State v. Bird

• Decision Date: 15 November 1904
• Citation: 83 S.W. 284,108 Mo. App. 163
• Parties: STATE ex rel. BELL et al. v. BIRD et al.
• Court: Missouri Court of Appeals

83 S.W. 284

108 Mo. App. 163

STATE ex rel. BELL et al. v. BIRD et al.

St. Louis Court of Appeals. Missouri.

November 15, 1904.

INTOXICATING LIQUORS — LOCAL OPTION ELECTIONS — JURISDICTION OF COUNTY COURT — ORDERS — RECITALS — AMENDMENTS NUNC PRO TUNC.

1. Rev. St. 1899, § 3027, which requires the county court of any county to order a local option election on application signed by one-tenth of the qualified voters of the county, the court must find that a petition was so signed before it can order the election, which finding should be recited in the order, so as to show jurisdiction, and an order reciting that the petition was signed by over a designated number of citizens and qualified voters is void.

2. Where the clerk erred in entering of record an order made by the county court directing the holding of a local option election, the order entered by the clerk might be amended nunc pro tunc after the election by the production of the identical order made by the court and filed by the clerk, and which contained all the recitals necessary to authorize the election so as to make the election valid.

Application for a mandamus by the state, on the relation of O. C. Bell and others, against John A. Bird and others, to compel respondents, as justices of the county court, to issue a dramshop license to relators. Peremptory writ denied.

Dodge & Mulvihill and Jas. W. Moore, for petitioners. Russell & Deal, for respondents.

BLAND, P. J.

Ten days prior to the first day of the regular May term, 1904, of the Mississippi county court, the relators filed with the clerk of the circuit court their petition for a license to keep a dramshop in the city of Charleston, a city of the fourth class, in said county, containing over 2,000 and less than 2,500 inhabitants. At the May term the county court took up the petition and made the following order thereon: "In the matter of petition of O. C. Bell, B. E. Finley, and Wm. Langston to keep a dramshop in block (1) one, original town of Charleston, the matter is taken up, and the court finds that Charleston is a town of more than two thousand inhabitants; that O. C. Bell, B. E. Finley, and Wm. Langston are law-abiding, assessed, taxpaying, male citizens above the age of twenty-one years; and that said petition is signed by more than two-thirds of the assessed, taxpaying citizens and guardians of minors of the city of Charleston owning property in said original block one; and after due consideration the court refuses the prayer of the petitioners because of the adoption of the local option law at an election held on the 11th day of December, 1903." After this order was made, the petitioners presented their petition to this court asking that we, by writ of mandamus, compel the defendants, as justices of the county court, to issue a license to relators to keep a dramshop, as prayed for in their petition. An alternative writ was issued and served on the defendants. They made return to this writ, setting up that the court made the following order upon a proper petition: "Now on this 4th day of November, 1903, come J. T. Heggie, John M. Rowe, C. S. Reynolds, Thomas Vowels, John A. Millar, A. J. Rushing, John Lett, and others, and present their petition to the court, praying the court to order an election to be held in the county at the usual voting precincts for holding any general election for state officers to determine whether or not spirituous and intoxicating liquors, including wine and beer, shall be sold within the limits of this, Mississippi county. Upon examination of said petition presented and the pollbooks of the last previous general election, the court finds that said petition is signed by more than one-tenth of the qualified voters of the county who reside outside of the corporate limits of any city or town having, at the time of such petition, a population of twenty-five hundred inhabitants or more, who are qualified to vote for members of the Legislature. It is therefore ordered by the court that a special election be held in this county at the usual voting precincts for holding any general election for state officers, within forty days from the 4th day of November, 1903, to wit, on Friday, December 11, 1903, for the purpose of determining whether or not spirituous and intoxicating liquors, including wine and beer, shall be sold within the limits of this, Mississippi, county. It is further ordered by the court that notice of the said election herein ordered be given by publication in...