State v. Rinke

• Decision Date: 06 July 1909
• Citation: 121 S.W. 159,140 Mo. App. 645
• Parties: STATE ex rel. HOLLADAY v. RINKE, Mayor, et al.
• Court: Missouri Court of Appeals

121 S.W. 159

140 Mo. App. 645

STATE ex rel. HOLLADAY v. RINKE, Mayor, et al.

St. Louis Court of Appeals. Missouri.

July 6, 1909.

1. INTOXICATING LIQUORS (§ 33) — LOCAL OPTION LAW — FINDINGS — CONCLUSIVENESS.

A county court's finding, in an order directing submission of the local option question to a county election, that the county contained no incorporated town or city having a population of more than 2,500, was not subject to collateral attack in mandamus to compel the issuance of a county license on the theory that the election was void.

2. INTOXICATING LIQUORS (§ 32) — LOCAL OPTION — ELECTION — STATUTES — "INHABITANTS."

Rev. St. 1899, § 3027 (Ann. St. 1906, p. 1733), provides that on application by petition, signed by one-tenth of the qualified voters of any county who shall reside outside the corporate limits of any city or town having at the time a population of 2,500 inhabitants or more, who are qualified to vote for members of the Legislature in any county in the state, the county court shall order an election to determine whether intoxicating liquors shall be sold within the county outside the corporate limits of such city or town. Held, that the word "inhabitants," used with reference to excluding cities having 2,500 inhabitants or more, was not synonymous with "voters," and did not require that cities, in order to be excluded, should have 2,500 qualified voters within its limits; 2,500 general residents being sufficient.

3. INTOXICATING LIQUORS (§ 33) — LOCAL OPTION — ELECTION — NOTICES.

An order for the submission of local option questions to a county election found that the county contained no incorporated city or town having a population of 2,500 or more, and directed the clerk to give notice by publication of an election to be held on a certain day. The published notice, however, recited that, in accordance with the above finding, it was ordered by the clerk of the county court "that the qualified voters" of the county be notified, and they were notified, that a special election would be held at the usual voting precinct on March 7, 1908, to determine whether spirituous and intoxicating liquors, including wine and beer, should be sold within the limits of the county and "outside the limits of all cities or towns having 2,500 inhabitants or more." Held, that the notice, in so far as it attempted to limit the sale of liquor to the county outside the limits of any town of 2,500 inhabitants or more, was a departure from the order directing the holding of the election, which was therefore void.

4. STATUTES (§§ 152, 158) — REPEAL.

A statute is repealed only by an express provision of a subsequent law or by necessary implication.

5. STATUTES (§ 161) — IMPLIED REPEAL — PARI MATERIA.

A later statute will not repeal a former one by implication, when the two are not irreconcilably inconsistent and can stand together, in which case the later statute will replace the older one only pro tanto as to inconsistent provisions.

6. CENSUS (§ 8) — STATUTES — APPLICATION.

Acts 1905, p. 80, interpolating section 5895a into article 5, c. 91, Rev. St. 1899 (Ann. St. 1906, p. 2990), providing for the taking of a census of cities of the fourth class, was intended to apply only to the taking of a census to determine the tax levy rate, and hence left section 6300 in force for the purpose of ascertaining the population of such cities for every purpose other than taxation.

7. INTOXICATING LIQUORS (§ 31) — LOCAL OPTION ELECTION — INVALIDITY.

A void local option election is not to be considered in determining whether an election has been held in the territorial subdivision within the legal period.

Mandamus by the State, on relation of James W. Holladay, against one Rinke, as Mayor of the City of Flat River, and others. Writ granted.

This case was entitled, when filed, "State ex rel. James W. Holladay v. A. H. Mitchell et al." As the questions involved in it necessitate reference to the case of State ex rel. Retonez v. Mitchell et al., not yet officially reported, but in 115 S. W. 1098, we use in the title the name of another of the defendants to avoid confusion between the two cases. It is a proceeding by mandamus to compel defendant Rinke, alleged to be mayor, and the other defendants, alleged to be councilmen of the putative city of Flat River, to issue to relator a license as dramshop keeper in Flat River. An alternative writ was issued by us June 4, 1909.

