State v. Gatlin
| Decision Date | 23 May 1910 |
| Citation | 128 S.W. 806,143 Mo.App. 605 |
| Parties | STATE OF MISSOURI, Respondent, v. W. H. GATLIN, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Daviess Circuit Court.--Hon. Arch B. Davis, Judge.
REVERSED.
Judgment reversed.
Dudley & Selby, Jno. C. Leonard and T. H. Hicklin for appellant.
Rollin J. Britton and Fred Fair for respondent.
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 (sec. 3029, R. S. 1899) 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 within ten days before such election."
The record shows there were seven newspapers published in Daviess county. It further shows that the clerk selected two of these and had the notice of election published in them.
The particular point made is that the statute requires that the county court shall select the paper in which publication of notice is to be made, and that it cannot delegate such authority to the clerk of the court. We think the point well taken. [State v. Baldwin, 109 Mo.App. 573; State v. Kellogg, 133 Mo.App. 431, 113 S.W. 660.] Nothing is said in State v. Campbell, 137 Mo.App. 105, 119 S.W. 494, which affects those cases.
The...
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