Ex Parte Leach

• Decision Date: 19 July 1910
• Citation: 130 S.W. 394,149 Mo. App. 317
• Parties: Ex parte LEACH.
• Court: Missouri Court of Appeals

130 S.W. 394

149 Mo. App. 317

Ex parte LEACH.

Springfield Court of Appeals. Missouri.

July 19, 1910.

1. HABEAS CORPUS (§§ 1, 4.)—SCOPE OF WRIT.

A writ of habeas corpus, while a writ of right, is not a writ of course, and cannot be used as a substitute for an appeal or writ of error.

2. HABEAS CORPUS (§ 32)—SCOPE OF WRIT— LOCAL OPTION LAW—VALIDITY OF ADOPTION.

One convicted of violating the local option law may test the validity of its adoption by habeas corpus.

3. INTOXICATING LIQUORS (§ 33)—LOCAL OPTION LAW—ADOPTION—ORDER FOR PUBLICATION.

Rev. St. 1899, § 3029 (Ann. St. 1906, p. 1736) provides that notice of local option election shall be given by publication in some newspaper published in the county, and such notice shall be published in such newspaper for four consecutive weeks, and the last insertion shall be within 10 days next before the election, etc. Held, that where two or more papers were published in a city in which a local option election was to be held, a resolution of the city council directing the clerk to publish notice in "some newspaper published," in the city, was not fatally defective for failure to designate the paper or papers in which the notice should be published, and as delegating legislative authority to select such paper to the clerk.

Habeas corpus on petition of Harvey Leach. Cause certified to the Supreme Court.

Clay & Davis, for petitioner. A. G. Young and W. R. Robertson, for respondent.

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 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 10 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 otherwise 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, Mo., 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 of 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 papers 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 in 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 at 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 or holding said election was generally known to all the qualified voters of said city. That at said election a larger vote by about 400 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 in the return, and the issue is thus sharply defined, and presents for our consideration the question of the legality of the local option election in Webb City.

Preliminary to an examination of the question raised by the pleadings in this case we deem it proper to first determine our own jurisdiction and authority to determine the question in a habeas corpus proceeding. The writ of habeas corpus is a writ of right, but but is not a writ of course, and is not to be had for the asking. State ex rel. v. Dobson, 135 Mo., loc. cit. 10, 36 S. W. 238. And not every question, the proper solution of which would result in the prisoner's discharge can be determined in a proceeding by habeas corpus. This proceeding cannot be used as a substitute for an appeal or writ of error. Ex parte Mitchell, 104 Mo. 121, 16 S. W. 118, 24 Am. St. Rep. 324; Ex parte McLaughlin, 210 Mo. 657, 109 S. W. 626; Ex parte Buckley, Petitioner, v. Hall, Warden, 215 Mo. 93, 114 S. W. 1065. And yet some questions that could be determined on appeal or writ or error may also be determined in a proceeding by habeas corpus. The constitutionality of a law may be determined in this proceeding. Ex parte Lucas, 160 Mo. 218, 61 S. W. 218; Ex parte Smith, 135 Mo. 223, 36 S. W. 628, 33 L. R. A. 606, 58 Am. St. Rep. 576; Ex parte Neet, 157 Mo. 527, 57 S. W. 1025, 80 Am. St. Rep. 638.

But when a law is conceded to be constitutional, and the right to retain in custody a prisoner charged with a violation of that law rests upon some fact which is an element of the offense charged, and which fact must be proven by the state to make out a prima facie case against him, or which fact may be proven by the defense, and when proven makes a complete defense to the charge entitling the prisoner to a discharge, can that question of fact be passed upon in a habeas corpus proceeding, and the court's finding thereon be made the basis of holding or discharging the prisoner?

The constitutionality of the local option law has been settled beyond...