State v. Carter

• Citation: 257 Mo. 52,165 S.W. 773
• Parties: STATE ex rel. KEMPER v. CARTER et al.
• Decision Date: 02 April 1914
• Court: United States State Supreme Court of Missouri

165 S.W. 773

257 Mo. 52

STATE ex rel. KEMPER v. CARTER et al.

Supreme Court of Missouri.

April 2, 1914.

1. STATUTES (§ 226)—CONSTRUCTION OF STATUTES ADOPTED FROM OTHER STATES.

In the construction of statutes, as well as constitutional provisions adopted from another state, the construction given to such provision by the state of its origin is very persuasive.

2. STATUTES (§ 35½)—INITIATIVE AND REFERENDUM —FILING OF PETITION—EFFECT.

Under Const. art. 4, § 57, commonly called the "Initiative and Referendum," providing that the legislative authority shall be vested in a legislative assembly, but the people reserve to themselves the power to enact or reject the same at the polls, independent of the legislative assembly, and also reserve the power at their own option to approve or reject at the polls any act of the legislative assembly, that referendum petitions shall be filed with the Secretary of State not more than 90 days after the final adjournment of the session, etc., and that "any measure referred to the people shall take effect and become the law when it is approved by a majority of the votes cast thereon, and not otherwise," all acts subject to the referendum are suspended by the filing of a timely and sufficient petition, and take effect only after an election in which a majority of the votes are cast in favor of the act.

3. STATUTES (§ 35½)—REFERENDUM—STATUTORY PROVISIONS.

The fact that the Secretary of State did not forthwith and immediately, upon the filing of a referendum petition, actually count the names to ascertain whether there was a sufficient number, as required by Rev. St. 1909, § 6748, but at that time merely examined it in a general and supervisory way, and delayed the actual counting until a later date, and the fact that the Attorney General did not, within 10 days, submit a title for the measure, as required by Rev. St. 1909, § 6751, did not defeat the referendum so as to prevent the suspension of the act, since the constitutional provision for the referendum is self-executing, and the statutes passed in aid thereof, though mandatory as to the officials upon whom duties are enjoined, in that compliance therewith may be compelled by the court, yet, as to the rights of the people, they are directory.

4. STATUTES (§ 35½)—INITIATIVE AND REFERENDUM —PETITION.

When a referendum petition, verified as required by Rev. St. 1909, § 6749, purporting to contain the requisite number of names, is presented to the Secretary of State, he must file the same, and leave to the courts to determine, in mandamus proceedings, the determination of questions of latent fraud, forgery, and hermetic illegality.

5. MANDAMUS (§ 176)—RELIEF—LOCAL OPTION ELECTION—CONTEST.

Though the Supreme Court will not entertain jurisdiction of an original mandamus proceeding whose sole object, in the last analysis, is the contest of a local option election, or to order vel non the issuance of a dramshop license, yet where such point was interwoven with other points presented, of which the courts had jurisdiction, it will proceed to determine it so that there may be a complete disposition of the case.

6. INTOXICATING LIQUORS (§ 32)—LOCAL OPTION ELECTION — APPLICATION AND PROCEEDINGS THEREON.

Since Rev. St. 1909, § 7239, providing for local option elections in cities, does not prescribe from what source the city council shall obtain official information as to the requisite number of petitioners required to sign a petition for an election, they must use the latest official sources of information, being responsible only to the courts for a mistake of acting upon a petition containing an insufficient number of names.

In Banc. Mandamus by State of Missouri, on relation of William Kemper, to compel Alex Carter and others, Judges of the County Court of Audrian County, and John B. Graham, Clerk, to renew his dramshop license. Alternative writ quashed, and peremptory writ denied.

Relator, a citizen of the city of Mexico, in Audrain county, Mo., brings this original proceeding by mandamus against respondents, who are, respectively, the three judges and the clerk of the county court of said county, to compel the renewal of his dramshop license, as such renewal is provided for by section 7206, R. S. 1909.

