State v. Ellison

• Decision Date: 01 June 1917
• Docket Number: No. 19373.,19373.
• Citation: 271 Mo. 123,196 S.W. 751
• Parties: STATE ex rel. EDWARDS v. ELLISON et al., Judges.
• Court: Missouri Supreme Court

196 S.W. 751

271 Mo. 123

STATE ex rel. EDWARDS v. ELLISON et al., Judges.

No. 19373.

Supreme Court of Missouri. In Banc.

June 1, 1917.

Certiorari by the State, on the relation of Jack Edwards, against James Ellison and others, as Judges of the Kansas City Court of Appeals, to review a decision of the Court of Appeals (192 Mo. App. 413, 182 S. W. 816), sustaining a judgment of conviction against relator as defendant. Record of Court of Appeals quashed.

Roy W. Rucker, of Keytesville, for relator.

Roy B. McKittrick, John D. Taylor, of Keytesville, and J. A. Collet, of Salisbury, for respondents, cited State v. Jaeger, 157 Mo. App. loc. cit. 339, 138 S. W. 345; State ex rel. v. Carter, 257 Mo. 85, 165 S. W. 773; State v. Gamma, 149 Mo. App. loc. cit. 704, 129 S. W. 734; State v. McCord, 207 Mo. 519, 106 S. W. 27, 128 Am. St. Rep. 410; State ex rel. v. Bird, 108 Mo. App. 163, 83 S. W. 284; State ex rel. v. Weeks, 38 Mo. App. 566; State v. McCord, 124 Mo. App. 63, 100 S. W. 1129; Bine v. Jackson Co., 266 Mo. 228, 181 S. W. 36; State ex rel. v. Wilson, 216 Mo. 215, 115 S. W. 549; Halter v. Leonard, 223 Mo. 286, 122 S. W. 706.

BLAIR, J.

Relator was prosecuted and convicted in the Chariton circuit court for violation of the local option law. He appealed to the Kansas City Court of Appeals, which affirmed the judgment (State v. Edwards, 192 Mo. App. 413, 182 S. W. 816), whereupon relator sued out this writ of certiorari, which brings here the record of that court. The question presented is whether the decision and opinion of the Court of Appeals conflict with decisions of this court.

It appears from the opinion that the record on appeal disclosed that on the trial of relator in the Chariton circuit court the state offered record evidence showing an election had been held in Chariton county, on June 7, 1913, and this record on its face "and considered by itself * * * shows that a valid election was held in said county on June 7, 1913, at which the county declared for prohibition, and that the same was duly put in force by proper notice." The opinion also states defendant "offered in evidence a record of the county court pertaining to an alleged local option election held on March 18, 1912, resulting in the defeat of prohibition by a majority of 99." The court then states that appellant (relator here) contended the election of June 7, 1913, was a nullity, because "held within four years after the first election, in violation of section 7244, R. S. 1909"; that with respect "to the first election defendant offered nothing, except the county court record, and made no attempt to show that the validity of said first election, as established by said first record, had remained unimpeached down to the time of the ordering of the second." This sufficiently epitomizes the facts forming the basis of the decision of the Court of Appeals.

Upon these facts that court held, seriatim: (1) That the acts of the county court in entertaining a petition for a local option election, in determining the sufficiency of the petition and the qualifications of the petitioners, and in calling a local option election, are judicial in their nature, and the record of the county court made therein partakes of the nature of a judgment; (2) that the orders or judgment so made are not open to collateral attack; (3) that jurisdiction of the county court over the subject-matter of local option elections is conferred by section 7238, R. S. 1909, and "the presentation of a petition properly signed called the court's jurisdiction in the particular case into action or exercise"; (4) that if a valid local option election had been held within four years prior to the filing of the petition for the election on June 7, 1913, it was the county court's duty, under section 7244, R. S. 1909, to decline to call the election, but the court's jurisdiction over the subject-matter was not destroyed; that "its power to call the election was merely dependent upon the fact whether a valid election had been held within four years"; that "section 7244 means a valid election, for a void election is no election, and cannot prevent a subsequent one; hence the act of the county court in calling the election of June, 1913, was not void for want of jurisdiction, but only voidable, in case the former election was valid." The court then held that the distinction between jurisdiction of the subject-matter and the exercise of jurisdiction in a particular proceeding is "the difference between a wrongful execution of power to hear and determine * * * and a lack of power to hear the matter at all." It then held that "the act of the county court in calling the election of June, 1913, was an exercise of the jurisdiction it had over the subject-matter of local option elections," and was not subject to collateral attack. It concluded that:

