State v. McCord

• Citation: 106 S.W. 27,207 Mo. 519
• Parties: STATE v. McCORD.
• Decision Date: 10 December 1907
• Court: United States State Supreme Court of Missouri

106 S.W. 27

207 Mo. 519

STATE v. McCORD.

Supreme Court of Missouri, Division No. 2.

December 10, 1907.

1. INTOXICATING LIQUORS—LOCAL OPTION — SUBMISSION TO VOTE—RECORD.

The petition, as well as the order submitting local option questions to voters, is a part of the record, the petition being an indispensable prerequisite to the making of the order.

2. SAME—SIGNING BY VOTERS.

Rev. St. 1899, § 3027 [Ann. St. 1906, p. 1733], provides for the submission of local option questions to a vote on a petition signed by "one-tenth of the qualified voters" of any county, etc. A petition recited "We, the undersigned legal voters" in C. county, petition for the submission to vote on the question of whether dram shop licenses shall be granted in the county, commonly called local option, according to section 3027. The county court found that this petition was signed by "one-tenth of the qualified voters and taxpayers of the county"; the order further reciting that it appeared to the court from sworn testimony produced in open court by certain witnesses that the required number of petitioners had signed and presented the petition. Held, that the court having found that the petition was signed by the required number of legal voters, jurisdiction attached and was not lost by the mere fact that the words "and taxpayers" followed the words "one-tenth of the qualified voters" in the order of submission.

3. JUDGMENT—JURISDICTION—COLLATERAL ATTACK.

A petition for the submission of local option questions having been sufficient to confer jurisdiction on the court to determine whether it was signed by the requisite number of petitioners, the court's determination that it was so signed could not be attacked collaterally in a proceeding to convict accused of violating the local option law put in force pursuant to such election.

4. INTOXICATING LIQUORS—LOCAL OPTION— ELECTION—PETITION.

Rev. St. 1899, § 3027 [Ann. St. 1906, p. 1733], provides that the county court on petition shall order an election "to determine whether or not spirituous and intoxicating liquors, including wine and beer, shall be sold" in the county, etc. Held, that a petition praying the county court to submit to the voters of the county the proposition to vote on the question whether dram shop licenses should be granted in the county, commonly called local option, according to section 3027, while not in the exact language of the statute, constituted a substantial compliance therewith.

Appeal from Circuit Court, Christian County; John T. Moore, Judge.

John L. McCord was convicted of violating the local option law, and he appealed to the St. Louis Court of Appeals, which certified the case to the Supreme Court (100 S. W. 1129). Affirmed.

Harrington & Long and G. A. Watson, for appellant. G. Purd Hays and Leonard Walker, for the State.

BURGESS, J.

This case was certified to this court from the St. Louis Court of Appeals, upon a division of opinion in that court, a majority of the members thereof concurring in an opinion reversing the judgment of the circuit court, the other member dissenting. There is no controversy as to the facts, which are stated by Judge Nortoni substantially as follows: The defendant was convicted on a charge of selling intoxicating liquors in violation of the local option law, and, after unsuccessful motions for new trial and in arrest of judgment, appealed to the St. Louis Court of Appeals. The main question raised was as to the adoption of the local option law in Christian county; the defendant maintaining that the local option law is not in force in said county, in support of which contention he points to what he terms irregularities in the proceedings antecedent and leading up to the publication of notice declaring the same to have been adopted.

It appears that on the 4th day of May, 1905, a petition was presented to the county court of Christian county praying that the proposition of adopting the local option law be submitted to the voters of that county. The county court found such petition to have been signed by "one-tenth of the qualified voters and taxpayers of Christian county, Mo.," and upon such finding ordered an election for July 10th, "to determine the proposition whether or not spirituous and intoxicating liquors, including wine and beer, should be sold" in that county. The election was held. A majority of the votes cast were found to be in favor of the adoption of the local option law, and in due time the county court published the result, in compliance with section 3031, Rev. St. 1899 [Ann. St. 1906, p. 1737], thereby putting the provisions of the law in force.

The defendant contends that the judgment and order of the county court, of date May 4th, by which it submitted the proposition to adopt the law, is void for the reason that it is not predicated upon the petition of one-tenth of the qualified voters of such county, as required by section 3027, Rev. St. 1899 [Ann. St. 1906, p. 1733], which provides: "Upon application by petition, signed by one-tenth of the qualified voters of any county who shall reside outside of the corporate limits of any city or town having at the time of such petition a population of twenty-five hundred inhabitants or more, who are qualified to vote for members of the Legislature, in any county in this state, the county court of such county shall order an election to be held in such county at the...