State v. Gatlin

• Decision Date: 23 May 1910
• Parties: STATE v. GATLIN.
• Court: Missouri Court of Appeals

128 S.W. 806

143 Mo. App. 605

STATE v. GATLIN.

Kansas City Court of Appeals. Missouri.

May 23, 1910.

INTOXICATING LIQUORS (§ 33)—LOCAL OPTION ELECTION—NOTICE—SELECTION OF NEWSPAPER.

Under Rev. St. 1899, § 3029 (Ann. St. 1906, p. 1736), providing that notice of local option election shall be given by publication in some newspaper published in the county, and such notice shall be published for four weeks, and such other notice may be given as the court thinks proper, a proper notice was not given where the order for notice merely directed that the clerk cause the notice to be given by publication in some newspaper, etc., leaving the selection of the newspaper to the clerk, as such selection was committed to the discretion of the court.

Appeal from Circuit Court, Daviess County; Arch B. Davis, Judge.

W. H. Gatlin was convicted for selling intoxicating liquors contrary to the local option law, and appeals. Reversed.

Dudley & Selby, Jno. C. Leopard, and T. H. Hicklin, for appellant. Rollin J. Britton and Fred Fair, for the State.

ELLISON, J.

Defendant was prosecuted and convicted, on an information by the prosecuting attorney of Daviess county, for selling intoxicating liquors contrary to the provisions of the local option law, alleged to have been adopted by that county. He duly appealed to this court.

The defense is based on the ground that the local option law had not been legally adopted, in that notice of the election had not been given as required by the statute authorizing a vote on the question whether intoxicating liquors could be sold in that county. The statute (section 3029, Rev. St. 1899 [Ann. St. 1906, p. 1736]), which directs a notice of the election, reads as follows: "Notice of such election shall be given by publication in some newspaper published in the county, and such notice shall be published in such newspaper for four consecutive weeks, and the last insertion shall be within ten days next before such election, and such other notice may be given as the county court or municipal body ordering such election may think proper, in order to give general publicity to the election." The order of the county court for notice was for the clerk to cause the publication of a notice. It reads as follows: "And it is further ordered by the court that the clerk of this court cause notice of said election to be given by publication in some newspaper published in Daviess county, Missouri, for four consecutive weeks, the last insertion to be...