#### ALEX BARHAM v. J. E. SAWYER, City Clerk.

(Filed 21 October, 1931.)

Elections *3*a: Mandamus A b — Plaintiff failed to show clear legal right for certification of recall petition and mandamus was properly denied.

Mandamus is only available to enforce a clear legal right, and where the writ is sought to compel a city clerk to certify to the sufficiency of a petition for the recall of an elected officer of the city under the provisions of the city charter, and it appears that the original petition, after the elimination of duplicates, contained five less names than the number required- for the recall, and the record fails to show that an amended petition thereafter filed, purporting to contain the names of fifty-eight additional electors, was ever acted upon by the clerk or that it did contain the names of as many as five additional qualified electors, the plaintiff has failed to show a clear legal right and the writ of mandamus is properly denied, and the question of whether the clerk had the authority to remove the names of electors from the petition upon their written application is not presented for decision.

Appeal by plaintiff from *Harris, J.,*at Chambers, Raleigh, N. C., 30 July, 1931. From Wake.

Application for a writ of mandamus to compel the clerk of the city of Raleigh to certify to the sufficiency of a petition for the recall of Carl L. Williamson, commissioner of public safety of said city.

It is alleged that on 1 July, 1931, a recall petition was duly filed with the defendant as required by Article XI of the city charter, the pertinent part of which is as follows:

“Within ten days from the date of filing such petition the city clerk shall examine and from the voters’ register ascertain whether or not said petition is signed by the requisite number of qualified electors, and he shall attach to said petition his certificate, showing the result of such *499examination. If, by tbe clerk’s certificate tbe petition is shown to be insufficient, it may be amended witbin ten days from tbe date of said certificate. Tbe clerk shall, witbin ten days after such amendment, make like examination of tbe amended petition, and if bis certificate shall show tbe same to be insufficient, it shall be returned to tbe person filing tbe same; without prejudice, however, to tbe filing of a new petition to tbe same effect. If tbe petition shall be deemed to be sufficient, tbe clerk shall submit tbe same to tbe board of commissioners without delay.”

Tbe clerk returned said petition 10 July, 1931, with accompanying certificate as follows:

“I, J. E. Sawyer, city clerk, in and for tbe city of Ealeigh, county and State aforesaid, do hereby certify that there was filed in my office on 1 July, 1931, thirty-one petitions, duly sworn to and attested, each petition being beaded as follows:

‘Petition for tbe recall of Carl L. 'Williamson, commissioner of public safety of tbe city of Ealeigh.’

I further certify that, as required by Article XI of tbe city charter, I have examined and checked tbe names on said petitions with tbe registration boobs for tbe several precincts on file in my office, and that I have withdrawn from said petitions, by authority of a ruling from tbe Attorney-General of tbe State of North Carolina, certain names from said petitions, after written application was received for such withdrawals.

I further certify that tbe results of such examination, checking and withdrawal, are as follows:

Number of qualified electors necessary to complete petition 901

Number of names on original petitions. 926

Number withdrawn by application. 238

Number eliminated (duplicates, etc.). 30 268

Number of qualified names remaining on list 658

Number deficient. 243

All withdrawn names were qualified electors.

I further certify that I have this day returned petition to tbe petitioners for tbe purpose of filing an amended or a new petition, as authorized by said Article XI of tbe city charter.

In witness whereof, I have hereunto set my band and affixed tbe corporate seal of tbe city of Ealeigh, this 10 July, A.D., 1931.

(Corporate seal.) J. E. Sawyer, city clerk.”

*500Thereafter, on 20 July, 1931, the petition was refiled with tbe defendant, together with an additional j)etition purporting to contain the names of 58 additional qualified electors of the city of Raleigh.

The record is silent as to what action, if any, was taken by the clerk upon this amended or new petition. Summons in this action was issued the same day, 20 July, 1931.

From an order *denying*the writ, plaintiff appeals, assigning error.

*J. 8. Griffin for plavrdiff.*

*Clem B. Holding and Robert N. Simms for defendant.*

Stagy, O. J.

It is the contention of the plaintiff that the signers of the original recall petition are not permitted by law to withdraw their names therefrom and that the defendant was and is without authority to remove from said petition the name of any qualified elector. *Non constat*the original petition was signed by only 896 qualified electors — • admittedly 5 less than the required number, and there is nothing on the record to show that this deficiency was met by the supplemental petition purporting to contain 58 additional names. It may or may not have been signed by as many as 5 qualified electors. So far as the record discloses, no action was ever taken upon this amended or supplemental petition. For this reason, if for no other, the writ of mandamus, which is only available to enforce a clear legal right, was properly denied. *Hayes v. Benton,*193 N. C., 379, 137 S. E., 169; *Umstead v. Board of Elections,*192 N. C., 139, 134 S. E., 409; *Herson v. Doughton,*186 N. C., 723, 120 S. E., 481.

Affirmed.'