State v. Cass County Court

• Decision Date: 29 March 1909
• Citation: 137 Mo. App. 698,119 S.W. 1010
• Parties: STATE ex rel. WIRT v. CASS COUNTY COURT.
• Court: Missouri Court of Appeals

119 S.W. 1010

137 Mo. App. 698

STATE ex rel. WIRT v. CASS COUNTY COURT.

Kansas City Court of Appeals. Missouri.

March 29, 1909.

Rehearing Denied April 19, 1909.

1. INTOXICATING LIQUORS (§ 29)—LOCAL OPTION—ELECTION—VALIDITY OF ELECTION.

Rev. St. 1899, §§ 3027, 3028 (Ann. St. 1906, pp. 1733-1735), provide that in counties having cities of 2,500 or more inhabitants the local option election shall be held in the county outside of such cities, and, for the adoption of the law within such cities, the election should be held exclusively in the cities; only the inhabitants thereof voting. The latter section further provides that, in determining whether any town shall be governed by its provisions, its legislative body may by ordinance authorize a census of the inhabitants, and the result shall be entered upon the records and constitute proof of such facts, and section 6300 (page 3147) authorizes cities of the class of that in question to take a census to enable it to reincorporate and for any other purpose that the laws may require, and requires all courts to take judicial notice of such census. A petition for a local option election stated that the county did not contain any cities having a population of 2,500, and an election was ordered, but thereafter the council of a city within the county ordered a census taken which showed that the city had more than 2,500 population, but the election was afterwards held throughout the county, and, though the result of the census was called to the county court's attention, it refused to set aside the order for an election or the proceedings thereunder. Held, that the county court should have vacated the order for an election after the census showed that the city had more than the requisite population, so that the election held thereafter was invalid.

2. CENSUS (§ 9)—COLLATERAL ATTACK—SPECIAL TRIBUNALS—CITY COUNCIL.

The acts of a body authorized by law to perform specified proceedings can only be attacked in a direct proceeding for that purpose, if the proceedings are regular on their face, so that a census taken by a city council, as authorized by statute, to determine whether the city had sufficient population to entitle it to a separate local option election apart from the rest of the county, could not be collaterally attacked for fraud, and hence allegations of such fraud were not a defense to an action wherein the invalidity of a local option election held throughout the county was asserted.

3. COURTS (§ 36)—JURISDICTION—PRESUMPTIONS—INFERIOR TRIBUNALS.

Generally presumptions indulged to sustain proceedings in superior courts will not be allowed to aid proceedings of inferior courts.

4. JUDGMENT (§ 474)—COLLATERAL ATTACK— JUDGMENT OF INFERIOR COURTS.

If the record of an inferior court is regular on its face, it cannot be collaterally attacked.

5. PLEADING (§ 350)—MOTION FOR JUDGMENT —EFFECT.

Matters not well pleaded need not be denied and are not confessed by motion for judgment on the pleadings.

6. CENSUS (§ 9) — LEGALITY — PERSONS INCLUDED.

Where, though an ordinance, authorizing a census by a city to be taken to determine whether it had sufficient population to entitle it to a local option election apart from the rest of the county, provided for the enumeration of all persons within the corporate limits of the city, the first section thereof ordered a census of the inhabitants, and the result showed that it was of the inhabitants alone, the census was not illegal on the ground that the ordinance provided for the enumeration of persons within the city who were not inhabitants.

7. PLEADING (§ 129)—CONCLUSIONS—ADMISSIONS.

An allegation that the voters of a city voted at a local option election ordered by the county court was a mere legal conclusion, and was not admitted by a failure to deny it, in an action involving the validity of the election.

8. MANDAMUS (§ 7)—DISCRETION OF COURT.

The discretion which the court has in considering an application for mandamus is a sound judicial discretion, which must be exercised within established rules of law.

9. INTOXICATING LIQUORS (§ 74) — LICENSE —PROCEEDINGS TO PROCURE—MANDAMUS.

Mandamus is proper to compel the issuance of a liquor license to which relator is entitled.

