State ex rel. City of Elvins v. Marshall
| Decision Date | 02 June 1914 |
| Citation | 167 S.W. 1050,183 Mo.App. 593 |
| Parties | STATE ex rel. CITY OF ELVINS et al., Relators, v. JOHN MARSHALL et al., Respondents |
| Court | Missouri Court of Appeals |
WRIT MADE ABSOLUTE.
Preliminary rule in prohibition made absolute, and writ awarded.
B. H Boyer for relators.
B. H Marbury and Fauntleroy, Cullen & Hay for respondents.
Prohibition. Original Proceeding.
This is an original proceeding in this court, wherein relators seek a writ of prohibition against the judges of the county court of St. Francois county. The relators are the city of Elvins, a city of the fourth class situated within said county, the mayor thereof, and certain taxpaying citizens and residents of such city.
On April 20, 1914, a petition was filed with the county court, under the provisions of the statute relating thereto, alleging that the city of Farmington was, at such time, the only incorporated city in such county having a population of 2500 inhabitants or more, and praying the county court to order and call a "Local Option" election to be held in and for all of said county outside of the city of Farmington, and including the city of Elvins.
Under the provisions of sections 7238 and 7239, Revised Statutes 1909, any incorporated city or town having a population of 2500 inhabitants or more is entitled to vote separate and apart from the remainder of the county in which it is situated, to determine whether or not spirituous and intoxicating liquors shall be sold within its limits. These sections were sought to be repealed by the last Legislature, by what is known as the "County Unit Bill." (Laws of Missouri 1913, p. 388, et seq.) However, the operation of said last mentioned act was suspended by the filing of referendum petitions, and said law is now so held in suspension, pending a vote thereon by the voters of the State at large, whereby the provisions of the statute of 1909, above referred to, still remain in force and effect. [See State ex rel. Kemper v. Carter et al., 257 Mo. 52, 165 S.W. 773.]
The proviso to section 7239, supra, is as follows: "Provided, that for the purpose of determining the fact of whether or not any town shall be governed by the provisions of this section, such body having legislative functions therein may, under an ordinance thereof, take a census of the inhabitants of such town, and the result of such census shall be entered upon the journals or records thereof, and such entry, or a certified copy thereof, shall be proof of such fact, and shall be filed with the clerk of the county court of the county in which such town is situated."
It appears that during the year 1913 an ordinance was enacted by the board of aldermen of the city of Elvins, providing for the taking of a census of the inhabitants thereof; which census was taken by an enumerator, one C. R. Huddleston, appointed therefor, pursuant to the provisions of said ordinance, and the same, together with sworn "return" of such enumerator, setting forth the result of said census was filed with the clerk of said city. The result of the census thus taken showed the city of Elvins to have a population of 2521 inhabitants. And thereafter, on September 4, 1913, as appears by the record of the meeting of the board of aldermen of that day, the "census report filed by C. R. Huddleston, showing 2521 was officially accepted by board;" and the certified copy of said "return" of such census enumerator, theretofore filed with the city clerk, was filed with the clerk of the county court.
It appears that, at the time of the application to this court for a writ of prohibition, the county court had assumed jurisdiction over the subject-matter of the local option petition before it, and was proceeding therewith in disregard of the census taken by the city of Elvins as above mentioned, having inquired into certain charges of illegality and fraud in the taking thereof, and having found that such census "was false, fraudulent and void, and not based upon any proper and legal list, count or enumeration of the inhabitants of the city of Elvins."
The question, therefore, before us is whether or not the county court, in so proceeding, was exceeding its jurisdiction in the premises.
As to the duty of respondents to accept the census of the city of Elvins, taken and adopted by the board of aldermen thereof, as aforesaid, and to proceed accordingly in ordering the election, we have little doubt. Respondents contend that such census was fraudulently taken for the purpose of preventing the city of Elvins from being included within the remainder of the county (outside of Farmington) in the holding of the local option election; that it is a mere pretended census or enumeration of the inhabitants of such city, and was fraudulently "padded" with the names of persons not inhabitants thereof. Likewise the regularity of the proceeding had by the board of aldermen of the city of Elvins in respect thereto is assailed. But it appears that the census was taken under and by virtue of an ordinance of the city of Elvins, and, when taken, was duly reported to the board of aldermen and by the latter accepted and adopted as and for a proper census of said city, and that the result thereof was entered upon their records, and the same duly certified to the clerk of the county court, in accordance with the provisions of section 7239, supra.
The county court had before it the record of the proceedings of the board of aldermen relative to the census in question. It cannot be doubted that the ordinance authorizing and providing for the taking thereof is valid upon its face, and within the authority conferred by section 7239, supra. The statute is general in its terms and quite indefinite as to the character of the census to be taken or the method to be pursued in the taking thereof. [See Flowers v. Smith, 214 Mo. 98, 112 S.W. 499.] It merely provides that the body having legislative functions in such city may, under an ordinance, take a census; and requires that the "result" thereof be entered upon its records and filed with the clerk of the county court.
In the case before us, the entry in the journal of the board of aldermen showing the result of such census is quite informal, reciting merely that the "census report filed by C. R. Huddleston, showing 2521 was officially accepted by board." However, this appears to be a substantial compliance with the statute in this regard; the evident purpose of this requirement of the statute being to afford proof that the legislative body of the city had acted upon and adopted the enumeration taken pursuant to the ordinance, as and for an official census of the city.
The statute provides that such census may be taken "for the purpose of determining the fact of whether or not any town shall be governed by the provisions of this section;" and that the entry of the result of such census in the records of the city's legislative body shall be proof of such fact.
Proof is defined to be: "The effect of evidence; the establishment of a fact by evidence." [See Black's Law Dictionary (2 Ed.), "Proof."] The statute does not declare that such entry shall be evidence merely of the fact of the population of a city or town, to determine whether or not it shall be governed by the provisions of the section, nor prima facie proof thereof, to be overthrown by the effect of other evidence adduced. And although it is not specifically declared that such shall be conclusive proof thereof, a reasonable interpretation of the statute would seem to be that the Legislature intended to make such entry, or a certified copy thereof, binding upon the county court in a proceeding of this character, precluding it from going back of the same, where the city, pursuant to the statute, has caused a census to be taken by virtue of an ordinance, and adopted the same, and the result thereof has been entered upon the records of its legislative body.
Again the taking of such census was also within...
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