State ex rel. Fahrman v. Ross

• Decision Date: 08 January 1912
• Citation: 143 S.W. 502
• Parties: STATE ex rel. FAHRMAN v. ROSS et al.
• Court: Missouri Court of Appeals

143 S.W. 502

STATE ex rel. FAHRMAN v. ROSS et al.

Springfield Court of Appeals. Missouri.

January 8, 1912.

1. INTOXICATING LIQUORS (§ 37)—LOCAL OPTION ELECTION—CONTEST—STATUTORY PROVISIONS—JURISDICTION.

Rev. St. 1909, § 7242, which provides that the result of a local option election may be contested, in the same manner as that provided by law for the contest of the elections of county officers by any qualified voter of the municipality in which it was held, by an action to contest brought against the municipal body or the county holding such election, implies that the contestant is required to proceed in the same court, as well as to follow the same procedure as in contests of election of county officers, and hence is not objectionable on the ground that it does not indicate what court shall have jurisdiction.

2. ELECTIONS (§ 298)—CONTESTS—JURISDICTION.

The power to determine election contests unless restricted carries with it jurisdiction to hear and determine every possible objection which may be urged against the validity of the election itself, or the correctness of the declared result thereof.

3. MANDAMUS (§ 3)—EXISTENCE OF OTHER REMEDY—ELECTIONS—REMEDY BY STATUTE.

Rev. St. 1909, § 7242, which provides that a local option election and the result thereof may be contested, in the same manner as that provided by law for the contest of the election of county officers, by any qualified voter of the municipal body in which the election was held by an action to contest brought against the municipal body or the county holding the election, does not exclude the remedy by mandamus as to such matters as show the election to have been void, or that no election was in fact held.

4. INTOXICATING LIQUORS (§ 37)—LOCAL OPTION ELECTION—CONTEST—STATUTORY PROVISIONS.

Rev. St. 1909, § 7242, which provides that & local option election or the result thereof may be contested, in the manner provided for contests of the election of county officers, by an action by qualified voters brought against the municipal body or the county holding the election, affords a remedy as to questions touching the regularity of the election and the correctness of the declared result that could not be reached in other proceedings, but did not exclude any other remedy then open.

5. INTOXICATING LIQUORS (§ 29)—LOCAL OPTION ELECTION—PROCEEDINGS—JURISDICTION.

Under Rev. St. 1909, §§ 7239, 7240, providing that on the presentation of a proper petition a local option election should be ordered held in such city and notice thereof given by publication in a newspaper, etc., jurisdiction to hold such an election rests on a proper petition, an order for the election and notice thereof, and up to this point all specific provisions of the statute are mandatory, and require substantial compliance therewith.

6. COURTS (§ 95)—DECISIONS OF OTHER STATES—CONSTRUCTION OF STATUTES.

In the construction of a statute, the decisions of the other states are valuable only in so far as they construe analogous or similar provisions.

7. ELECTIONS (§ 41)—CONDUCT OF ELECTION —TIME AND PLACE.

It is a general rule that time and place are regarded as the substance of every election, and no body, having the duty to call and give notice of an election, can disregard such rule; nor would a statute be of any force which would ignore it.

8. INTOXICATING LIQUORS (§ 33)—LOCAL OPTION ELECTION—NOTICE—DESIGNATION OF "POLLING PLACE"—"PLACE OF ELECTION" —"PLACE."

Under Rev. St. 1909, §§ 7239, 7240, relating to local option elections and to the order and notice of election and providing that, on proper petition, an election shall be ordered held and a notice thereof given by publication in a newspaper, etc., without expressly requiring the designation of polling places, the jurisdictional notice of an election is a notice giving the date and place on which it is to be held, and the naming of the place is satisfied by naming the city or territory in which it is to be held, as the term "place" has many meanings and is synonymous with "town" or "city" or a "certain territory," the term "polling places" not being synonymous with, "place of election."

9. INTOXICATING LIQUORS (§ 34)—LOCAL OPTION ELECTION—POLLING PLACE—SELECTION BY CITY MARSHAL.

Rev. St. 1909, § 7239, relating to local option elections in cities of 2,500 inhabitants or more, provides that such elections shall be conducted in accordance with the laws and ordinances governing municipal elections. Section 9145, relating to city elections in cities of the third class, provides that the polling places for all elections in such cities shall be selected and specified by ordinance or otherwise, and that all elections shall be held under the general election laws of the state, and all duties to be performed by the sheriff under the state election laws shall be performed by

the marshal in city elections. Section 5803 of the state election law provides that, if the court fails to designate the place of holding the election, it shall be the duty of the sheriff to fix the same. An ordinance of Webb City made it the duty of the marshal to select the polling places under the direction of the mayor. Held, that either under the statutes or the ordinance the city marshal was authorized to select the polling places in a local option election.

