State ex rel. Ferro v. Oellermann

458 S.W.2d 583, 1970 Mo. App. LEXIS 556
CourtMissouri Court of Appeals
DecidedSeptember 22, 1970
DocketNo. 33617
StatusPublished
Cited by8 cases

This text of 458 S.W.2d 583 (State ex rel. Ferro v. Oellermann) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Ferro v. Oellermann, 458 S.W.2d 583, 1970 Mo. App. LEXIS 556 (Mo. Ct. App. 1970).

Opinion

SMITH, Commissioner.

Relators appeal from the action of the trial court in dismissing their application for a writ of mandamus against respondent Oellermann which dismissal was upon the ground that the “Petition seeks to compel a discretionary act by Writ of Mandamus.” The act sought to be compelled is a certification to the City Council by Oellermann, as City Clerk of the City of Bridgeton of the sufficiency of petitions for recall of in-tervenor-respondent Davis as mayor of Bridgeton. The issue here is whether the well pleaded facts of relators’ application state a cause of action in mandamus. We hold they do.

The application sets forth the status of the parties and incorporates in haec verba the pertinent portions of the charter of Bridgeton conferring the power of recall upon the citizens and setting forth the procedures to be followed. Essentially those provisions require a petition “signed by voters of the city equal in number to 20% of the registered voters qualified to vote for the office in question as shown by the registration records at the time of the last regular municipal election.” The recall petition must contain a general statement of the grounds for removal; each signer must designate his residence; the circulator of each paper making up the petition must sign a statement of the number of signers of the paper, that the signatures were made in his presence and are genuine and that he believes each signer to be a registered voter of the city. After the petition is filed the city clerk “shall determine whether each paper of the petition has a proper statement of the circulator and whether the petition is signed by fewer persons than the number certified, the signatures shall be accepted unless void on other grounds.” If the petition is sufficient the clerk is required to certify it to the council; if insufficient he is required to set forth in his certificate the particulars in which it is defective and mail a copy of the certificate to the person filing the petition. Within ten days after notification of insufficiency the petition may be amended by filing a supplementary petition, which the clerk must again examine for sufficiency. If sufficient, the clerk must so certify to the council; if still insufficient the clerk must file his certificate to that effect and no further action is had on the petition. If the certification to the council is that a sufficient petition has been filed the council must set a date for [585]*585the election to submit the question, “SHALL (name and title) BE REMOVED FROM OFFICE” and upon a majority vote to recall, a vacancy in the office shall exist.

On December 16, 1968, relator Ferro filed with the city clerk a recall petition as to Davis containing 1,684 signatures. This petition was returned to that relator on January 16, 1969, with a certification that it contained only 1120 valid signatures of qualified registered voters and that 1263 signatures were required. On January 23, 1969, Ferro refiled the original petition and a supplemental petition with 464 additional signatures.

On February 5, 1969, the petition was returned to Ferro with a certification that it was insufficient and defective in the following particulars:

“Item 1:
The total number of registered voters in the City of Bridgeton qualified to vote at the last regular municipal election held on April 2, 1968 was 6,318.
A valid petition for the recall of Mayor Davis accordingly must contain the valid signatures of 1,263 voters of the city, being twenty percent of said total of citizens qualified to vote at the last regular municipal election.
The said petitions with amendment contains only 1136 signatures (valid except for Items 2 and 3 below) of qualified registered voters and is thus insufficient.
“Item 2:
The petition with amendment is void because the grounds for removal stated on the petition does not in fact exist. [The grounds set forth were that ‘Davis has failed to properly administer the City Business as is his duty under Section 2.-05 of the Bridgeton City Charter].
“Item 3:
The petition with amendment is void because signatures to the petition with amendment were solicited, induced or obtained by or as the result of illegal or improper misstatements or mispresentation by circulators of the petition.”

Items 2 and 3 had not been included in the certification following the filing of the original recall petition.

Relators’ application for writ set forth several grounds upon which it is contended the clerk exceeded her powers and acted without authority. Those grounds can be categorized as follows:

1. The certificates did not set forth the particulars in which the petition with amendment was defective.

2. The clerk did not make her determination within the time periods set forth in the city charter.

3. The certification as to Items 2 and 3 exceeded the powers and duties of the clerk.

4. The petitions contained enough signatures to require certification as sufficient.

5. The clerk acted arbitrarily, capriciously, illegally, unreasonably and without basis in law or fact in declaring the petitions insufficient.

Before turning to whether any or all of these alleged grounds state a claim for relief in mandamus we turn to the more basic and pervading question — whether mandamus lies at all to compel the clerk to certify this recall petition to the city council. The trial court apparently concluded that certification was a discretionary act which could not be compelled by mandamus. In support of this contention we are cited to Fleming v. Fones, 230 Mo.App. 1147, 91 S.W.2d 208, which held that the clerk’s duties under the recall statute there involved were quasi-judicial and not reviewable by mandamus. Although there are distinguishing features between the Fleming statute and the Bridgeton charter, we find it unnecessary to discuss those as we conclude that Fleming is contrary to the latest holding of the Supreme Court in State ex [586]*586rel. Wahlmann v. Reim, Mo., 445 S.W.2d 336 (decided after the trial court’s order in this case). In Wahlmann the court, in a mandamus proceeding, ordered certification of the sufficiency of a referendum petition by the city clerk of Kirkwood, who had determined the petition was insufficient. The referendum statute before the court specifically states that the petition is to be examined and certified to by the clerk as provided for in sections 78.260 through 78.290, RSMo.1959, which deal with recall. The duty of the clerk under § 78.270 in ascertaining the sufficiency of the petition is virtually the same as his duty under the statute involved in Fleming, supra. The decision in Wahlmann did not rely upon any charge of fraud, arbitrariness or capriciousness, but solely upon the determination that the clerk improperly struck a large number of the signatures on the petition. The Supreme Court did not specifically discuss the availability of mandamus to test the clerk’s determination of insufficiency of the petition, but implicit in the Wahlmann

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Bluebook (online)
458 S.W.2d 583, 1970 Mo. App. LEXIS 556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-ferro-v-oellermann-moctapp-1970.