State v. Kellogg

• Decision Date: 05 October 1908
• Citation: 113 S.W. 660,133 Mo. App. 431
• Parties: STATE v. KELLOGG.
• Court: Missouri Court of Appeals

113 S.W. 660

133 Mo. App. 431

STATE v. KELLOGG.

Kansas City Court of Appeals. Missouri.

October 5, 1908.

Rehearing Denied November 16, 1908.

1. INTOXICATING LIQUORS (§ 34)—LOCAL OPTION LAW—ELECTION—TIME AND PLACE— MANDATORY PROVISIONS.

The provisions of local option law (Rev. St. 1899, § 3027 [Ann. St. 1906, p. 1733]) relating to time and place of holding an election thereunder

are mandatory, so that an election held more than 40 days after the receipt of the petition by the county court is void.

2. INTOXICATING LIQUORS (§ 32)—LOCAL OPTION ELECTION—TIME—PETITION—REFILING.

A petition for local option election was received by the county court October 3, 1887, when the petition was ordered filed and the matter continued. On February 6, 1888, an order was entered reciting that "the petitioners in said cause" were granted leave to withdraw the petition, and on February 8th a new petition was filed, praying for such election, on which an election was ordered held March 9, 1888. The petition withdrawn was embodied in that filed two days later; the list containing the names of the new petitioners being incorporated with the old to form the new petition. Held, that the original petitioners were entitled to withdraw their petition, acting together as shown by the order, and were not disqualified from signing another and all consenting from using parts of the old paper to make the new, which being filed constituted a new petition, so that the election was held within 40 days from the filing of the petition, as required by Rev. St. 1899, § 3027 (Ann. St. 1906, p. 1733).

3. INTOXICATING LIQUORS (§ 33)—LOCAL OPTION ELECTION—ORDER—SUBMITTED QUESTION.

Rev. St. 1899, § 3027 (Ann. St. 1906, p. 1733), provides that the question to be submitted at a local option election is whether or not spirituous and intoxicating liquors, including wine and beer, shall be sold within the limits of the county. Held, that where, in the published notice of election, the proposition to be voted on was stated in the language of the statute, and the proper form of ballot was used, the election was not void because the order recited the question "whether or not the sale of intoxicating liquors shall be prohibited in said county in accordance with the provisions of the local option law"; there having been a substantial compliance with the statute.

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

Rev. St. 1899, § 3029 (Ann. St. 1906, p. 1736), providing that an order for local option election shall direct the clerk to "cause to be published a notice of said election in some newspaper published in said county for at least four consecutive weeks," etc., requires the court to direct in the order the newspaper in which the notice is to be published.

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

Where the court erroneously omitted to designate the newspaper in which the notice of an order for local option election was to be published, as required by Rev. St. 1899, § 3029 (Ann. St. 1906, p. 1736), such omission was rendered harmless by the clerk's publication of the notice in all the newspapers published in the county.

Appeal from Circuit Court, Worth County; Wm. C. Ellison, Judge.

Ed Kellogg was convicted of violating the local option law, and he appeals. Affirmed.

J. W. Peery and Kelso & Kelso, for appellant. L. M. Phipps and John Ewing, for the State.

JOHNSON, J.

Defendant was indicted, tried, and convicted on a charge of violating what is known as the local option law (art. 3, c. 22, Rev. St. 1899 [Ann. St. 1906, p. 1733]), and brings the case here by appeal.

For the purposes of the case, defendant admitted making the sale charged in the indictment, and interposed as his sole defense the claim that the election in Worth county (where the sale was made) "to determine whether or not spirituous and intoxicating liquors, including wine and beer, shall be sold within the limits of such county," was not held in conformity with mandatory provisions of the statute. The first attack on the validity of the proceedings is leveled at the petition of the qualified voters of the county in which the election was ordered. The record of the county court relating to the petition embraces the following entries:

"Oct. 3, 1887. In the matter of the petition of divers taxpayers of Worth county for an order for an election to determine the question of the adoption or rejection of local option with regard to the manufacture and sale of intoxicants. It is ordered by the court that the petition presented be filed for record and the matter is continued until the next term of this court or until the constitutionality of the act be determined.

"Feb. 6, 1888. In the matter of the petitions filed by the taxpayers on October 3, 1887, in this court praying for an order of election on the question of local option and continued at said term until the constitutionality of said act be determined, now come the petitioners in said cause and ask leave to withdraw the same from the consideration of said court. It is therefore ordered by the court that they be permitted to withdraw the same.

"Feb. 8, 1888. Now at this time comes Carson Reed, B. N. Danford, and Rev. Watkins and file their petition in open court praying the court to order an election to submit to the qualified voters of the county the question of prohibiting the sale of intoxicating liquors in the county of Worth in accordance with the provisions of the Wood local option law, Session Acts of 1887, at page 180, which said petition is taken up and considered by the court, and the court doth find that the said petition is signed by at least one-tenth of the qualified voters of Worth county, as required by law. It is therefore ordered by the court that an election be held on the 9th day of March, A. D. 1888, at the various voting precincts in said county, to determine whether or not the sale of intoxicating liquors shall be prohibited in said county in accordance with the provisions of the local option law. It is further ordered that the clerk of this court cause to be published a notice of said election in some newspaper published in said county for at least four consecutive weeks; the last insertion to be within ten days next before said election."

Oral evidence was admitted, from which it appears beyond question that the petition withdrawn on February 6, 1888, was embodied in the petition filed two days later, and the evidence tends to show that lists containing the names of new petitioners were incorporated with the old lists and entered into the composition of the petition presented on February 8, 1888. The statute provides (section 3027, Rev. St. 1899 [Ann. St. 1906, p. 1733]): "Upon application by petition signed by one-tenth of the qualified voters of any county * * * the county court of such county shall order an election * * * to take place within forty days after the reception of such petition," etc. Defendant contends that the provision requiring the election to be held in 40 days after the reception of the petition is mandatory, and that "since...