State ex rel. Glenn v. Smith

GOODE, J.

(after stating the facts). — It must, of course appear from the alternative writ the relators are interested in the subject-matter of the proceeding; but this fact is sufficiently shoAvn by the averments that relators are qualified voters, taxpayers and citizens of the proposed road district and interested in the establishment of it. [State ex rel. v. St. Louis School Board, 131 Mo. 505 .] We find no defect of parties plaintiff and knoAV not why that ground was inserted in the demurrer. Neither of the two reasons mentioned is insisted on in this court, as sufficient to sustain the demurrer; but counsel for defendants have devoted their briefs and arguments to demonstrating the. inadequacy of the facts stated in the petition to constitute a cause of action. The defects pointed out as fatal are the lack of averments that notice of the special election was published or given as required by laAV, and three judges appointed for each precinct. The statutes provide for the organization of a special road district in any territory not exceeding eight miles square, Avherein is located a city containing five hundred and less than one hundred thousand inhabitants, by complying with certain provisions. [R. *56 S. 1899, art. 10, chap. 151.] Such districts may be organized and the statutes pertaining to them put into effect in a given territory, by the adoption of the article at a special election by a majority of the qualified voters voting on the question. This election must be called by the county court pursuant to a petition signed by fifty qualified voters who are residents and taxpayers of the proposed district; and when such a petition is presented it becomes the duty of the county court to submit to the voters at the next general election, or a special election held for the purpose at such time as the court may order, the question of adopting the article. ' The county court must give notice of such election by publication in some paper in the county for two weeks or more, the last insertion to be within five days before the election;' and such other notice may be given as the court may think proper. Regulations are prescribed regarding the form of the ballot and declaring the result of the election and then comes a clause providing that if a county court orders a special election for the purpose of adopting the article, it shall appoint three judges for each precinct in the proposed road district, one of whom shall be the clerk of the election, and the judges shall take the oath required of judges under the general election law. [R. S. 1899, sec. 9631.] Neither the petition for the writ of mandamus, nor the writ itself, contains any allegation of the appointment of the judges; but we do not hold this omission fatal, because statutory provisions regarding the mode of conducting an election are generally held to be directory, and failure to comply with them an irregularity which does not usually invalidate the election unless the statute says it shall. [15 Cyc. 372.] But it is otherwise with a statute requiring notice of a special election to be given. Such a requirement is mandatory and if it is not observed the election is void. [State v. Kaufman, 15 Mo. App. 656 ; State v. Tucker, 32 Mo. App. 602 .] We must determine then whether the want of an *57 averment in the alternative writ regarding the giving of the statutory notice, prevented the writ from, stating a cause of action, or whether failure to give notice of the election in the manner prescribed, was matter of defense to be set forth by defendants in their return In justification of their conduct in refusing to canvass and cast up the vote and declare the result of the election. If the proper notice was given and the other requisite steps taken, canvassing the vote and declaring the result would be ministerial duties, which the county court might be compelled by mandamus to perform. [State ex rel. Ford v. Trill, 72 Mo. 365 ; State ex rel. v. Berg, 76 Mo. 137 ; Barnes v. Gottschalk, 3 Mo. App. 111 .] If notice was not given, this would be a good reason for the refusal of the county court to enter of record the statutory order declaring article 10 of chapter 151 of the statutes to be the law in that special road district, from and after a day named in the order. [R. S. 1899, sec. 9631.] After considerable time spent in examining the point of pleading before us, we remain in doubt about the correct decision of it, but incline to the opinion that as notice was absolutely essential to a valid election, the alternative writ should have alleged notice was given. This is not a case in which the county court has declared the result of a special election and thereby raised the presumption, in the absence of an affirmative showing in the record to the contrary, that the steps essential to a valid election were taken. Hence State v. Searcy, 39 Mo. App. 393 . s. c., 46 Mo. App. 421 , 111 Mo. 236 , and other cases which might be cited, are not in point. In the present instance the county court refused, according to the allegations of the writ, to canvass and cast up the vote, or make an order of record that the article of the statutes providing for a special road district, is in force in the described territory; and if a presumption is to be indulged in the premises, it is that the county court has good ground for its