State v. Brown

• Decision Date: 31 March 1908
• Citation: 130 Mo. App. 214,109 S.W. 99
• Parties: STATE v. BROWN.
• Court: Missouri Court of Appeals

109 S.W. 99

130 Mo. App. 214

STATE v. BROWN.

St. Louis Court of Appeals. Missouri.

March 31, 1908.

Rehearing Denied April 14, 1908.

1. INTOXICATING LIQUORS — LOCAL OPTION ELECTION — NOTICE — PUBLICATION.

Under Rev. St. 1899, § 3029 (Ann. St. 1906, p. 1736), providing that notice of a local option election shall be published in a newspaper designated by the county court for four consecutive weeks, the last insertion to be within 10 days next before such election, insertion for four successive weeks in a weekly newspaper, the last insertion being 8 days before the election, is sufficient.

2. APPEAL — PRESUMPTION — DISCHARGE OF DUTY BY OFFICERS.

That the notice of a local option election, required by Rev. St. 1899, § 3029 (Ann. St. 1906, p. 1736), to be published, was a copy of the order of the county court for an election, certified by the clerk of such court, will be assumed on appeal, in the absence of the notice from the record, under the rule that right action is to be presumed in favor of officers in the discharge of their official duties.

3. INTOXICATING LIQUORS — ADOPTION OF LOCAL OPTION — QUESTIONS FOR COURT.

Whether local option has been adopted is a question for the court rather than for the jury.

4. SAME — SALE — EVIDENCE.

That the sale of liquor, in violation of the local option law, was by defendant, held sufficiently shown by the evidence.

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

W. T. Brown appeals from a conviction. Affirmed.

Clay & Sheppard, for appellant. Jos. S. Long, for the State.

BLAND, P. J.

The appeal is from a conviction of defendant for an illegal sale of intoxicating liquor. The information was filed before a justice of the peace in McDonald county, and charged that defendant, on September 8, 1905, sold intoxicating liquor in McDonald county in violation of the local option law, which the information alleged had been adopted in said county and was in force therein. In due course the cause was appealed to the circuit court, where on a trial de novo defendant was found guilty and his punishment assessed at a fine of $300. Various errors are assigned as having intervened on the trial.

1. First, it is contended that the notice of the local option election was insufficient under the statute, and for this reason the election was void. The county court ordered the election to be held on April 9, 1904, and ordered that notice of the election be published in the Pineville Herald, a weekly newspaper printed and published in McDonald county. The fact is uncontroverted that the notice appeared in the designated paper, the Pineville Herald, for four consecutive weeks, namely, March 11, 18, 25, and April 1, 1904. Excluding March 11th, the date of the first insertion, and including the day of the election, April 1st, 29 days, or four weeks and one day, intervened between the publication of the notice and the day of the election, and less than 10 days between the date of the last insertion of the notice and the day of the election. The statute (Rev. St. 1899, § 3029 [Ann. St. 1906, p. 1736]) provides that the "notice shall be published in such newspaper (designated by the county court) for four consecutive weeks, and that the last insertion shall be within 10 days next before such election." This provision has been repeatedly construed to mean that there shall be 28 days' notice of the election, and that a notice which allows a less number of days is insufficient. In re Wooldridge, 30 Mo. App. 612; State ex rel. v. Tucker, 32 Mo. App. 620; Leonard v. Saline Co. Court, 32 Mo. App. 633; State v. Kaufman, 45 Mo. App. 656; State v. Kampman, 75 Mo. App. 188. As stated, 29 days intervened between the first publication of the notice and the day of the election, and we think the notice was published in strict compliance with the statute. But we are cited by defendant to the case of State v. Dobbins, 116 Mo. App. 29, 92 S. W. 136, wherein the Kansas City Court of Appeals, in an opinion written by Judge Ellison, held, in effect, that if the notice is published in a weekly paper, there should be five insertions, and that a publication in four consecutive weekly issues of the paper would not meet the requirements of the statute. The facts in judgment in that case were: The notice of the election was ordered to be published in two weekly papers. In one the notice was inserted August 4th, 11th, 18th, and 25th, and September 1st. In the other it was inserted August 3d, 10th, 17th, and 31st. The last insertion in each was within 10 days of the election. The fourth insertion was more than 10 days before the election. Hence it was essential to the validity of the election that a fifth insertion be made. But we are unable to concur in the reasoning of our learned Brother Ellison, by which he reaches the conclusion that five insertions in a weekly newspaper are necessary to give 4 weeks' or 28 days' notice; nor do we think his reasoning is supported by the case cited and relied on by him, namely, State ex rel. v. Tucker, supra. The time intervening between the date of the first insertion of the notice in that case and the election was but 24 days. On this state of facts Judge Ellison, at page 628 of 32 Mo. App., says: "Does the law require a notice of 4 weeks, of 7 days each, or does it only require a sufficient period of time to cover four consecutive weekly insertions, though such time be less than 28 days? In other words, must there be four weeks' notice of the election, or a less time? Our answer is that there must be four weeks'...