State v. Marshall

• Decision Date: 02 June 1914
• Docket Number: No. 14376.,14376.
• Citation: 183 Mo. App. 593,167 S.W. 1050
• Parties: STATE ex rel. CITY OF ELVINS et al. v. MARSHALL et al.
• Court: Missouri Court of Appeals

167 S.W. 1050

183 Mo. A. 593

STATE ex rel. CITY OF ELVINS et al. v. MARSHALL et al.

No. 14376.

St. Louis Court of Appeals. Missouri.

June 2, 1914.

Rehearing Denied June 17, 1914.

1. INTOXICATING LIQUORS (§ 30)—LOCAL OPTION —DISTRICT OR TERRITORY IN WHICH ELECTION MAY BE ORDERED—"PROOF."

Under Rev. St. 1909, §§ 7238, 7239, providing that any incorporated city or town having a population of 2,500 or more is entitled to vote separately from the remainder of the county to determine whether intoxicating liquors shall be sold within its limits, and for the purpose of determining whether any town has 2,500 inhabitants, such body having legislative functions therein may, under an ordinance thereof, take a census, and the result thereof shall be entered on the records or minutes thereof, and such entry, or a certified copy thereof, shall be proof of such fact, and shall be filed with the clerk of the county court, etc., where a city, pursuant to such statute, has caused a census to be taken by virtue of an ordinance, and adopted the same, the result thereof entered upon its records and filed with the clerk of the county court is binding upon the county court in a proceeding for a local option election, precluding it from going behind the result as entered, since the entry of the result on the records of the city's legislative body "shall be proof of such fact," not merely evidence of the fact of the population of the town; "proof" being the effect of evidence, the establishment of a fact by evidence.

2. EVIDENCE (§ 12)—JUDICIAL NOTICE—POPULATION OF TOWN.

In such a proceeding the county court must take judicial notice of the population of a town as determined by the municipal census.

3. INTOXICATING LIQUORS (§ 30)—LOCAL OPTION ELECTION—MUNICIPAL CENSUS—COLLATERAL ATTACK.

The result of a municipal census taken by a town under Rev. St. 1909, § 7239, authorizing the legislative body of a town to take a census to determine whether the town has 2,500 inhabitants or more so as to be entitled to vote separately from the remainder of the county to determine whether intoxicating liquors shall be sold, is not subject to collateral attack.

4. PROHIBITION (§ 3)—EXISTENCE AND ADEQUACY OF OTHER REMEDIES—ELECTION CONTEST.

Where the county court, in a local option proceeding, disregarded a census regularly taken by a town under Rev. St. 1909, § 7239, authorizing the legislative body of a town to take a census to determine whether it has a population of 2,500 or more so as to be entitled to a local option election separately from the remainder of the county, the town was entitled to a writ of prohibition directed against the county court; the town not having a complete and adequate remedy by way of an election contest.

Proceedings by the State, on the relation of the City of Elvins, and others against John Marshall and others, for a writ of prohibition. Writ awarded.

B. H. Boyer, of Farmington, for relators. Benj. H. Marbury, of Farmington, for respondents.

ALLEN, J.

This is an original proceeding in this court, wherein relators seek a writ of prohibition against the judges of the county court of St. Francois county. The relators are the city of Elvins, a city of the fourth class situated within said county, the mayor thereof, and certain taxpaying citizens and residents of such city.

On April 20, 1914, a petition was filed with the county court, under the provisions of the statute relating thereto, alleging that the city of Farmington was, at such time, the only incorporated city in such county having a population of 2,500 inhabitants or more, and praying the county court to order and call a "local option" election to be held in and for all of said county outside of the city of Farmington, and including the city of Elvins.

Under the provisions of sections 7238 and 7239, Rev. Stat. 1909, any incorporated city or town having a population of 2,500 inhabitants or more is entitled to vote separate and apart from the remainder of the county in which it is situated to determine whether or not spirituous and intoxicating liquors shall be sold within its limits. These sections were sought to be repealed by the last Legislature, by what is known as the "County Unit Bill." Laws of Missouri 1913, p. 388 et seq. However, the operation of said last-mentioned act was suspended by the filing of referendum petitions, and said law is now so held in suspension pending a vote thereon by the voters of the state at large, whereby the provisions of the statute of 1909, above referred to, still remain in force and effect. See State ex rel. Kemper v. Carter et al., 165 S. W. 773.

The proviso to section 7239, supra, is as follows:

"Provided, that for the purpose of determining the fact of whether or not any town shall be governed by the provisions of this section, such body having legislative functions therein may, under an ordinance thereof, take a census of the inhabitants of such town, and the result of such census shall be entered upon the journals or records thereof, and such entry, or a certified copy thereof, shall be proof of such fact, and shall be filed with the clerk of the county court of the county in which such town is situated."

It appears that during the year 1913 an ordinance was enacted by the board of aldermen of the city of Elvins, providing for the taking of a census of the inhabitants thereof, which census was taken by an enumerator, one C. R. Huddleston, appointed therefor, pursuant to the provisions of said ordinance, and the same together with the sworn "return" of such enumerator, setting forth the result of said census, was filed with the clerk of said city. The result of the census thus taken showed the city of Elvins to have a population of 2,521 inhabitants. And thereafter, on September 4, 1913, as appears by the record of the meeting of the board of aldermen of that day, the "census report filed by C. R. Huddleston showing 2,521 was officially accepted by board," and the certified copy of said "return" of such census enumerator, theretofore filed with the city clerk, was filed with the clerk of the county court.

It appears that, at the time of the application to this court for a writ of prohibition, the county court had assumed jurisdiction over the subject-matter of the local option petition before it, and was proceeding therewith in disregard of the census taken by the city of Elvins as above mentioned, having inquired into certain charges of illegality and fraud in the taking thereof, and having found that such census "was false, fraudulent, and void, and not based upon any proper and legal list, count, or enumeration of the inhabitants of the city of Elvins."

The question, therefore, before us is whether or not the county court, in so proceeding, was exceeding its jurisdiction in the premises.

As to the duty of respondents to accept the census of the city of Elvins, taken and adopted by the board of aldermen thereof, as aforesaid, and to proceed accordingly in ordering the election, we have little doubt. Respondents contend that such census was fraudulently taken for the purpose of preventing the city of Elvins from being included within the remainder of the county (outside of Farmington) in the holding of the local option election; that it is a mere pretended census or enumeration of the inhabitants of such city, and was fraudulently "padded" with the names of persons not inhabitants thereof. Likewise the regularity of the proceeding had by the board of aldermen of the city of Elvins in respect thereto is assailed. But it appears that the census was taken under and by virtue of an ordinance of the city of Elvins, and, when taken, was duly reported to the board of aldermen, and by the latter accepted and adopted as and for a proper census of said city, and that the result thereof was entered upon their records, and the same duly certified to the clerk of the county court, in accordance with the provisions of section 7239, supra.

The county court had before it the record of the proceedings of the board of aldermen relative to the census in question. It cannot be doubted that the ordinance authorizing and providing for the taking thereof is valid...