State ex rel. Martin v. Wilson
| Decision Date | 18 February 1908 |
| Citation | 108 S.W. 128,129 Mo.App. 242 |
| Parties | STATE OF MISSOURI ex rel. MARTIN et al., Respondents, v. WILSON et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from Laclede Circuit Court.--Hon. L. B. Woodside, Judge.
AFFIRMED.
Judgment affirmed.
I. W Mayfield for appellants.
(1) The general election law governs in this class of cases, there being no restriction on the legislature by the organic law on this class of cases, hence sections 4785, 5786 and 4788 of our Revised Statutes control. Russie v. Brazell, 128 Mo. 110; Richardson v. McReynolds, 162 Mo. 649. (2) It is unquestionably the rule and the law "that in this class of cases where parties had a fair opportunity to vote on the proposition and failed to do so they are to be considered as acquiescing in the result of the action of those that did vote." State v. Binder, 38 Mo 450; State ex rel. v. Satterfield, 54 Mo. 396. (3) Further, there is no allegation in plaintiff's petition that he suffered any special wrong, grievance, damage or otherwise. In the absence of such showing, writ should be denied. State ex rel. v. Dobson, 135 Mo. 19; Burkhart v. Stephens, 117 Mo.App. 431.
Nixon & Curry for respondents.
(1) The act restraining animals from running at large is not in force in a particular territory unless it has been put in force in the manner provided by the terms of that act. Berkshire v. Railroad, 28 Mo.App. 225; Hayward v Guilford, 69 Mo.App. 1. (2) The proposition of restraining animals from running at large in the five townships did not receive the requisite number of votes, and did not receive a majority of votes cast at that election. State v. Winklemeier, 35 Mo. 103; State v. Binder, 38 Mo. 455; State ex rel. v. Sutterfield, 54 Mo. 391; State ex rel. v. Brassfield, 67 Mo. 331; State ex rel. v. Mayor, 73 Mo. 435; R. S. 1899, secs. 4785, 4788.
--At the general election held on November 6, 1906, the question of restraining certain stock from running at large was submitted to the qualified voters of Union, Washington, Lebanon, Auglaize and Smith townships, in the county of Laclede, Missouri. The returns of the election were duly canvassed and the proposition to restrain sheep, swine and goats from running at large in said townships was declared duly adopted and to be in force from and after November 14, 1906,--the date the notice of adoption was published. Relator, a citizen of the United States, a qualified voter under the laws of the State, and a resident of one of the townships named, presented his petition to Hon. L. B. Woodside, judge of the Laclede Circuit Court, alleging that the election by which it was claimed the stock law had been adopted in said townships was void for the reason the statutory notice of said election had not been published as the law directs, and that the proposition was defeated for the further reason a majority of the voters voting at said election in said five townships did not vote in favor of said proposition, and asked that a writ of certiorari be issued and directed to the defendant justices of the county court of Laclede county and the clerk thereof, commanding them to bring into the Laclede Circuit Court the election returns and all their books, papers and records concerning said election. The writ was duly issued and served on defendants, who appeared and moved the court to quash said writ. The motion to quash was overruled and they filed their return to the writ. The return shows, first:
"Number of votes cast at the general election November 6, 1906, for county and State officers in the various townships are as follows, to-wit:
Votes cast in Union township
451
Votes cast in Washington township
290
Votes cast in Lebanon township
908
Votes cast in Auglaize township
233
Votes cast in Smith township
148
Total
2030
Second:
Number of votes cast at the general election November 6, 1906, on restraining sheep, swine and goats from running at large:
No. for
No. against
or Yes.
or No.
Relator moved for judgment on the return which motion the court sustained and rendered judgment in his favor.
1. Section 4783, chap. 69, art. 2, entitled, "Animals Restrained from Running at Large," R. S. 1899, provides:
"The provisions of this article are hereby suspended in the several counties in this State, until a majority of the legal voters of any county voting at any general or special election called for that purpose, shall decide to enforce the same in such county: Provided, that only a majority of the legal voters voting on said question shall be necessary to decide its adoption or rejection."
Section 4788, of the article, provides as follows:
The learned circuit judge, after reviewing the history of the legislation in regard to restraining stock from running at large, said:
To continue reading
Request your trial