State v. Morgan

• Citation: 128 S.W. 839,144 Mo. App. 35
• Parties: STATE v. MORGAN.
• Decision Date: 16 May 1910
• Court: Court of Appeal of Missouri (US)

128 S.W. 839

144 Mo. App. 35

STATE v. MORGAN.

Kansas City Court of Appeals. Missouri.

May 16, 1910.

1. INTOXICATING LIQUORS (§ 33)—LOCAL OPTION—ORDER FOR ELECTION—SUFFICIENCY.

Under Rev. St. 1899, § 3028 (Ann. St. 1906, p. 1735), authorizing a county court to order a local option election on petition therefor signed by a prescribed number of voters, the county court did not exhaust its power in the matter by an order fixing the time for the election and providing for the publication of notice, but could amend the order as to notice during the period in which it might lawfully order an election to be held within 40 days after the receipt of the petition.

2. INTOXICATING LIQUORS (§ 33)—LOCAL OPTION—ORDER FOR ELECTION—SPECIFICATION OF DATES OF PUBLICATION.

Under Rev. St. 1899, § 3029 (Ann. St. 1906, p. 1736), requiring the last insertion of notice of a local option election to be within 10 days of the election, but not specifically requiring the dates of the publication to be stated in the order therefor, there was a sufficient compliance with the statute where the order provided for four consecutive weekly publications and these were made, the last one being within 10 days of the election, though the order did not fix the dates of publication.

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

Under Rev. St. 1899, § 3029 (Ann. St. 1906, p. 1736), requiring notice of a local option election to be published weekly in one paper for four consecutive weeks, and for such other notice as the county court may think proper, an order for a publication for four weeks in one paper, and for a less period in other papers, was proper, and where it was fully complied with the notice was sufficient.

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

Under Rev. St. 1899, § 3029 (Ann. St. 1906, p. 1736), providing for publication of notice of a local option election in one paper for four consecutive weeks, and for such other notice as the county court may think proper, the term "notice" as used in the latter phrase is not restricted to a publication in a newspaper, but may include other legal forms of notice, such as posting hand bills, etc.

5. INTOXICATING LIQUORS (§ 36)—LOCAL OPTION—ELECTION—NOTICE OF RESULT.

Under Rev. St. 1899, § 3031 (Ann. St. 1906, p. 1737), requiring publication of a notice of the result of a local option election in the same newspaper in which the notice of election was published, where the county court ordered the publication of the statutory notice for four weeks in one paper, and of a less notice in other papers, a publication of the result of the election in the one paper was sufficient.

6. INTOXICATING LIQUORS (§ 33)—LOCAL OPTION—ELECTION—PUBLICATION OF NOTICE— "PUBLISHED IN COUNTY."

Under Rev. St. 1899, § 3029 (Ann. St. 1906, p. 1736), requiring publication of notice of a local option election in a newspaper published in the county, where the election was for that part of the county outside the county seat, a city containing over 2,500 inhabitants, publication in a paper published at the county seat and having general circulation in the county was sufficient; it being "published in the county" within the meaning of the statute.

7. INTOXICATING LIQUORS (§ 30)—LOCAL OPTION—ELECTION—CITIES INCLUDED.

Under Rev. St. 1899, § 3028 (Ann. St. 1906, p. 1735), providing for local option elections in all parts of a county not within cities of over 2,500 inhabitants, and providing that for the purpose of local option a city may under an ordinance thereof take a census of the inhabitants, the result of which shall be entered on the journals, and such entry or a certified copy thereof shall be proof thereof, and shall be filed with the clerk of the county court, the mere making of an alphabetical list of the inhabitants of a city showing over 2,500 inhabitants, which list was not filed with the city clerk, nor any record made of it, was insufficient to authorize its exclusion from the local option election.

Appeal from Circuit Court, Macon County; Nat M. Shelton, Judge.

David E. Morgan was convicted of violating the local option law, and appeals. Affirmed.

Geo. N. Davis, for appellant. Ed. S. Jones, Pros. Atty., for the State.

JOHNSON, J.

On information of the prosecuting attorney, defendant was tried and convicted of a violation of the local option law, which, it is alleged, was in force in Macon county outside the limits of Macon, a city of more than 2,500 inhabitants. The validity of the proceedings leading to the adoption of prohibition in that county is the principal question at issue between the parties. A petition for an election signed by more than one-tenth of the qualified voters of the county outside the city of Macon was filed in the county court January 7, 1908. The next day the court ordered that an election be held February 14, 1908, and in the order required "that notice of said election be given by publication in the Macon Times-Democrat, Macon Republican, Bevier Appeal, and La Plata Home Press, four newspapers printed and published in said Macon county, for four consecutive weeks, and the last insertion shall be within ten days next before such election, as the law directs."

The record shows that after making the order "court adjourned to meet Monday, January 13th, at 9:30 a. m." The record for January 13th shows that the court by order duly made and recorded amended the order made at the previous sitting. The amended order provided "that notice of said election shall be given by publication in the Macon Times-Democrat, a newspaper published in the said county of Macon, and that said notice be published in said newspaper for four consecutive weeks, and that a duly certified copy of this order shall be published as and for notice of said election." The record then continues: "Ordered by the court that as a matter of information to the voters and to the citizens of Macon county, Mo., that the clerk of this court publish the above and foregoing...