State ex rel. Hemmesmeyer v. Reid

• Decision Date: 29 December 1908
• Citation: 134 Mo. App. 582,114 S.W. 1116
• Parties: STATE ex rel. HEMMESMEYER v. REID et al.
• Court: Missouri Court of Appeals

114 S.W. 1116

134 Mo. App. 582

STATE ex rel. HEMMESMEYER v. REID et al.

St. Louis Court of Appeals. Missouri.

December 29, 1908.

INTOXICATING LIQUORS (§ 33) — LOCAL OPTION — ELECTIONS — NOTICE — PUBLICATION — STATUTES.

Rev. St. 1899, § 3029 (Ann. St. 1906, p. 1736), providing that notice of a local option election shall be given by publication in some newspaper in the county for four consecutive weeks, and such other notice may be given as the county court may think proper, is mandatory as to the publication in some newspaper in the county for the time designated, and the county court may, in its discretion, order the publication of the notice in other papers for the time required, and, where the county court orders the publication of the notice in three newspapers of the county, the notice must be published as ordered, or the election will not be valid.

Appeal from Circuit Court, Lincoln County; J. D. Barnett, Judge.

Mandamus by the State, on the relation of H. Hemmesmeyer, against W. W. Reid and others, to compel respondents to grant to relator a license as a dramshop keeper. From a judgment denying the writ, relator appeals. Reversed and remanded.

R. L. Sutton, for appellant. W. A. Dudley, for respondents.

NORTONI, J.

This is a proceeding by mandamus, seeking to compel the county court of Lincoln county to grant the appellant a license as a dramshop keeper. The circuit court denied the writ, and relator appeals.

The county court of Lincoln county found all of the facts essential to relator's right to have the dramshop license, and that he was entitled, under the mandatory provisions of the statute with respect to dramshops, to have the license awarded upon his payment therefor, etc., unless the local option law is in force in that county, in which event the court would, of course, have no jurisdiction to grant the license even under the mandatory provisions of the dramshop statute. Section 2993, Rev. St. 1899 (Ann. St. 1906, p. 1717). The county court declared the local option law to be in force and denied relator's application for a license. Relator sued out a writ of mandamus in the circuit court, seeking to compel the county court to grant the license, insisting the local option law is not in force for the reason no sufficient notice of the election was given as directed by the county court. The facts stated appear in relator's petition for mandamus and the return thereto. The question for decision in the case is whether or not the publication of notice of the local option election was sufficient.

The statute and pertinent facts with respect to this matter are as follows: The statute concerning notice and the duty of the county court in such cases is as follows: "Notice of such 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 made within ten days next before such election, and such other notice may be given as the county court or municipal body ordering such election may think proper, in order to give general publicity to the election." Section 3029, Rev. St. 1899 (Ann. St. 1906, p. 1736). It will be observed that, in the first instance, the section is mandatory in so far as it concerns the publication of notice in some newspaper in the county for a sufficient length of time therein designated. The county court could have ordered notice to be published in one paper only, and, upon a proper publication thereof for the full period of 28 days, the notice would have been sufficient. It appears the court was not satisfied with this, however, for it ordered other and additional notice. The second provision in the statute with respect to the giving of "such other notice" as the "court * * * may think proper to give general publicity to the election," places the matter of other notice, sufficient to afford proper publicity of the proposed election, within the discretion of the county court. This provision, of course, is not mandatory as it is written. State ex rel. Church v. Weeks, 38 Mo. App. 566. It no doubt becomes...