refusal. To put it in the wrong aver- *58 merits of all the steps essential to holding a valid election ought tó he made; for only after such an election has been held, does it become the imperative duty of the court to declare the article is in force in the given territory and the special road district established. The earlier strictness of pleading required in mandamus proceedings has been relaxed in some measure and the rules which govern pleadings in ordinary actions applied. [High, Ex. Rem. (3 Ed.), secs. 448, 449.] But all courts and text-writers still declare the alternative writ must clearly show the relator is entitled to some right the respondent had denied him, and show’, too, a clear duty incumbent on the respondent to perform the act which the relator asks he be compelled to perform. A general allegation that the relator has in law a certain right, or that the respondent is bound to perform a certain act, is insufficient, as involving a legal conclusion on the part of the pleader. The specific facts which confer the right on the relator and impose the duty on the respondent, must be stated. Such is the rule of pleading expressed in general terms. [Merrill, Mandamus, sec. 255; High, Ex. Rem. (3 Ed.), sec. 450; 2 Spelling, Inj. & Ex. Rem. (2 Ed.), sec. 1567; 13 Enc. Pl. & Pr. 680, et seq.; 26 Cyc. 435, et seq.] As will be seen by looking into these authorities, the facts on which the right of the relator and the correlative duty of the respondent rest, must be alleged so distinctly as to enable them to be traversed and an issue raised on every essential fact. [State ex rel. v. Governor, 39 Mo. 388 ; State ex rel. v. Everett, 52 Mo. 89 ; Hamilton v. Towm of Dexter, 89 Mo. 188 .] One might not feel sure the rule wre have stated in general terms would require of the present relators the necessity of alleging notice of the election was given, instead of leaving an omission to give the notice to be pleaded in the return as a defense. It might be argued that the recital in the wont of the order by the county court for publication of the election *59 notice in a designated paper, sufficed as an allegation that due notice was given. It is to be noted at this point, that the statute with which we are dealing requires the county court to do more than order publication of the notice. It says the court shall give notice of the election by publishing it in the prescribed manner, thereby directing the court to publish the notice or have it published, instead of merely ordering this to be done. Neither the alternative writ in the present case, nor the petition for said writ, alleges in terms or by necessary implication, that notice was published. Both the petition for the writ and the writ itself come no nearer to averring notice was given, than to recite an entry of an order made by the county court regarding the election, in which was contained these words: “And it is further ordered that this notice be published in the Louisiana Press-Journal, a newspaper published in said county of Pike, for two consecutive weeks, the last insertion thereof to be within five days next before said day of election.” Manifestly this recital falls far short of alleging notice was given; and there is not even an averment that the election was duly or legally called and held pursuant to the county court’s order. If we were presuming about the matter, in order to help the pleading, we would have to presume the court’s order was transmitted to the publishers of the paper and presume, too, the latter published the notice in conformity to the order. But this would be piling presumptions on each other. The essential question is whether it is incumbent on relators to allege the giving of notice, or on defendants, if they refused to declare the result of the election because proper notice was not given, to say sio in their return. We find decisions by respectable courts, including those of our own State, which indicate that the proper application of the aforesaid general rule of pleading in a mandamus proceeding, puts on the relators the burden of making this averment and proving it. In State ex rel. *60 Gassalo v. Hudson, 13 Mo. App. 61 , the relator sought by mandamus to compel the respondent,- the city of St. Louis, to issue a dramshop license to relator. The writ averred generally compliance by relator Avith all the provisions of the statutes and the ordinances of the city of St. Louis relating to dramshops. It was held this averment Avas too general in terms, and was bad in failing to state the facts which Avould entitle relator to the relief sought and in stating in lieu of the facts, conclusions of law. Looking to other averments of the writ, the court said relator’s petition was signed by a majority of the bona fide householders in the block as required by the revised ordinances of the city, and might be treated as a compliance with those ordinances; but as a statute of the State prohibited the granting of a license to keep a dramshop in any city block or square, etc., unless the majority of the taxpaying citizens should sign a petition asking for the license, it was essential for the relator to show compliance with this statute, to-wit; the signing of his petition by a majority of the taxpayers. It could as well have been held in said case, to be incumbent on the collector to set up in his return, as a reason for refusing the