Missouri Farm Bureau Federation v. Kirkpatrick

PER CURIAM: This is mandamus. According to a stipulation of facts, rela-tors submitted a petition to respondent’s office on July 4, 1980, containing 167,363 signatures supporting placement on the November 4, 1980, ballot of a constitutional — 948 — amendment to limit state and local government spending. On September 2, respondent received 1,377 affidavits from persons within the Sixth Congressional District requesting withdrawal of their signatures. Of these affidavits, respondent accepted 1,178, leaving an insufficient number of signatures to put the question on the November ballot. On September 5, relators filed this action and on September 9, this Court issued an alternative writ in mandamus. On September 11, 1980, the Sixth District Committee for Reasonable Taxation, Inc., a Missouri corporation, filed a motion for leave to intervene, or in the alternative for leave to participate amicus curiae in this case. Permission to appear amicus, file briefs and argue was granted. The motion to intervene is overruled by order filed this date.1 The sole question, as limited by the pleadings in this ease, is: In order for the withdrawal of signatures to be effectual, was it necessary that the affidavits for withdrawal be filed with respondent on or before July 4, 1980? Article III, § 50 of the Missouri Constitution provides: Initiative petitions proposing amendments to the constitution shall be signed by eight per cent of the legal voters in each of two-thirds, of the congressional districts in the state, and petitions proposing laws shall be signed by five per cent of such voters. Every such petition shall be filed with the secretary of state not less than four months before the election and shall contain an enacting clause and the full text of the measure. Petitions for constitutional amendments shall not contain more than one amended and revised article of this constitution, or one new article which shall not contain more than one subject and matters properly connected therewith, and the enacting clause thereof shall be ‘Be it resolved by the people of the state of Missouri that the Constitution be amended: ’. Petitions for laws shall contain not more than one subject which shall be expressed clearly in the title, and the enacting clause thereof shall be ‘Be it enacted by the people of the state of Missouri: ’. We hold that the statement of law in 42 Am.Jur.2d Initiative and Referendum § 31 (1969) is applicable: In deciding whether signatures may be withdrawn from a petition, courts have sometimes considered when the petitioners may add signatures and held that signatures may be withdrawn at those times or at least at any time before the petitioners are foreclosed from adding signatures, but not thereafter because it would be unfair to permit withdrawals at a time when additions could not be made. Accordingly, where a statute prescribes a certain time within which a referendum petition may be filed, generally signers of the instrument may withdraw therefrom at any time during the period allowed for filing but not after the expiration of that period. The point is well stated in State ex rel. Harry v. Ice, 207 Ind. 65, 191 N.E. 155, 156 (1934): “If * * * petitioners are permitted to withdraw their names after opportunity for supplying additional names, or filing new petitions, has passed, a very patent door to chicanery and fraud upon the voters and the community is provided.” See also City of Sedalia ex rel. Gilsonite Const. Co. v. Montgomery, 109 Mo.App. 197, 88 S.W. 1014 (1904), aff’d 227 Mo. 9, 127 S.W. 50 (banc 1910); Hoover v. Newton, 193 S.W. 895 (Mo.App.1917); State ex rel. Hopkins v. City of Independence, 114 Kan. 837, 221 P. 245 (1923); Commonwealth ex rel. Meredith v. Fife, 288 Ky. 292, 156 S.W.2d 126 (1941); State v. Trenton, 58 N.J.L. 40, — 949 — 32 A. 685 (1895); Board of Educ. v. Board of Educ., 112 Ohio St. 108, 146 N.E. 812 (1925); Sharum v. City of Muskogee, 43 Okl. 22, 141 P. 22 (1914); State ex rel. Williams v. Bateman, 60 S.D. 320, 244 N.W. 357 (1932); Annot., 27 A.L.R.2d 604 (1953); and Annot., 126 A.L.R. 1031 (1940). We have considered the authorities cited by respondent and conclude that the alternative writ in mandamus should be made permanent insofar as it orders respondent to replace the 1,178 signatures heretofore removed from the petitions containing the names of signers in the Sixth Congressional District. It is so ordered. BARDGETT, C. J., and DONNELLY, SEILER, WELLIVER, MORGAN and HIGGINS, JJ., concur. RENDLEN, J., dissents in separate dissenting opinion filed. Footnotes [1] On September 15, 1980, the day before hearing and final argument herein, the Sixth District Committee filed a purported “Brief of In-tervenor” wherein the Committee alleged imperfections in the petitions themselves, issues at no time pleaded, briefed or answered by any party to this action. These issues being issues neither pleaded by the parties nor necessary to determination of the issues herein, the motion to intervene was overruled contemporaneously with the issuance of this opinion.