Ex Parte Harvey Leach
| Decision Date | 19 July 1910 |
| Citation | 130 S.W. 394,149 Mo.App. 317 |
| Parties | Ex Parte HARVEY LEACH |
| Court | Missouri Court of Appeals |
Prisoner remanded and case certified to Supreme Court. (and cause certified to Supreme Court).
Clay & Davis for petitioner.
(1) Habeas corpus is a proper remedy in this case. R. S. 1899 sec. 3578; 2 Spelling Extraordinary Relief, secs. 1202, 1205; Ex parte Nee, 157 Mo. 527; In re Flukes, 157 Mo 125; Ex parte Harrison, 212 Mo. 88; Ex parte Smith, 135 Mo 223; Ex parte Marmaduke, 91 Mo. 228; Ex parte Swan, 96 Mo. 44; In re Thompson, 117 Mo. 83; Ex parte Arnold, 128 Mo. 256; In re Wooldridge, 30 Mo.App. 612; Ex parte Nielson, 131 U.S. 176, 33 L.Ed. 118. (2) It is a general rule of law governing special elections, or at least it is in this State, that the provisions of the statutes regulating the calling of such elections and the giving of notice thereof must be strictly complied with in order for such elections to be legal. Bean v. County Court, 33 Mo.App. 635; State ex rel. v. Tucker, 32 Mo.App. 620; State v. Kaufman, 45 Mo.App. 656; State v. Kapman, 75 Mo.App. 188; State ex rel. v. Martin, 83 Mo.App. 55; State ex rel. v. Baldwin, 109 Mo.App. 573; State v. Kellogg, 133 Mo.App. 431; State v. Gatlin, 128 S.W. 806, 134 Mo.App. 582. (3) The court's attention is called to the cases of State ex rel. v. Foster, 187 Mo. 590; State v. Binswanger, 122 Mo.App. 78; State v. Kessels, 120 Mo.App. 233; and State ex inf. v. Dabbs, 182 Mo. 359, as authorities for the proposition that the Local Option Law is a special law and that the city council was obligated under section 3029, Revised Statutes 1899, to exercise their discretion and to designate, in the order calling the election, the paper in which the notice should be published. (4) Finally it is argued that the statute requiring the city council to designate the newspaper in which the notice of the calling of the election should be published, is directory; and especially in view of the fact that a large vote was polled, and in view of the fact of the general publicity given by mass meetings, and otherwise, of the calling of the election. This contention is not tenable. Lester v. Miller, 24 So. 193; People v. Board of Canvassers, 66 N.Y. 199; Roper v. Scurlock, 62 S.W. 456; In re Kreiger, 69 N.Y. 851; People v. Town Clerk, 56 N.Y. 64; Ex parte Gublett, 4 S.W. 894; Commonwealth v. McCarthy, 76 S.W. 173; Cress v. Commonwealth, 37 S.W. 493; State ex rel. v. Martin, 83 Mo.App. 55.
A. G. Young and W. R. Robertson for respondent.
(1) Under the proceeding we understand that there is only one question involved and that is whether or not by the failure of the Webb City Council to designate in terms the newspaper in which the local option election notice should be published renders the election void. We contend that under the law, the facts and circumstances disclosed by the return that it did not. Revised Statutes 1899, sec. 3028; Horsefall v. School District, 128 S.W. 33; State ex rel. v. Ruark, 34 Mo.App. 331; State v Kellogg, 133 Mo.App. 439; State v. Circuit Court, 15 A. 272; Seymour v. Takoma, 33 P. 1059 (Wash.); Stearns v. State, 100 P. 915 (Okla.); Wheat v. Smith, 50 Ark. 276; Foster v. Scorff, 15 Ohio St. 532.
Original Proceedings by Writ of Habeas Corpus.
COX, J.
Writ issued, petitioner waived production of his person and the case is here for disposition on the pleadings.
