State v. Pemberton

• Decision Date: 07 April 1941
• Citation: 151 S.W.2d 111,235 Mo.App. 1128
• Parties: STATE OF MISSOURI, RESPONDENT, v. SAM M. PEMBERTON, APPELLANT
• Court: Kansas Court of Appeals

151 S.W.2d 111

235 Mo.App. 1128

STATE OF MISSOURI, RESPONDENT, v. SAM M. PEMBERTON, APPELLANT

Court of Appeals of Missouri, Kansas City

April 7, 1941

235 Mo.App. 1128 at 1138.

Original Opinion of April 7, 1941, Reported at: 235 Mo.App. 1128.

Motion overruled.

OPINION

SHAIN, P. J.

ON MOTION FOR REHEARING.

--The respondent herein has filed motion for rehearing and asserts two grounds. The first ground is as follows:

"The decision of this court in this case in which it says (page 11 of the opinion):

"'We have carefully examined the Transcript and Bill of Exceptions certified to and filed herein, and no record of the first proceeding where the court made its order calling the election is shown,'

"And on the last page where the court says:

"' . . so far as the record before us shows, the county court never acquired jurisdiction to act in the matter, . . .,'

"overlooks the fact that such an order calling the election based upon the petitions filed, was made and the county court of Boone County took jurisdiction and did order the election held. That order appears in the County Court Record, Book 21 at page 51, and that the order itself appears on page 9 of the Bill of Exceptions filed in this court with this case, and is in words and figures as follows, to-wit:

"'In the matter of the Dog Tax Election: A petition of 100 or more qualified voters of Boone County, Mo., having this the 30th day September, 1938, been presented to the County Court of said County, requesting that an election be held in said county for the purpose of voting for or against the collection of a tax on all dogs in said county, under the provisions of Sec. 12881, R. S. Mo. 1929; it is the order of the Court that such election be called and held on November 8, 1938, the same being the date for holding the general election; and that the clerk hereof have said proposition printed on all ballots to be voted at said general election as provided in said Section 12881.'

The Court's opinion in this case is quite obviously written on the theory that no such order was made and that the county court did not take jurisdiction and call the election. The court in overlooking this order missed the heart of the case.

This court in its opinion goes off on the proposition that there is no showing in the record that the petition was signed by one hundred householders, and the court makes the statement (page 11 of the opinion):" (Italics theirs.)

Our review in this case is made from a somewhat voluminous typewritten record under two separate covers attached together. The first of these documents is entitled "Transcript in Appeal" with no index. The second document is entitled "Bill of Exceptions" with an index in which there are listed only two exhibits: "A, Aff. of Publication" and "Exhibit B, Petitions."

After having resolved the question of sufficiency of pleading in favor of the State and having concluded that if a valid dog law was in force, there was evidence to support the charge, we directed our review to the question of the law and with such issue in mind, we searched the record for documentary evidence upon which rested the solution as to whether or not the local option dog law had been duly adopted in the county.

In addition to the documents indexed Exhibits "A" and "B," we found "Notice to Dog Owners" and a blank dog tax receipt. However, there nowhere appears in evidence the documentary exhibit of first proceeding by the court.

In the motion for rehearing, we are informed where the proceedings, supra, appear, as follows:

"MR. CARTER: Q. Mr. Morris, I will ask you to turn to the County Court Record Book 21, page 51, with reference to 'In the Matter of the Dog Tax Election,' and read the order of Court that you have there."

Thereafter the witness is shown as "Reading from the book and page designated." We might make excuses for overlooking this testimony, by reason of the informal manner of not offering the record itself, but it is impossible to give a sound reason for so doing. However, by now giving due consideration of the entry as it appears set forth, supra, we are enabled to base our conclusion on fact rather than inference.

The petitions in evidence and set forth verbatim in our opinion failed to supply the jurisdictional element of "householders." We are more confirmed in our conclusion that there was never a finding by the court as to such jurisdictional fact. The language set forth in respondent's motion, supra, supports the conclusion that the court's action was based upon a consideration of voters rather than householders. It follows that "so far as the record before us shows, the county court never acquired jurisdiction to act in the matter."

Respondent's second asserted ground is as follows:

"The decision of this court in this case in holding (last page of opinion):

"' . . there is...