The facts in the case, as disclosed by the record now before us, are these: On the 3d of February, 1908, a petition was filed with the county court of St. Francois county, praying the court to order an election in the county to determine whether or not spirituous and intoxicating liquors, including wine and beer, should be sold within the limits of the county. The petitioners set out, by way of recital in their petition, "that there is no city or incorporated town in said county at this time having a population of 2,500 inhabitants or more," and that the petitioners constitute one-tenth of the qualified voters of the county. On the 4th of February the county court entered up an order in which it is recited that the court, acting "on an application by petition, duly signed by 867 persons, who reside in St. Francois county, Mo., praying the court to make an order entered of record ordering and authorizing and directing that a special election be held in St. Francois county, Mo., and submitting to the qualified voters thereof what is known as the local option law * * * and to decide at such special election the fact whether or not said St. Francois county shall adopt the law known as the local option law, and thereby decide if spirituous and intoxicating liquors, including wine and beer, shall be sold within the limits of St. Francois county, Mo., lying outside of the corporate limits of any city or town having 2,500 inhabitants or more for the next four years after said special election," and it was recited that the application by petition having been taken up, and all and singular the matters and issues being submitted, the court finds that the petition is signed by 867 persons, bona fide citizens and qualified voters of St. Francois county, entitled and qualified to vote for members of the Legislature in that county, and that the number of signers constitute more than one-tenth of the qualified voters of the county, as shown by the pollbooks of the previous general election; it appearing by the pollbooks that 5,792 votes had been cast in the county by persons entitled to vote for members of the Legislature. "The court further finds that there is no incorporated city or town in said county having at the time the petition was filed a population of 2,500 inhabitants or more," and that no election under the local option law had been held within the preceding 4 years, and that more than 10 years have elapsed since the question of local option had been submitted, and that the period of 40 days from the day of filing of the petition will expire more than 60 days before any general election is to be held under the laws of the state or any special election held by virtue of any order of the court, which matters being considered, "said special election is granted on said petition, and it is ordered and adjudged that a special election be held in St. Francois county, Mo., on Saturday, the 7th day of March, 1908, at the usual voting precincts in said county, * * * and vote on the proposition and the question submitted and to determine whether or not spirituous and intoxicating liquors, including wine and beer, shall be sold within the limits of said county." It is also ordered that the clerk give notice by publication for four consecutive weeks, that he furnish ballots for use at the election, and the order further provided for the appointment of judges for the several election precincts throughout the county to act at that election. On February 8th the county court proceeded to the appointment of the judges of the election to serve at this special election, and the clerk was ordered to issue certificates of appointment, and the sheriff ordered to deliver them to the parties appointed. Judges were appointed for the two election precincts into which the city of Farmington is divided, as well as for all the other precincts in the county. Publication of notice of the election was also made, as appears by evidence, for four weeks; the first publication being made February 6th, and the last on March 6th. The notice published set out the order of the court as above, including the statement that the court found that there was no incorporated town or city within the limits of the county having a population of 2,500 or more, and that the election was on the proposition whether or not St. Francois county should adopt the local option law, "and thereby decide if spirituous and intoxicating liquors * * * shall be sold within the limits of St. Francois county, Mo., for the period of four years." The published notice concludes: "Now therefore, in accordance with the above finding, it is ordered by the clerk of the county court of St. Francois county, Mo., that the qualified voters of St. Francois county, Mo., be notified and they are hereby notified that a special election will be held at the usual voting precincts in said county, on Saturday, March 7, 1908, to determine whether or not spirituous and intoxicating liquors, including wine and beer, shall be sold within the limits of said county, outside the limits of any city or town having 2,500 inhabitants or more." (The italics are ours.)

On March 10th, the matter of the election coming before the county court, this entry appears on the records of the court: "The matter of the special election coming on to be heard and determined by the court, the court finds that heretofore on the 4th day of February, 1908, an order was made of record upon the presentation of a petition signed by more than one-tenth of the qualified...