State ex rel. Davis v. Baldwin

• Decision Date: 07 November 1904
• Citation: 83 S.W. 266,109 Mo.App. 573
• Parties: STATE ex rel. ASA DAVIS, Appellant, v. J. H. BALDWIN et al., Respondents
• Court: Kansas Court of Appeals

83 S.W. 266

109 Mo.App. 573

STATE ex rel. ASA DAVIS, Appellant, v. J. H. BALDWIN et al., Respondents

Court of Appeals of Missouri, Kansas City

November 7, 1904

Appeal from Polk Circuit Court.--Hon. Argus Cox, Judge.

REVERSED AND PEREMPTORY WRIT ORDERED.

Cause reversed.

C. H Skinker and Rechow & Pufahl for appellant.

(1) There was no order for an election until the pretended nunc pro tunc entry, which was made on the day of the trial in the circuit court; to-wit, on the 24th day of August, 1904. (2) There was no notice of the election. The pretended notice is no notice. The publication purports to be a copy from the record of an order calling an election, when in fact no such record existed until the pretended nunc pro tunc entry made on the 24th day of August. (3) The pretended notice of election in the issue of June 23 is not signed by any one has no certificate or seal attached to it, and is not dated and is void. Commonwealth v. Barrett (Ky.), 17 S.W 336; Swenson v. McLaren (Tex.), 21 S.W. 300; 6 Am. and Eng. Ency. of Law (1 Ed.), under head "Elections" VI; Wade on Notice, secs. 1053, 1062 and 1107; Anderson's Law Dictionary, p. 820, number "2" under word "Proclamation"; Bohn v. Devlin, 28 Mo. 319; McPike v. Pen, 51 Mo 64; Cella v. Schnairs, 42 Mo.App. 316; Towner v. Remick, 19 Mo.App. 205; Schulenberg v. Boscan, 38 Mo.App. 189. (4) After the pretended notice had been once published in the issue of June 23 there was no authority to change it and no one had any right or authority to add the certificate thereto. Wade on Notice, sec. 1954. But in the case at bar there is no evidence by whom or at whose suggestion such certificate was added or that it was done by any legal authority. (5) It required twenty-eight days' notice. State ex rel. v. Tucker, 32 Mo.App. 620; Leonard v. County Court, 32 Mo.App. 633; Bean v. County Court, 33 Mo.App. 642; State v. Kaufman, 45 Mo.App. 659; State ex rel. v. Martin, 83 Mo.App. 57; Young v. Downey, 150 Mo. 330.

L. Cunningham and John S. Haymes for respondents.

(1) Mandamus will only issue where there is a clear legal right. 14 Am. and Eng. Ency. of Law, (1 Ed.), 94; Mansfield v. Fuller, 50 Mo. 338; Betts v. Megown, 89 Mo. 156. (2) The endorsement on the petition, the entry on the minute book of the county court, and the notice of election (which is said to be a copy of the record) were more than sufficient to authorize the making of the nunc pro tunc order of election, if indeed any further order was necessary. Corning v. Groomer, 110 Mo. 632. When this entry was made it related back to the making of the original entries. Gamble v. Daugherty, 71 Mo. 599. (3) The notice of election, in form, was sufficient to fully notify all qualified voters that the election had been called, and although in its first publication it was neither certified to or signed, we submit that the election is not void because of the want of these. Block v. Railroad, 18 Wis. 208; Daugherty v. Brown, 91 Mo. 26; Warren v. Gibson, 40 Mo.App. 470; People v. Carpenter, 24 N.Y. 86.

OPINION

BROADDUS, J.

This is a mandamus proceeding to compel respondents, the judges and clerk of the county court of Polk county, to issue to appellant a dramshop license for the second period of six months upon a petition filed with the said court January 1, 1904, upon which the first six months' license was issued February 10 to keep a dramshop in lot 3, block 20 in the city of Bolivar.

Upon the trial it was admitted that relator was entitled to such license unless the provisions of article 3, chapter 22, Revised Statutes 1899, known as the local option law, had been legally adopted and were in force in the county at the time of the application therefor and the trial of the cause, the respondents in their return to the writ basing their refusal to grant the license on that ground. The relator denied that the provisions of the statute referred to had been legally adopted and contended that they were therefore not in force in that county.

The election was held on the 23d day of July, 1904, and the board of canvassers found that the said local option law had been adopted by the requisite majority. Relator contends that said election was void for the reason that the statute was not complied with in the proceedings leading up to said election. The first notice was published on June 23 of said year and was as follows:

"NOTICE OF ELECTION.

"Notice of election to determine whether spirituous and intoxicating liquors, including wine and beer, shall be sold within the limits of Polk county, in the State of Missouri.

"Be it remembered that on Tuesday, the 14th day of June, 1904, the same being the second day of the June adjourned term of the county court of Polk county, State of Missouri, among other proceedings there was a petition filed and received by the said county court signed by one- tenth of the qualified voters of said Polk county, Missouri, qualified to vote for members of the Legislature, for an election to be held in said Polk county, Missouri, to determine whether spirituous and intoxicating liquors, including wine and beer, should be sold within the limits of said Polk county, Missouri, according to the provisions of section 3027 of the Revised Statutes of Missouri 1899. And on the 15th day of June, 1904, the same being the third day of the June adjourned term of the county court of said Polk county, Missouri, among other proceedings the following were had: The county court having seen and heard the said petition, find that said petition is signed by one-tenth of the qualified voters of said Polk county, Missouri, qualified to vote for members of the Legislature. And it is therefore ordered by the said county court that said election be held in said Polk county, Missouri, at the usual voting precincts for holding any general election for State officers, under the provisions of section 3027 of the Revised Statutes of Missouri 1899, on Saturday, the 23d day of July, 1904, to determine whether spirituous and intoxicating liquors, including wine and beer, shall be sold within the limits of said Polk county, Missouri, and that the tickets to be voted by the voters at said election shall have written or printed on them the words: 'Against the sale of intoxicating liquors;' 'For the sale of intoxicating liquors;' ('Erase the clause you do not want').

"It is further ordered that notice of said election be given by publication in the Boliver Free Press, a newspaper published in said Polk county, and in the Bolivar Herald, for four consecutive weeks."

After the publication on June 23, the notice was also published on June 30, July 7, 14 and 21, but in these subsequent publications the following certificate was attached:

"State of Missouri, County of Polk, ss.:

"I S. G. Kelley, Clerk of the county court in and for said county, hereby certify that the above is a true copy of the original...