State v. Ross

• Citation: 149 S.W. 451
• Parties: STATE ex rel. RAINWATER v. ROSS et al.
• Decision Date: 02 July 1912
• Court: United States State Supreme Court of Missouri

149 S.W. 451

STATE ex rel. RAINWATER v. ROSS et al.

Supreme Court of Missouri.

July 2, 1912.

1. STATUTES (§ 114—)TITLE—GERMANE SUBJECTS.

Laws 1887, p. 179, is entitled "An act to provide for the preventing of the evils of intemperance by local option in any county in the state and in cities of 2,500 inhabitants or more, by submitting the question of prohibiting the sale of intoxicating liquors to the qualified voters of such county or city; to provide penalties for its violation, and for other purposes." Held, that a provision for contest of elections so held was germane to the subject of the act, and was sufficiently covered by the title.

2. MANDAMUS (§ 3) — NATURE OF RIGHT RIGHT TO RELIEF.

Mandamus is an extraordinary writ, and will be granted only when relator is without other legal remedy.

3. INTOXICATING LIQUORS (§ 74)—LOCAL OPTION ELECTION—CONTEST—MANDAMUS.

Under Laws 1887, p. 179, as amended by Laws 1909, p. 470 (Rev. St. 1909, § 7242), providing for local option elections, and declaring and authorizing a contest by any qualified voter in the same manner as provided for the contest of elections of county officers, such contest provision afforded an adequate remedy to determine the validity of a local option election, and hence such question could not be determined in a mandamus proceeding to compel the granting of a liquor license in a city in which local option had been put in force, on the ground that the election was invalid.

Graves, J., dissenting.

In Banc. Appeal from Circuit Court, Jasper County; B. G. Thurman and J. D. Perkins, Judges.

Mandamus by the State, on the relation of James D. Rainwater, against J. C. Ross and others. Judgment for respondents, and relator appeals. Affirmed.

See, also, 143 S. W. 510.

Thomas & Hackney and McReynolds & Halliburton, for appellant. W. N. Andrews, C. S. Walden, and Shannon & Phelps, for respondents.

KENNISH, J.

This proceeding by mandamus was brought by the relator in the circuit court of Jasper county against the respondents as judges of the county court. The purpose of the suit was to compel the respondents as such judges to grant a license to relator to keep a dramshop in the city of Carthage, a city of over 2,500 inhabitants in said county. Upon a trial, a peremptory writ of mandamus was denied, and relator appealed to the Springfield Court of Appeals, in which court the judgment was affirmed. After the affirmahce of the judgment, the case was transferred to this court upon the motion of appellant, on the ground that the construction " of the "Constitution of this state was involved in the case.

In the petition for mandamus facts were alleged showing that relator had complied with all the statutory requirements entitling him to a dramshop license, including an allegation that the petition was signed by twothirds of the persons qualified as petitioners. It was also alleged that a hearing was had in the county court, and, although relator established all of said facts and respondents found such facts to be true, respondents wrongfully denied relator's application and petition. The prayer was that, as relator "had no other legal remedy whatever in the premises," a writ of mandamus be issued as prayed. Respondents made return to the alternative writ, admitting that, as judges of the county court, they denied relator's petition for such license, and responding to the command of the alternative writ to show cause for such action, made three separate defenses, which, in' substance, were but two, namely: First, that the local option law' was regularly adopted by the voters of said city and was in full force and effect therein at the times mentioned in the alternative writ ; second, that at the hearing in the county court, upon relator's application for such license, the question as to whether the local option law was in force in said city of Carthage was heard and determined by the county court, and was therefore res adjudicata. Relator filed answer to the return, admitting that an election was attempted to be held in said city to determine whether the local option law should be put into force and effect therein, but denied that said law was legally adopted at the said election, and the legality of the election was challenged upon a number of grounds, such as that the notice of the election was insufficient ; that the law against electioneering within 100 feet of the polling places was violated; that one of the ballot boxes used remained unfastened during the election; and that many ballots were counted on which no numbers had been indorsed as required by law. The answer also contained a general denial.