license, that no petition properly signed by a majority of the taxpayers had been presented, as to hold in the present case; the burden was on 'defendants to plead their own failure to give notice of the election. What the decision just cited affirmed was that the petition for license was fatally defective because it failed to aver a majority of the taxpayers had signed the relator’s petition for a license. In Curry v. Cabliss, 37 Mo. 330 , the action was for damages against the defendants as judges of election for refusing to accept the plaintiff’s ballot. The petition alleged that plaintiff being in all respects a legal voter of the county and entitled to vote at the election, and having complied with the law, appeared at the precinct and presented his ballot, but the judges rejected it. A de *61 murrer was sustained to the petition; and it was held bad on appeal. What the plaintiff alleged about being a qualified voter was held to be a recital of a conclusion of law, and that he should have alleged he possessed all the statutory qualifications of a-voter; such as that he was a free white citizen, twenty-one years of age, had resided in the county and district for the last three months, etc. This case was not a proceeding for mandamus, but the ruling on what averments are essential to the statement of a cause of action, is in point by analogy. In State ex rel. Sammon v. Sec’y State, 11 Wyo. 1 , the writ was asked against the Secretary of State to compel him to file in his office, a certificate nominating the relator as candidate for the office of district judge. The statutes required nominating certificates to be filed not less than forty days before the election. As the petition did not allege the date when the certificate was presented to the Secretary of State for filing, it was held to be defective. In McGann v. People, 191 Ill. 526 , mandamus was asked against the Commissioner of Public Works of the city of Chicago, to compel him to issue and deliver to relator a written permit, authorizing the relator to lay and construct a switch track in accordance with the terms of an ordinance enacted by the city of Chicago. This Ordinance had granted to Coffeen, the relator, permission to lay a private switch, but before the work could be commenced, a certificate from the Commissioner of Public Works was essential. A statute of Illinois prohibited city councils from enacting an ordinance granting a right to lay railroad tracks in any street of a city, except on the petition of the owners of one-half the frontage of the abutting property. The question for decision in the case was whether the petition for mandamus was good, it having alleged the enactment of the ordinance but not the signing of the preliminary petition by the property owners. For the relator it was contended this was matter of defense; but the court held that as *62 the common council had no power to grant permission to lay the switch without a petition signed by the property owners an allegation of the fact was essential. The opinion said it was as necessary to ayer in the petition for mandamus, this condition precedent to the right of the council to pass the ordinance, as it was to aver the ordinance was passed. In Sieber v. McCaffery, 108 Mo. App. 49 , 82 S. W. 1104 , this court held a petition for a writ of mandamus to compel election commissioners to print relator’s name on the official ballot as a party nominee, was insufficient, in that it alleged a call by the party central committee for primaries to select delegates to the city and district conventions, but failed to allege the publication of notice for the election in the manner prescribed by the statutes. The statute immediately involved in the decision wms section 12 of an Act approved March 13, 1901. This act provided that whenever the general committee representing a political party in a city to which the act applied, should officially call a primary election at which the electors belonging to the party in the city and districts, should select delegates to a nominating convention, the election commissioners of the city should forthAvith prepare a notice of the primary election and publish it at least three days prior to the election. The- petition for mandamus averred the calling by the central committee of the primary, but did not aver the board of election commissioners, who Avere officially charged with the duty, had published notice of the primaries.. If Ave may venture to deduce a rule from the foregoing decisions, it is that in a mandamus proceeding, when the right demanded by the relator must arise out of some act of the respondent as a public official, done under special authority, and certain steps are prescribed as essential to the exercise of the authority, these steps must be alleged in the petition for mandamus, or in the alternative writ, as the case may be. Whether we rely on the general rule *63 of pleading or apposite precedents, it is reasonably clear the petition in this case is inadequate. No valid election occurred to establish a special road district unless notice of it was given by the county court; and the alternative wri t makes no averment on the subject, but merely recites an order of the county court for the publishing of the notice.

The judgment Avill be affirmed without prejudice to the right of relators to institute another action.

All concur.