10. INTOXICATING LIQUORS (§ 74)—LICENSES — PROCEEDINGS TO PROCURE — ISSUES IN MANDAMUS—VALIDITY OF LAW.

In mandamus to compel the issuance of a liquor license to which relator is entitled, relator may attack the validity of a law which the county court claims prevents the issuance of the license.

Original application for mandamus by the State, on the relation of J. K. Wirt, against the County Court of Cass County. Writ issued.

John A. Davis and R. T. Railey & Son, for relator. J. S. Brierly, Jas. W. Suddath, and Chas. W. Sloan, for respondent.

ELLISON, J.

This is an original application in this court for a writ of mandamus against the county court of Cass county requiring it to issue to relator a license to keep a dramshop in Harrisonville, a town in Cass county, which the court has refused to grant. It is conceded by the pleadings that the relator is a proper party to receive a license, and that every requirement has been met as a prerequisite to a license, and that a license should issue to him, unless the county court is prevented from so doing by an election held in Cass county just prior to relator's application, which resulted in the adoption of what is commonly known as the "local option law" against the sale of intoxicating liquors at any place within the limits of the county. The validity of that election is the matter for decision.

The point made against the election relates solely to the fact that the city of Pleasant Hill, in Cass county, was included in the order of election. The local option statute (sections 3027, 3028, Rev. St. 1899 [Ann. St. 1906, pp. 1733-1735]) requires that all cities of 2,500 or more inhabitants in any county shall vote separately, and that they shall not be included in a vote by the remainder of the county. Relator claims that Pleasant Hill was a city of more than 2,500 inhabitants when the election was ordered and held. A return was filed to the alternative writ, and on that in connection with the alternative writ itself, relator has filed a motion for judgment on the pleadings. In our opinion the face of the pleadings affords ground for a determination of the entire case, and we will proceed to state the facts as therein shown, so far as they are applicable to the legal points involved in the election. A proper petition, on its face, was presented to the county court on the 14th day of November, 1907, asking that an election be called in the county to vote on the question whether intoxicating liquors should be sold. The petition was properly signed by a sufficient number of signers, and it was stated therein that there was no town or city within the county of 2,500 inhabitants or more. On the day it was presented the county court made an order for an election in the entire county, to be held on the 14th of December, and recited in the order that there was no town or city in the county with 2,500 or more inhabitants. On the next day after the order (November 15th), the city council of Pleasant Hill ordered a census to be taken of the inhabitants within its limits. The census was taken by an appointee of the council and return thereof made to the council showing the city to contain 2,569 inhabitants. A copy of this was filed with the county clerk on the 4th of December. Afterwards, on the 9th of December, certain citizens filed a motion in the county court asking it to set aside or recall its order for an election, calling the court's attention to the census taken of Pleasant Hill, and stating that it was illegal to include that city in the election, or to receive petitions from citizens of such city asking for the election. This motion was overruled by the county court, and afterwards, on the 14th of December, the day set by the order of the county court, an election was held, including Pleasant Hill, which resulted against the sale of intoxicating liquors anywhere in the county. After the election certain citizens again filed a motion with the county court in which they asked that the court set aside its orders and proceedings in regard to the election. This motion was likewise overruled.

After full consideration of the statute authorizing the adoption of local option laws against the sale of intoxicating liquors, we have concluded that the election in controversy here was clearly void. The statute provides that, in counties having within their limits cities of 2,500 or more inhabitants, the election for adopting the law in the county shall be held in the county outside of such city, and, for adoption of the law in the city, it shall be held exclusively in the city; the inhabitants of each not being allowed to vote at an election for the other. Sections 3027, 3028, Rev. St. 1899. Pleasant Hill was in Cass county, and, according to a census taken by authority of the city, it contained more than 2,500 inhabitants. The election in the entire county was therefore manifestly in the face of the authority and direction of the statute.

But it is claimed by the respondent that Pleasant Hill did not have as many as 2,500 inhabitants, or, at least, that it does not so appear on the face of the pleadings. It is true it appears by such pleadings that the petition...