Much testimony was introduced upon the issues thus made, at the close of which the court filed a written memorandum set out in the record, learnedly reviewing the law and the evidence, and concluding, as before stated, with a judgment denying the peremptory writ. Upon the hearing in the court of appeals, one member thereof did not sit in the case, and each of the other two delivered an able opinion in affirmance of the judgment. The concurring opinion of Nixon, J., holds that as the local option law, as amended in the year 1909, provided an adequate remedy for the contest of an election held under said law, such remedy was exclusive, and that mandamus would not lie under the facts of this record. If that view is well founded, and the statute as amended by the act of 1909 is constitutional, it is decisive of the case, and renders unnecessary a review of the many other interesting questions presented by counsel. Section 7242, Revised Statutes 1909, a section of the local option law, as enacted in 1887, contained this provision: "The election in this act provided for, and the result thereof, may be contested in the same manner as is now provided by law for the contest of the elections of county officers in this state." In the case of Kehr v. Columbia, 136 Mo. App. 322, 116 S. W. 428, it was held that the foregoing provision was unenforceable for the reason that no party was authorized to bring such a proceeding or to defend against it if brought. Pursuant to that decision the Forty-Fifth General Assembly (Laws of Mo. 1909, p. 470) amended said section by adding thereto and to the foregoing provision the following: "By any qualified voter of the municipal body or of the county in which said local option election shall be held by an action to contest as herein provided, and which shall be brought against the municipal body or the county holding said election." As heretofore stated, Nixon, J., concurred in affirming the judgment of the trial court, upon the ground that the foregoing statute as amended provided an exclusive remedy for the contest of a local option election and that the remedy by a writ of mandamus was without authority of law. Relator thereupon alleged, by motion to transfer the cause to this court, that said section 7242, in so far as it authorized the contest of an election, was in contravention of section 28, art. 4, of the Constitution of this state, in that such provision was not clearly expressed hi the title of the act, and upon that ground rests the jurisdiction of this court. That the constitutional question was regularly raised, and is properly presented by the record, is not contested by respondents.

1. The title of the local option act (Laws of Missouri 1887, page 179) is as follows: "An act to provide for the preventing of the evils of intemperance by local option in any county in this state, and in cities of twenty-five hundred inhabitants or more, by submitting the question of prohibiting the sale of intoxicating liquors to the qualified voters of such county or city; to provide penalties for its violation, and for other purposes." Is such title sufficient to uphold the provision for the contest of the election referred to and provided for in the act? We think it is. The title purports to cover the subject of an election for the purpose of prohibiting the sale of intoxicating liquors, and a provision in the act for a contest of the election so held is so clearly germane and directly connected with the subject expressed in the title that we entertain no doubt as to its constitutionality upon that ground. An attack upon the validity of a statute because of alleged conflict with the constitutional provision now under consideration is so frequently made and has been considered in so many cases by this court that we deem it unnecessary to do more than state our conclusion, and cite a few of the authorities which discuss the question and fully sustain the conclusion reached. Coffey v. City of Carthage, 200 Mo. 616, 98 S. W. 562; State v. Doerring, 194 Mo. 398, 92 S. W. 489 ; State ex rel. v. Slover, 134 Mo. 10, 31 W. 1054, 34 S. W. 1102.

2. Is relator entitled to relief by writ of mandamus under the facts of this record? We are of the opinion that he is not. Mandamus is an extraordinary writ, and will be granted only when the relator, as alleged in the petition in this case, is without "other legal remedy." This principle of law is well established, and the decisions of this court are in full accord with it. As said by this court in the case of State ex rel. v. Mc-Auliffe, 48 Mo., loc. cit. 114: "The principle is unquestioned, laid down by the text-writers, and established by the adjudged cases that mandamus will only lie where the relator has a specific right and the law has provided no other specific remedy." See, also, State...