After the filing herein of relator's petition and of the return of the respondents to our preliminary rule, W. C. Hughes, Esq., of the Montgomery county bar, was appointed commissioner to take testimony and make up for us findings of facts. All of this has been done, and the case is before us upon the petition, the return, relator's reply thereto, the evidence taken, and the findings of fact made by the commissioner. All of this presents in a very clear way the facts which are plain, easily found, and not controverted in any material aspect. These facts, so far as they are pertinent to the points mooted upon this record, are about as follows:

The city of Mexico, of which relator is a resident and a citizen, has a population, based upon the last census, of 5,939. It is organized as a city of the third class, and geographically is situated in Salt River township in Audrain county, Mo. There were cast at the last general election for members of the Legislature and other officers, held in 1912 in the city of Mexico, 308 votes, and at the city election in 1911 there were cast therein 342 votes. There were cast in the said November election of 1912 in Salt River township, which township not only includes the city of Mexico, but a large portion of the surrounding country, 1,988 votes. No subsequent vote of the whole city of Mexico of a date later than November, 1912, is shown by the record.

At the regular monthly meeting of the city council of Mexico held on September 22, 1913, a petition was presented, signed by C. A. Witherspoon and 369 others, all purporting to be qualified voters of said city, praying that a special election be held therein under the provisions of our statute commonly called the "Local Option Law," to determine whether or not intoxicating liquor should be sold within the corporate limits of said city. Of these 370 petitioners, at least 264 are shown by the record before us to have been legal signers. Upon the coming in of this petition, the city council made an order providing for a holding of the election prayed for, which order, since it may become pertinent herein, we set out in full:

"Local Option Petition—C. A. Witherspoon et al.

"Be it remembered that on the 22d day of September, 1913, the same being the regular meeting of the city council of the city of Mexico, Missouri, among other proceedings, a petition was filed and received by the city council of the city of Mexico, Missouri, signed by C. A. Witherspoon et al., praying for a special election to be held in said city of Mexico, a city containing twenty-five hundred inhabitants or more, to determine whether or not spirituous and intoxicating liquors, including wine and beer, should be sold within the corporate limits of said city of Mexico, and on the 22d day of September, 1913, the same being a regular meeting of the city council of Mexico, Missouri, the following, among other proceedings, were had and entered of record, to wit:

"Now comes C. A. Witherspoon et al. and present their petition to the city council of the city of Mexico, Missouri, praying for a special election to be held in the city of Mexico, Missouri, as provided by article 3 of chapter 63 of the Revised Statutes of Missouri 1909, commonly known as the `Local Option Law,' to determine whether or not spirituous and intoxicating liquors, including wine and beer, shall be sold within the corporate limits of said city of Mexico, Missouri, and the city council of the city of Mexico, Missouri, having seen and heard said petition and having examined the names of persons signed to said petition, doth find that said petition is signed by one-tenth of the qualified voters of said city of Mexico, Missouri, who were qualified to vote for members of the Legislature in said city and county of Audrain at the last previous general election held therein, and that said city of Mexico, Missouri, now has a population of twenty-five hundred or more.

"Thereupon Councilman Sanford moved that the petition of C. A. Witherspoon et al. for said special election be granted and that said special election be ordered held within the corporate limits of said city of Mexico on Monday, the twenty-seventh day of October, 1913; said motion was seconded by Councilman Wood, and said motion was placed before the council of the city of Mexico by Mayor Potts, and on a call for a vote on said motion from the members of said city council present, the following voted in favor of said motion: J. A. Lewis, S. J. Sanford, Leo Hanley, J. J. Wood, C. A. Rothwell, J. H. Ballew, Ernest Johnson. Councilman Atkinson was absent. It was therefore announced by Mayor Potts that said motion had carried.

"It is therefore ordered by the city council of the city of Mexico, Missouri, that a special election be held in said city of Mexico, Missouri, at the usual voting precincts therein, to wit, first ward, circuit clerk's office in the courthouse; second ward, at James Wiggington's blacksmith shop at 309 West Love street; third ward, council rooms in the city hall; fourth ward, C. W. Peterson's coal office, East Liberty street, on the 27th day of October, 1913, to determine whether or not spirituous and intoxicating liquors, including wine and beer, shall be sold within the corporate limits of said city of Mexico, Missouri, and the tickets to be voted in said election shall have written or printed on them the words:

"`Against the sale of intoxicating liquors.

"`For the sale of intoxicating liquors.

"`(Erase the clause you do not want.)'

"It is further ordered that said election shall be conducted, the returns thereof made, and the result thereof ascertained and determined in accordance, in all respects, with the laws and ordinances...