State v. Edwards

• Decision Date: 17 January 1916
• Citation: 182 S.W. 816,192 Mo.App. 413
• Parties: STATE OF MISSOURI, Respondent, v. JACK EDWARDS, Appellant
• Court: Kansas Court of Appeals

182 S.W. 816

192 Mo.App. 413

STATE OF MISSOURI, Respondent, v. JACK EDWARDS, Appellant

Court of Appeals of Missouri, Kansas City

January 17, 1916

Appeal from Chariton Circuit Court.--Hon. Fred Lamb, Judge.

AFFIRMED.

Judgment affirmed.

Roy W Rucker for appellant.

Roy W McKittrick and John D. Taylor for respondent.

OPINION

TRIMBLE, J.

--This is a prosecution for a sale of intoxicating liquor in violation of the Local Option Law which the State claims is in force in Chariton county. The indictment was returned on the 8th day of February, 1915. The offense is charged to have been committed on the first day of August, 1914. The sole defense was that the Local Option Law was not in force in Chariton county when the sale was made. Defendant was convicted and fined $ 300. The only question presented by his appeal is whether or not the election, at which Chariton county is said to have adopted local option, was valid.

The State introduced a record of the county court of that county showing that on the 7th day of May, 1913, a lawful petition, in regular form and bearing the requisite number of signers, was presented to the court. Said county court record further showed all the necessary orders directing the holding of a due and regular local option election in said county on the 7th day of June, 1913. It also showed that said election was held in due and regular form on said date, resulting in a vote "against the sale of intoxicating liquor" by a majority of 184; that all the necessary steps, required by the statute, pertaining to the counting, returning and canvassing of the vote, the declaration of results and the publication of notice, were taken and duly entered of record. There is no flaw in the record, nor any defect or infirmity in the proceedings so far as the record itself is concerned or in the proceedings disclosed thereby. On its face, and considered by itself, it shows that a valid election was held in said county on June 7, 1913, at which the county declared for prohibition, and that the same was duly put in force by proper notice.

The defendant objected to the introduction of this record, and, in connection with his objection, offered in evidence a record of the county court pertaining to an alleged local option election held on March 18, 1912, resulting in the defeat of prohibition by a majority of 99. The trial court refused to admit this record in evidence, and, overruling defendant's objection to the record offered by the State, admitted it in evidence. The defendant's contention is that since the record offered in evidence by him shows on its face a valid election, in which the county went "wet," on March 18, 1912, the election held on June 7, 1913, wherein the county went "dry," was and is a nullity since it was held within four years after the first election, in violation of section 7244, Revised Statutes 1909, which reads as follows:

"Whenever the election in this article provided for has been held, and decided either for or against the sale of intoxicating liquors, then the question shall not be again submitted within four years next thereafter in the same county or city, as the case may be, and then only on a new petition and in every respect conforming to the provisions of this article."

In reference to the first election, the defendant offered nothing except the county court record, and made no attempt to show that the validity of said first election, as established by said record, had remained unimpeached down to the time of the ordering of the second. There is a statement in respondent's brief that shortly after this first election it was declared invalid by the circuit court of that county in an action therein instituted, from which judgment an appeal was taken which was soon after dismissed. We have carefully searched the record but are unable to find therein any reference to such fact, and for this reason we will not take it into consideration in determining this case, as it is our duty to consider it solely upon the record as presented, especially in view of what the attorney for the other side has said concerning the propriety of making such unsupported statement. We refer to it only in order to show that we have not attached any importance to it.

The acts of the county court in entertaining a petition for a local option election, in determining the qualifications of the petitioners and the sufficiency thereof, and in calling a local option election are judicial in their nature, and the record of the county court made therein partakes of the nature of a judgment. [State v. Gamma, 149 Mo.App. 694, l. c. 704.] And the orders or judgment so made are not open to collateral attack. [State ex rel. v. Wilson, 216 Mo. 215, 115 S.W. 549; Desloge v. Tucker, 196 Mo. 587, l. c. 601; School District v. Chappel, 155 Mo.App. 498, 135 S.W. 75; State ex rel. v. County Court of Cass County, 137 Mo.App. 698, 119 S.W. 1010; 17 Am. and Eng. Ency. of Law (2 Ed.), 1055.]

The jurisdiction or power of the county court over the subject-matter of local option elections is conferred by section 7238, Revised Statutes 1909. The presentation of a petition properly signed calls the court's jurisdiction in the particular case into action or exercise. [State v McCord, 207 Mo. 519, l. c. 526; State ex rel. v. Bird, 108 Mo.App. 163, 83 S.W. 284.] Now when the petition calling for the election of June 7, 1913, was presented, if as a matter of fact a valid election on that subject had been held within four years prior thereto, the county court was required by section 7244, Revised Statutes 1909, to decline to call the election, but the jurisdiction of the county court over the subject-matter was not destroyed. Its power to call the election was merely dependent upon the fact whether a valid election had been held within four years. Section 7244 evidently means a valid election, for a void election is no election and cannot prevent a subsequent one. [State ex rel. v. Rinke, 140 Mo.App. 645, l. c. 663; Taylor v. Cook, 143 S.W. 1055.] Hence the act of the county court in calling the election of June, 1913, was not void for want of jurisdiction but only voidable in case the former election was valid. [Smith v. Black, ...