"The existence of the first judgment of the county court, which on its face establishes an election held in March, 1912, does not change the situation. The presumption is that the county court heard and acted upon the petition in entire accordance with the law, and made the second order in obedience thereto and in accordance with its duty, and that since the first election something must have happened which allowed the court to grant the second petition without violating section 7244; for, while the rule is that there is no presumption in favor of the jurisdiction of courts of special and limited jurisdiction, that rule applies only to their jurisdiction over the subject-matter."

The court further concluded (1) that the election of June, 1913, was only voidable, and not open to the attack made; and (2) that the remedy by contest was exclusive. If either of these conclusions is correct, the judgment of affirmance was correct.

I. Section 7238, R. S. 1909, requires the county court of any county, upon the reception of a petition signed by 10 per cent. of the qualified voters living outside of cities of 2,500 inhabitants to order an election to determine whether intoxicants may be sold thereafter in the territory affected. Restrictions as to the time when such an election may be held are prescribed. Section 7244, which almost exactly in its present form constituted a part of the original local option act (Laws 1887, p. 182, § 7), reads as follows:

"Whenever the election in this article provided for has been held, and decided either for or against the sale of intoxicating liquors, then the question shall not be again submitted within four years next thereafter in the same county or city, as the case may be, and then only on a new petition and in every respect conforming to the provisions of this article."

Relator contends that in holding that, though the record of the county court showed an election, valid on the face of that record, had been held in 1912, yet that court could call another election within four years, and that it would be presumed to have acted within its jurisdiction in doing so, the Court of Appeals brought its decision into conflict with decisions of this court. It is the law of this state that "no electon can be held unless provided for by law" (State ex rel. v. Jenkins, 43 Mo. 265), and it is also the law, announced by the St. Louis Court of Appeals (In re Wooldridge, 30 Mo. App. loc. cit. 618) and subsequently approved by this court (Ex parte Lucas, 160 Mo. loc. cit. 280, 61 S. W. 218), that a local option election held in a city of over 2,500 inhabitants within 40 days of a muncipal election is absolutely void and "has no greater force than no election at all." In such case this court has declared that an election not held within the proper time was void "because the courts were acting outside and beyond their respective jurisdiction, and, consequently, their orders were null and void." The Wooldridge Case is one of those referred to. This court added (State ex rel. v. Patterson, 207 Mo. loc. cit. 147, 105 S. W. 1053):

"This is true for the reason that a court of limited jurisdiction, and inferior courts not proceeding according to the course of the common law, are confined strictly to the authority given, and the records of such courts must show the existence of all the facts necessary to give jurisdiction."

In this case the record of the county court, according to the Court of Appeals, discloses a "judgment * * * which on its face establishes an election held in March, 1912." In our opinion, this appearing, the record discloses lack of jurisdiction to call the election in 1913. Let it be conceded, as the opinion of the Court of Appeals states, that "the rule that there is no presumption in favor of the jurisdiction applies only to their jurisdiction over the subject-matter." Nevertheless, when the court said that that "jurisdiction over the subject-matter," in every instance, is conferred upon the county court to call an election under the local option law by the filing of a petition sufficient under section 7328, R. S. 1909, it brought its opinion into conflict with the decisions of this court already cited.

County courts have no inherent authority to call local option elections. Their jurisdiction is derived solely from the statute. Section 7238 authorizes, generally, the calling of an election, and section 7244 specifically prohibits its being called during a named period. The court has no more jurisdiction to call such an election during a period covered by section 7244 than it would have to call one if there were no section 7238. Section 7244 is as much a limitation upon section 7238 as if it had been incorporated therein. It is as much a limitation as the provision that no local option election shall be held within 40 days of a municipal or other election. It is a direct negation of the power and jurisdiction of the county court to act in the circumstances named, and, in this case, those circumstances appear from the record of the county court and from the opinion of the Court of Appeals. The Court of Appeals...