State v. Dugan
| Decision Date | 23 May 1892 |
| Parties | The State v. Dugan, Appellant |
| Court | Missouri Supreme Court |
Appeal from Johnson Criminal Court. -- Hon. John E. Ryland, Judge.
Affirmed.
S. T White for appellant.
(1) The local-option law is unconstitutional; because its vitality is not by legislative sanction in localities where it was supposed to be enforceable, but by the sanction of a certain class of voters within localities, and a repeal or continuance of its vitality after four years from the time of the original vote. That the legislature being inhibited by the constitution from passing laws and repealing the same that are special or local, it is equally inhibited from giving effect to a local or special law, or suspending the same, by a vote submitted to the voters of the city. Barto v. Himrod, 59 Am. Dec. 506; Santo v State, 62 Am. Dec. 487; Lammert v. Lidwell, 21 Am. Rep. 411; Cooley on Constitutional Limitations [3 Ed.] pp. 120, et seq., see page 128, on our constitution of 1865; Sherwood's dissenting opinion in State ex rel. v. Pond, 93 Mo. 606. It is not uniform in the manner of its adoption in cities and counties. R. S., secs. 4598, 4599. To become a law in a county: First. Those voting shall be qualified to vote for members of the legislature. Second. The general election law for county officers shall govern the election. Third. The election shall not be held within sixty days of a general election. Fourth. The votes shall be canvassed, and the results determined according to the general election law. (2) No notice is provided for by the act to be given to citizens of cities within their territorial limits. Without a provision of such notice, said act is inoperative and void. (3) There was no legal evidence introduced by the state that the local-option law was adopted in Warrensburg according to the requirements of the statute, or was in force at the time the alleged offense was committed. The decisions of the courts of appeal have been so conflicting and unsatisfactory as to the proper construction given to the statute, that the decisions on all the questions that seem to bear upon this case are given below, without reference to any interpretation of their proper meaning or weight. This case will be presented entirely on its own merits with reference to the law. State ex rel. v. Tucker, 32 Mo.App. 620; State v. Searcy, 39 Mo.App. 393, certified by court of appeals to the supreme court; Bean v. County Court, 33 Mo.App. 635; State ex rel. Church v. Weeks, 38 Mo.App. 566; State v. Mackin, 41 Mo.App. 99; State v. Prather, 41 Mo.App. 456; State v. Baker, 36 Mo.App. 58; State v. Hutton, 39 Mo.App. 410. (4) There was no proof that could convince an impartial jury, that the defendant sold or authorized the sale of the intoxicating liquors, charged in the indictment.
John M. Wood, Attorney General, for the State.
(1) All of the constitutional questions raised by appellant in the record in this cause and repeated in his brief, when thoroughly analyzed, are comprehended in the two following propositions: "This law affects localities, not by legislative sanction, but by a popular act of certain specified voters, which is a delegation of legislative powers, and is not uniform as to the method by which it may be applicable to localities." "It is an attempt to pass a special law contrary to subdivision 2 of section 53 of article 4 of the constitution of the state." These two questions were fully and carefully considered in the cases of State ex rel. Maggard v. Pond, 93 Mo. 606; Ex parte Swann, 96 Mo. 44. And effectually set said question at rest. The fact that one judge dissented or was absent did not render the decisions any the less the judgment of the court. As to the point made that the information did not state that the law took effect within ninety days within the city of Warrensburg, it is sufficient to say that it is held in State ex rel. Maggard v. Pond, supra, that it took effect at the same time as other general laws, but was simply held in abeyance until the people of the city or county brought themselves under its provisions by an election, as therein provided for. The above cases were reaffirmed by this court in the case of State v. Moore, 107 Mo. 78. (2) The local-option law was duly and regularly adopted in the city of Warrensburg, as shown by the evidence introduced upon the trial. The objections made to the regularity of the proceedings in adopting the law we think are sufficiently disposed of in the cases of State v. Searcy, 39 Mo.App. 393; State v. Hutton, 39 Mo.App. 410; State ex rel. v. Weeks, 38 Mo.App. 566; State v. Baker, 36 Mo.App. 58.
This was a prosecution under the statute known as the local-option law. The indictment charged in substance that the city of Warrensburg, in the county of Johnson, was a municipal corporation having a population in excess of twenty-five hundred, and had adopted the local-option law which was in force on the seventh day of May, 1890, when defendant, within the limits of said city, contrary to said law, did unlawfully sell intoxicating liquor to a person named. A trial to the court, without a jury, resulted in a conviction of defendant, and he appeals to this court, a constitutional question being involved.
I. The constitutionality of the local-option law is again challenged. On this point we need only say that the cases of State ex rel. v. Pond, 93 Mo. 606, 6 S.W. 469, and the Swann case, 96 Mo. 44, 9 S.W. 10, declaring the law constitutional, have been approved and followed by the court in banc in the recent case of State v. Moore, 107 Mo. 78, 16 S.W. 937.
II. A constitutional objection is also made upon the ground that the law nowhere provides for publishing a notice of the special election within the limits of the city to be affected by the result of the vote. This objection, we believe, has not before been made or considered.
The only provision for giving notice of the election is found in section 3 of the act which provides "that notice of such election shall be given by publication in some newspaper published in the county." It is generally held that a notice of a special election is a necessary prerequisite to its validity. McPike v. Pen, 51 Mo. 63.
We do not think it follows that the law would have been invalid had no provision whatever been made for giving notice. In McPike v. Pen, supra, in speaking of the necessity of a notice of a special election, Bliss, J., says: "Although the act is silent upon this subject, we must assume either that the obligation to direct a proper notice is implied in the authority to order an election, or that the notice must be given as required in the general election law." A failure of the law to provide for giving notice of the election within the municipality did not invalidate the law.
III. Several objections are urged to the sufficiency of the proceedings under which the law was adopted in the city of Warrensburg, as also to the admissibility and sufficiency of the evidence offered to prove that all steps had been taken which were necessary to adopt the law.
The indictment need only have alleged "that the act of the legislature approved April 5, 1887, known as the local-option law has been adopted, and was in force as the law of the state," within the city of Warrensburg at the date at the alleged offense, "without reciting in detail the manner in which it was adopted." State v. Searcy, 39 Mo.App. 393; State v. Prather, 41 Mo.App. 451.
It is true the indictment set out in detail that all steps, made essential under the law to its adoption in the city of Warrensburg, had been regularly taken, and, on the trial took the burden of proving them; and for that purpose put in evidence the minutes of the board of aldermen of the city, the ordinance submitting the question to a vote, the proof of publication of notice in the Johnson County Star, the record of the board giving the result of the election, and declaring the adoption of the law in the city, and proof...
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