State v. Bassett

• Citation: 133 Mo. App. 366,112 S.W. 764
• Parties: STATE ex rel. HURST v. BASSETT et al.
• Decision Date: 06 October 1908
• Court: Court of Appeal of Missouri (US)

112 S.W. 764

133 Mo. App. 366

STATE ex rel. HURST v. BASSETT et al.

St. Louis Court of Appeals. Missouri.

October 6, 1908.

1. INTOXICATING LIQUORS — LOCAL OPTION ELECTION—NOTICE.

Where a notice of a local option election, otherwise sufficient, recited that the election was "ordered to be holden" at the usual voting precincts for the holding of any general election of the state officers, except in a certain city, on Wednesday, November 8, A. D. 1905, to determine whether liquor should be sold within the county, outside the city, was not defective for failure to state specifically that on the day in question, the election "would be held."

2. SAME—POLLS—HOURS.

Rev. St. 1899, § 3027 (Ann. St. 1906, p. 1733), provides that a local option election shall be conducted and the results ascertained under the law governing general county elections. Section 6991 (Ann. St. 1906, p. 3408) provides that in general county elections the polls shall be open from 7 a. m. until 6 p. m., unless the sun shall set after 6, when the polls shall be kept open until sunset. Held that, where a local option election notice provided that it should be conducted in accordance with the county election laws, it was not defective for failure to state the hours during which the polls would be open; section 6991 (Ann. St. 1906, p. 3408) fixing such hours, being a part of the notice.

Appeal from Circuit Court, Barry County; F. C. Johnston, Judge.

Certiorari by the state, on the relation of J. B. Hurst, against Hugh Bassett and others. From a quashal of the writ, relator appeals. Affirmed.

R. H. Davis and W. Cloud, for appellant D. H. Kemp, for respondents.

NORTONI, J.

This proceeding was instituted in the circuit court. Relator sued out a writ of certiorari, directing the judges of the county court of Barry county to return into the circuit court a complete transcript of the proceedings had in the county court with respect to the hearing of a petition for, and ordering an election looking to the adoption of, the local option law in the county outside of the city of Monett. Upon a return being made thereto, the circuit court quashed the writ, and relator prosecutes this appeal.

The argument urged against the regularity of the election relates entirely to the sufficiency of the published notice to the effect that an election would be held on a certain day thereafter. It is conceded that the notice was published for a sufficient length of time and in a proper newspaper. The question leveled against its sufficiency relates entirely to the form of expression employed therein; that is to say, it is argued, even though the notice be full and complete in many respects, it is insufficient, in that it fails to say in plain language that an election for the purpose contemplated "will be held" on the date therein mentioned, or employ other appropriate and pointed words to that effect. The county court, in its order of record, directed that the notice should be had and given in the following form, and it was published in a newspaper designated, for a sufficient length of time, precisely as formulated by the court in its order, which is as follows:

"Notice of Special Election.

"Whereas, the county court of Barry county, state of Missouri, convened in regular session at the courthouse in the city of Cassville, in the county of Barry, state of Missouri, on Monday, the 2d day of October, A. D. 1905, ordered a special election submitting to the qualified voters of Barry county, state of Missouri, outside of the corporate limits of the city of Monett, in said Barry county, state of Missouri, a city having a population of twenty-five hundred inhabitants and more at the time of the presentation of the petition herein, to wit, October 2, 1905, as shown by the last national census (and the city of Monett was the only city in Barry county, state of Missouri, having a population of twenty-five hundred inhabitants at the date of filing of the petition herein, to wit, October 2, 1905, and such was so found by the court), the question whether or not spirituous and intoxicating liquors, including wine and beer, shall be sold within the limits of said Barry county, state of Missouri, lying outside of the city of Monett aforesaid, under and by virtue of an act of the Legislature of the state of Missouri, approved April 5, 1887, entitled `An act to provide for the preventing of the evils of intemperance by local option in any county in this state by submitting the question of prohibiting the sale of intoxicating liquors, to the qualified voters of such county, to provide penalties for its violation and for other purposes.'

"And whereas, on the 2d day of October an application by petition, signed by one-tenth and more of the qualified voters of Barry county, state of Missouri, who reside outside of the corporate limits of the city of Monett, in said Barry county, state of Missouri, who are qualified to vote for members of the Legislature in said county and state, was presented to the county court of said Barry county, state of Missouri, praying that a special election be ordered to be held in said Barry county, state of Missouri, to determine whether or not spirituous liquors, including wine and beer, shall be sold within the limits of Barry county, state of Missouri, outside of the city of Monett, in said Barry county, state of Missouri.

"Said petition was duly considered by the county court of Barry county, state of Missouri, and it determined and adjudged that said petition was signed by one-tenth and more of the qualified voters of Barry county, state of Missouri, who reside outside the corporate limits of the city of Monett, who are qualified to vote for members of the Legislature in said Barry county, state of Missouri, and that the city of Monett, in said Barry county, state of Missouri, was the only city in said Barry county, state of Missouri, that contained a population of twenty-five hundred inhabitants and more at the date of the presentation of said petition to the county court of said Barry county, state of Missouri, to wit, October 2, 1905, and that the county court determined the population of the cities of Barry county, state of Missouri, by the last national census, which was the last census taken in said county.

"It was thereupon ordered by the county court of Barry county, state of Missouri, as follows:

"First. That a special election be and the same is hereby ordered to be holden at the usual voting precincts for the holding any general election of state officers, except in the city of Monett, in said Barry county, state of Missouri, a city having a population of twenty-five hundred inhabitants and more as shown by the last national census on Wednesday, November 8, A. D. 1905, for the purpose of determining by the qualified voters of Barry county, state of Missouri, outside of the city of Monett, in said county, whether or not spirituous and intoxicating liquors, including wine and beer, shall be sold within the limits of said Barry county, state of Missouri, lying outside of the corporate limits of the city of Monett in said Barry county.

"Second. That said special election shall be held at the usual voting precincts for holding any general election of state officers in said Barry county, state of Missouri, as follows: [Here follows a list of the voting precincts of the county.]

"Third. That the judges of said special election have been appointed by the county court of Barry county, state of Missouri, by order of record as follows: [Here follows a list of the judges appointed for the several voting precincts.]

"Fourth. All persons voting at said special election 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 favor the sale of intoxicating liquors shall have written or...