barkley v. Poole, 102 Neb. 799, 169 N.W. 730; Barkley v. Poole, 173 N.W. 600. (b) There is a difference between the remedies of mandamus and injunction as applied to public officials. Mandamus compels the performance of a public duty and may be invoked by any citizen, but injunction prevents the performance of a public duty, and that is a sovereignty which may be invoked by the State alone. Case Note, 50 L. R. A. (N. S.) 214; Case Note, L. R. A. 1917-B, 30. (c) An initiative or referendum petition is an order for the holding of an election and only affects rights which are political in their nature. Only the State, and not a private citizen, may invoke the equitable remedy of injunction against public officials in a matter affecting rights which are political in their nature. And for this reason some courts have held that only the State, and not a private citizen, may sue to restrain the state officials from submitting a measure to a vote of the people. Sec. 6750, R. S. 1909; 22 Cyc. 757; State ex rel. v. Aloe, 152 Mo. 480; Friendly v. Olcott, 61 Ore. 581; State ex rel. v. Olcott, 62 Ore. 277. (d) Under and aside from Sec. 6750, R. S. 1909, the State has the right to bring suit to enjoin its officials from submitting a measure to a vote of the people. 22 Cyc. 757; State ex rel. v. Aloe, 152 Mo. 480; Friendly v. Olcott, 61 Ore. 581; State ex rel. v. Olcott, 62 Ore. 277; State ex rel. v. Hughes, 104 Mo. 459; Business Men's League v. Waddell, 143 Mo. 495; State ex rel. v. Railroad, 265 Mo. 688. (e) As jurisdiction over the action is vested in the Circuit Court of Cole County, as the Attorney-General is a proper party defendant and refuses to bring the action, as the defendant state officials reside and are served with process in Cole County and there perform the official acts toward which the suit is directed, and as the initiative or referendum petition is lodged in the office of the Secretary of State in such county, the cause of action arises in Cole County and is a matter concering the State in this county with respect to which the Prosecuting Attorney of Cole County has authority to bring an action in the name of the State. Secs. 6750, 6751, 1007, R. S. 1909; 32 Cyc. 710, 711, 715, 716; State ex rel. v. Williams, 221 Mo. 260; State ex rel. v. Lamb, 237 Mo. 437; State ex rel. v. Olcott, 62 Ore. 277. (2) This action was not prematurely brought. Sec. 6750, R. S. 1909; State ex rel. v. Carter, 257 Mo. 80. (3) The Workmen's Compensation Act is not subject to referendum. Laws 1919, pp. 484-85, sec. 81; Mo. Constitution, Art. 4, sec. 36; Mo. Constitution, Art. 4, sec. 57. Emergency measures are exempt from referendum. (a) A law which is subject to referendum cannot be made to take effect until after the time for filing a referendum petition against it has...