State v. Johnson County Court

• Decision Date: 01 November 1909
• Citation: 138 Mo. App. 427,122 S.W. 316
• Parties: STATE ex rel. DORAN v. JOHNSON COUNTY COURT.
• Court: Missouri Court of Appeals

122 S.W. 316

138 Mo. App. 427

STATE ex rel. DORAN v. JOHNSON COUNTY COURT.

Kansas City Court of Appeals. Missouri.

November 1, 1909.

1. INTOXICATING LIQUORS (§ 69) — PETITION FOR LICENSE — DUTY OF COUNTY COURT TO GRANT.

It is the mandatory duty of a county court to grant a liquor license on a petition signed in accordance with law, by two-thirds of the qualified petitioners in a block.

2. TIME (§ 6) — NOTICE OF LOCAL OPTION ELECTION.

Notice of a local option election required to be published 4 consecutive weeks must be published for 28 days.

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

If notice of a local option election which need only be published in one paper be published in more than one, it must be published in each for the full time.

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

If the last day of publication of notice of a local option election be the day after the election, it cannot be counted in determining the time.

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

Evidence held to show that the day of publication of a paper containing notice of a local option election was the date on which it purported to be actually published.

6. NOTICE (§ 11) — TIME OF PUBLICATION.

The day a notice is set up in type and printed is not the day of publication, but publication takes places when the notice is seen and read in the paper by the public, though it need not reach every member of the public at the same time; and publication will date from the day when the public begins to receive it from the publisher.

7. INTOXICATING LIQUORS (§ 33) — PUBLICATION OF NOTICES OF LOCAL OPTION ELECTION.

Where two papers were designated to publish a notice of a local option election, proper publication only in the one designated as the official paper was insufficient.

8. INTOXICATING LIQUORS (§ 33) — PUBLICATION OF NOTICES OF LOCAL OPTION ELECTION.

Whether an order for publication of a notice of a local option election is for "four full consecutive weeks" or for "four consecutive weeks," the time required is the same.

Application for mandamus by the State, on the relation of John T. Doran, against the County Court of Johnson County. An alternative writ is made peremptory.

J. W. Suddath & Sons, for relator. W. L. Chaney, Pros. Atty., and S. T. White, for respondent.

ELLISON, J.

This is an original proceeding in this court by mandamus seeking to compel the county court of Johnson county to issue to relator a license to keep a dramshop in the city of Warrensburg, in such county, a city of more than 2,500 inhabitants. Due return was made to the alternative writ. Relator then moved for a peremptory writ based upon the return.

The case involves the validity of a local option election held in Warrensburg on the 6th day of February, 1908, to determine whether intoxicating liquors should be sold within the limits of such city, which resulted against the sale of such liquors. Afterwards the relator, conceiving the election to have been void, presented his application and petition to the county court of that county asking a dramshop license. Whether the petition was signed by two-thirds of the qualified petitioners in the block, as required by law, was a matter of dispute between the parties in this court. Five of those who signed are conceded to have been proper petitioners. Three others signed whose right is disputed. And three were qualified who did not sign. Thus eleven names were involved. If either one of the three who signed was not a proper petitioner, then the petition contained the names of two-thirds of the qualified petitioners, as determined by the appellate courts (Scarritt v. Jackson County Court, 89 Mo. App. 595); and it was the mandatory duty of the county court to grant the license (State ex rel. v. Turner, 210 Mo. 77, 82, 107 S. W. 1064; State ex rel. v. Meyers, 80 Mo. 601; State ex rel. v. McCammon, 111 Mo. App. 626, 86 S. W. 510; Scarritt v. Jackson County, 89 Mo. App. 585).

In passing on relator's motion for a peremptory writ on respondent's return, we concluded that the record showed him entitled to the license unless the local option has been legally adopted. We found that a determination of that question involved the fact whether proper legal notice of the election had been given — that is to say, whether the publication of the notice had been made for the requisite time — and this made necessary the taking of evidence, which was heard by an officer agreed upon by the parties. The evidence has...