10. INTOXICATING LIQUORS (§ 33)—LOCAL OPTION ELECTIONS—ORDER AND NOTICE OF ELECTION—USUAL POLLING PLACES.

The order for notice of local option election under Rev. St. 1909, §§ 7239, 7240, which do not require that such notice designate the polling places, recited that the election would be held at the "usual polling places," but there were no usual polling places, the usual practice being to select any place in each ward that could be secured, and the same place was not secured in all elections. Held, in mandamus to contest the validity of the election, in which there was no evidence of any fraud or that any voters were misled, that, as the statement was not required by law and as compliance therewith was impossible, the recital was surplusage not invalidating the election.

11. INTOXICATING LIQUORS (§ 33)—LOCAL OPTION ELECTION—ORDER AND NOTICE OF ELECTION—ORDINANCE.

A city ordinance in force at the time of a local option election provided that the mayor should by proclamation give at least 10 days notice of the time, places, and purpose of holding an election, and that such notice should be published. The original notice or proclamation did not designate the polling places further than to say that the election would be held "at the polling places in the various wards where city elections are usually held." Rev. St. 1909, § 7239, relating to proceedings on petition for a local option election, provides what notice should be given. Held that, although the ordinance was not strictly complied with, it was mere irregularity, not affecting the validity of the election.

12. INTOXICATING LIQUORS (§ 33)—LOCAL OPTION.

It is beyond the power of a city council to require by ordinance any notice of a local option election additional to that provided by Rev. St. 1909, § 7239, relating to such elections in cities of the third class.

13. INTOXICATING LIQUORS (§ 33)—LOCAL OPTION ELECTION—ORDER—NOTICE OF ELECTION—FORM OF BALLOT.

Under Rev. St. 1909, § 7241, which provides that all persons voting at an election held under the provisions of this article who are against the sale of intoxicating liquors shall have written or printed on their ballots "Against the sale of intoxicating liquors" and all those who are in favor of the sale of such intoxicating liquors shall have written on their ballots "For the sale of intoxicating liquors," it is not necessary that the notice for an election specify the form of the ballot to be used.

14. INTOXICATING LIQUORS (§ 35)—LOCAL OPTION ELECTION—CANVASS AND PUBLICATION OF RESULT.

Rev. St. 1909, § 7239, provides that a local option election shall be conducted and the returns made and the result ascertained in accordance with the laws and ordinances governing municipal elections in cities of the third class, and that the result shall be entered upon the city records. Section 9145 provides that the manner of making returns of such elections shall be prescribed by ordinance. An ordinance of Webb City provides that at the meeting of the city council after an election the city clerk shall, in the presence of the council, open the election returns, and that the council thereupon shall determine the result of the election. Held, that a canvass and return of the election by a committee of the council tabulating the results and whose report was adopted by the council and entered in the city records was a sufficient compliance with the statute.

15. EVIDENCE (§ 83)—PRESUMPTIONS—PERFORMANCE OF OFFICIAL DUTY.

Where there is nothing in the record to show how or by whom the returns of a local option election in a city were opened, the court will assume that the clerk opened them in the presence of the council as required by ordinance.

16. INTOXICATING LIQUORS (§ 36)—LOCAL OPTION ELECTION—CANVASS AND PUBLICATION OF RESULT—CONTEST.

The failure of the body charged with the duty of ascertaining and publishing the result of a local option election to properly discharge its duty does not render the election void nor destroy its force until the lapse of so great a length of time that it would be unreasonable to permit a correction thereof.

Appeal from Circuit Court, Jasper County; B. G. Thurman, Special Judge.

Action by the State of Missouri, on the relation of William Fahrman, for mandamus against J. C. Ross and others, as Judges of the Jasper County Court, to compel them to issue a dramshop license to relator, on the ground that a local option election was void. Writ of mandamus denied, and relator appeals. Affirmed.

M. R. Lively, for appellant. W. N. Andrews, Pros. Atty., A. M. Baird, Asst. Pros. Atty., and W. R. Robertson, for respondents.

COX, J.

Respondents are judges of...