State ex rel. Weber v. Tucker

• Decision Date: 20 December 1888
• Citation: 32 Mo.App. 620
• Parties: STATE OF MISSOURI ex rel. GEORGE WEBER, Appellant, v. LEE H. TUCKER et al., Respondents.
• Court: Kansas Court of Appeals

32 Mo.App. 620

STATE OF MISSOURI ex rel. GEORGE WEBER, Appellant, v. LEE H. TUCKER et al., Respondents.

Court of Appeals of Missouri, Kansas City.

December 20, 1888

Appeal from Saline Circuit Court. --HON. RICHARD FIELD, Judge.

REVERSED AND REMANDED (with directions ).

Statement of case by the court.

The relator, on the third day of January, 1888, presented to the county court of Saline county his petition and application to keep a dramshop at his stand or place of business in block 28, of the city of Marshall, in said county, whereby he prayed the court to grant him a license to keep a dramshop at his stand or place of business; which petition contained the proper names subscribed thereto of two-thirds of the tax-paying citizens of block 28 of the city of Marshall, as shown by the last previous annual assessment of said city asking the court to grant the petitioner a license to keep a dramshop, as provided by " an act entitled an act to amend sections 5438, 5440, 5441, 5442, 5456, 5464; to repeal section 5462 of chapter 98, of the Revised Statutes of the state of Missouri, entitled ‘ of dramshops,’ and adding three new sections thereto; " which said act was passed by the general assembly of the state of Missouri, and approved March 24, 1883. Sess. Acts 1883, pp. 86, 87, 88 and 89. The county court refused to grant the relator a license in response to his application and petition and dismissed the same, whereupon the appellant brought this suit in the circuit court of Saline county by mandamus, to compel the county court to grant him a license as a dram-shop keeper, as aforesaid. That, upon the petition filed herein for a mandamus, the judge of the circuit court of said county granted the alternative writ, therein directing the said county court to grant the relator a license to keep a dramshop at his stand as aforesaid, or show cause why they did not, before the court, at the next February term, 1888 thereof. To which alternative writ respondents made return and alleged therein that the relator ought not to have the relief prayed for, for the reason that prior to the filing of his petition and application to keep a dramshop as aforesaid there had been had and held in the city of Marshall aforesaid, an election to determine whether or not spirituous or intoxicating liquors should be sold within the limits of said city of Marshall, under and according to the provisions of an act entitled " an act to provide for the preventing of the evils of intemperance, by local option, in any county of this state and in cities of twenty-five hundred inhabitants or more, by submitting the question of prohibiting the sale of intoxicating liquors to the qualified voters of such county or city; to provide penalties for its violation, and for other purposes," approved April 5 1887 (Laws Mo. 1887, pp. 179, 180, 181 and 182), which said election was held in the city of Marshall (a city having more than twenty-five hundred inhabitants), on Tuesday, October 11, 1887, and that the result of said election was as follows: That there were cast for the sale of intoxicating liquors three hundred and twenty-four votes, and that there were cast against the sale of intoxicating liquors three hundred and fifty-three votes, and that the majority of the votes cast at said election was twenty-nine against the sale of intoxicating liquors. The relator filed an answer admitting an election was held in the city of Marshall, but denied the validity of such election for the following, among other reasons: (3) Because no notice of such election so held on the eleventh day of October, 1887, was given by publication in any newspaper published in the county of Saline, or in said city of Marshall, as required by law, and because no notice was published in such newspaper for four consecutive weeks, as required by said act, and because no notice of the result of such election was ever published in any newspaper for four insertions as required by law. Upon the issues thus made up the parties went to trial. It was admitted at the trial of this cause that the relator had complied in every respect with the law in relation to the licensing of dram-shop keepers in cities of over twenty-five hundred inhabitants, and that he was a person of good character, and that his application and petition was signed by more than two-thirds of the resident taxpayers of the block in said city where the proposed dramshop was to be kept, as shown by the last previous annual assessment of said city; that the city of Marshall was a city of the fourth class, having over twenty-five hundred inhabitants; and it stands admitted by the pleadings that the relator is entitled to the relief prayed for, unless the alleged election relied on by the return of respondents to the alternative writ of mandamus herein, is a valid election, and prohibits the county court of Saline county from granting a license under the existing laws regulating the licensing of dramshops. Notice of the election was published in the " Saline County Progress," that the first insertion was on September 17, the next on September 24, the next on October 1, and the fourth and last on October 8, 1887, and that the election was held on Tuesday, October 11, 1887. The court held the election valid and dismissed relator's petition.