The petitioner alleges that he is confined in the county jail of Jasper county under a warrant issued upon an information filed in the office of the clerk of the circuit court of said county, charging the petitioner with the violation of the Local Option Law within the city of Webb City, which law the information charged had been legally adopted in said city. Petitioner alleges that his restraint is illegal and unauthorized, because as he alleges, the election by which it is claimed the Local Option Law was adopted in said Webb City, was void, and to show the invalidity of the election sets out the proceedings of the city council of Webb City, together with copies of the petition for the election, notice of the election, canvass of the returns and notice of the result of the election in full.
The grounds upon which the validity of the election is assailed are that the order of the city council directing notice of the election to be given, and the notice given in pursuance thereto are insufficient. The order calling the election provided for giving notice as follows:
"And be it further resolved that the city clerk of the city of Webb City be ordered to publish notice of said election in some newspaper published in Webb City for four consecutive weeks, the last insertion to be made within ten days before such election."
Petitioner then alleges that the mayor and city clerk thereafter caused to be published in the Webb City Daily Register, a daily newspaper published within the corporate limits of said city, the following notice: (Here follows copy of the notice, but as no point is made as to its contents we shall not copy it.)
It is alleged that during all the time there was published within the corporate limits of said city more than one newspaper, and that the notice of said election was published only in the Webb City Daily Register.
The return of the sheriff admits that the petitioner is held under warrant as alleged in the petition and also avers the calling and holding of the election, and asserts that the Local Option Law was legally adopted and by way of specific answer to the charge of alleged illegality, on account of the notice of election being published in but one newspaper in Webb City, avers that there were but two newspapers published in Webb City, to-wit, the Webb City Daily Register, and the Webb City Daily Sentinel. That there was at the time in force a contract between the city of Webb City and the Daily Register by which the city council were bound to publish all notices of special elections as well as other legal notices in said paper, and that it was understood by said city council and said city clerk that unless other-wise specifically directed, all notices of elections and other legal matters should be published in the Daily Register, and that the Daily Register had a larger circulation than the Daily Sentinel, the only other paper published in Webb City.
That there were a number of other daily newspapers circulating in Webb City. That a local option election was called in Joplin, Missouri, several days before the election in Webb City.
That said papers contained numerous editorials and articles for and against local option and the fact was repeatedly mentioned that an election would soon be called in Webb City. That on the next day after the calling of the election in Webb City the editorial columns and front pages of all of said papers, under display and large and prominent headlines, contained articles calling attention to the date of said election, and discussing the issues involved. That each faction had a complete and extensive organization with headquarters and offices in Webb City, and that almost daily after the calling of said election, all of said papers contained articles by private citizens and the committees for and against local option, discussing the issues of said election and calling attention to its date. That the Daily Register and the other daily paper having the largest circulation in Webb City contained daily editorials and articles setting forth reasons why the voters should cast their ballots for the "Wets."
That a poll of the voters of said city was taken and there was sent to said voters by mail from the respective headquarters, literature with reference to said election, mentioning its date and discussing the issues involved. That both factions posted placards and literature in the store buildings and all available places in Webb City discussing the issues involved in said election, and calling attention to the same and its date.
That after the calling of said election public meetings were held at the various churches and the opera house in said city and the issues discussed by noted speakers. That frequent meetings were held in all the various wards of the city and on the street, and that street parades were conducted in which banners and various devices were displayed, calling attention to said election. That the city council, by ordinance, fixed the usual voting places as the voting places for said special election, and published notice of said polling places as required by law. That the time and place of holding said election was generally known to all the qualified voters of said city. That at said election a larger vote by about four hundred was cast than at any previous election in said city. That on the day of election all available carriages, automobiles and other conveyances in Webb City, and also from neighboring cities and the surrounding country, were busily engaged in Webb City throughout the day of said election, seeking voters and conveying them to the polling places. That a short time previous to said election in Webb City, the people of Joplin had voted on local option, and Carthage, Carterville and Jasper county outside of said cities were to vote in a few days after said election in Webb City, and that the campaign committees and managers from all parts of Jasper county were present in Webb City on said election day, doing all things possible for the furtherance of their respective causes, and that every qualified voter in Webb City was afforded an opportunity to vote.
Upon this return being filed the petitioner moved for his discharge upon the ground that the facts alleged in the return did not show any legal ground for retaining the prisoner.
The motion for discharge admits the truth of the facts pleaded...
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