State v. Bench

• Decision Date: 31 October 1878
• Citation: 68 Mo. 78
• Parties: THE STATE, Appellant, v. BENCH.
• Court: Missouri Supreme Court

68 Mo. 78

THE STATE, Appellant,

v.BENCH.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Livingston Circuit Court.--HON. E. J. BROADDUS, Judge.

J. L. Smith, Attorney-General, for the State.

Davis & Wait for respondent.

1. Each township in counties having adoped township organization, has the power to purchase and hold such personal property as may be necessary to the exercise of its corporate and administrative powers and no other. This is a limited power, a prescribed power, and the indictment must show that the property alleged to have been stolen was property which the township could hold and own. Exceptions in the enacting clause must be negatived in an indictment, and the same rule must apply when limited powers are possessed. State v. Shiflett, 20 Mo. 415; State v. Sutton, 24 Mo. 377; State v. Cox, 32 Mo. 566. 2. Townships of counties not having adopted township organization have no legal corporate existence enabling them to hold any property, and no allegation is made in the indictment that Livingston county had ever adopted township organization. A court will take judicial notice of the adoption of township organization in its own counties as a matter of law, but not as a matter of pleading, any more than they would if an indictment commenced in the name of a county with no State, either in the caption or body of it.

NORTON, J.

Defendant was indicted in the Livingston circuit court, at its September term, 1877, charged with grand larceny in feloniously taking, stealing and carrying away three pieces of pine lumber, of the value of $11.50, “then and there the property of another, to-wit: the property of Blue Mound township, Livingston county.” A demurrer was filed by the defendant to the indictment, which was sustained, and from this action of the court the State has appealed to this court. It is contended by defendant that the indictment is insufficient, because Blue Mound township, the alleged owner of the things charged to have been stolen, cannot, under the law, be the owner of property, and because it does not allege that said township is in Livingston county, Mo.

In 1873, the General Assembly adopted a “township organization” law, (Acts 1873, p. 97,) in which it is provided that it should be operative in any county when adopted by a majority of the qualified voters of such county at any general election. It is therein provided that in counties adopting the law, each township, as a body corporate, shall have power and capacity “to...