Leslie Orear and Davis & Wingfield, for the appellant.

(1) The petition read in evidence, by the respondents, was not sufficient in law to confer upon the mayor and board of aldermen of the city of Marshall, jurisdiction to make an order for an election to be held in such city, to be voted at by the qualified voters, to determine whether or not spirituous or intoxicating liquors should be sold within the corporate limits of said city. The petition and records of the city must show the jurisdictional facts before a valid order for an election can be made by the body having legislative functions in said city. County v. Cowan, 54 Mo. 234; Whitely v. County, 73 Mo. 30; Zimmerman v. Snowden, 88 Mo. 218; Laws 1887, p. 179 sec. 2. The statute under which the election in controversy was held confers special jurisdiction upon the mayor and board of aldermen of the city to perform the powers therein conferred, and all the facts showing jurisdiction must affirmatively appear on the record or journal of that body. City v. Gleason, 93 Mo. 33, and cases cited; Blize v. Castlio, 8 Mo.App. 290. Nor can the defect in such record or journal be supplied by nunc pro tunc entries. Blize v. Castlio, 8 Mo.App. 290. Nor is parol evidence admissible to vary, contradict, or supply the record of the legislative body of a city of the fourth class, in a proceeding of this character. Such record cannot be collaterally attacked. R. S. 1879, sec. 4950. (2) The conditions of the statute authorizing an election have not been complied with, in that the body having legislative functions in the city of Marshall did not act on the petition, and made no order with reference thereto. The body having legislative functions in a city of the fourth class is the mayor and board of aldermen. R. S., secs. 4940, 4948, 4949, 4950, 4965. The board of aldermen alone could not legally make an order for the election provided for by the local option act, and the election could be legally ordered only by an ordinance passed in regular form, or by resolution duly passed by the board, and approved by the mayor. The evidence shows that the mayor gave no sanction to the order for an election made by the board, and the election is, therefore, illegal and invalid, Local Option Act, Laws of Mo. 1887, p. 180, sec. 2; Thrush v. Cameron, 21 Mo.App. 394; Thompson v. Boonville, 61 Mo. 282; Saxton v. Beach, 50 Mo. 488; Saxton v. St. Joseph, 60 Mo. 153; Ex rel. Rafter, 89 Ill. 337; St. Louis v. Gleason, 93 Mo. 33; Dillon on Mun. Corp. [2 Ed.] sec. 245. (3) The election provided for under this act is a special election,--the time and place must be fixed by the mayor and aldermen, in the manner provided by the statute; and its validity depends upon its being legally called and upon legal notice being given by publication for four consecutive weeks, before said election could be legally held. McCrary on Elections [3 Ed.] sec. 145; Cooley's Const. Lim. sec. 603; George v. Township, 16 Kan. 72; Stevens v. People, 89 Ill. 337. (4) No notice of the election in controversy was given for the statutory period required and the election is, therefore, illegal. The statute requires the notice of such election to be published for four consecutive weeks, and the last insertion shall be within ten days next before the election. The first insertion of the notice read in evidence was made in the " Saline County Progress," on the seventeenth day of September, 1887, and the fourth insertion on the eighth day of October, 1887, and the election in controversy was held on the eleventh day of October, 1887, thereby giving only twenty-four days notice before holding said election, and said notice being for a less time than the period required by the statute, the election can have no validity or binding force. McCrary on Elections [3 Ed.] sec. 145, et seq.; Cooley's Const. Lim. sec. 603; Cooley on Tax. 245, 249, and notes; Haywood v. Russell, 44 Mo. 252; Bank v. Stumpf, 73 Mo. 314; Early v. Doe, 16 How. 610; Bank v. Bank, 89 N.Y. 397; Kap Meier v. O'Neil, 47 Wis. 593; Collins v. Smith, 57 Wis. 284; Ward v. Walters, 63 Wis. 39; Stanford v. Warn, 27 Cal. 171; Beal v. Ray, 17 Ind. 554; People v. Martin, 12 Cal. 409; Haddax v. County, 79 Va. 677; Barry v. Lank, 5 Cald. 588; In matter White Hall, 47 Pa.St. 156; Hoover v. Mear, 16 Kan. 11; George v. Oxford Twp., 16 Kas. 72; Reed v. Sexton, 20 Kas. 195; Stephens v. People, supra. A week is a definite period of time, commencing on Sunday and ending on Saturday,...