State v. Swearingen

• Decision Date: 07 January 1908
• Citation: 107 S.W. 1,128 Mo. App. 605
• Parties: STATE v. SWEARINGEN.
• Court: Missouri Court of Appeals

107 S.W. 1

128 Mo. App. 605

STATE v. SWEARINGEN.

St. Louis Court of Appeals. Missouri.

January 7, 1908.

1. INTOXICATING LIQUORS — LOCAL OPTION — — ADOPTION — ELECTION — NOTICE — PUBLICATION — PROOF.

Rev. St. 1899, § 3029 [Ann. St. 1906, p. 1736], requires notice of a local option election to be published for four consecutive weeks in a newspaper published in the county, the last issue to be within 10 days next before the election. Proper notice was published for four consecutive weeks, but the publisher in his affidavit thereof showed a publication for less than four full weeks. Held, that oral evidence by the publisher was properly received to prove the period of publication, since the statute did not require notice to be proved in any particular manner, and the correctness of the affidavit was immaterial.

2. SAME.

Rev. St. 1899, § 7007 [Ann. St. 1906, p. 3413], requires the county clerk to take to his assistance two county judges and examine and cast up the vote of an election. Rev. St. 1899, § 3027 [Ann. St. 1906, p. 1733], requires the returns of a local option election to be spread on the records of the county court. Held, that the statement of returns required by section 3027 was properly admitted in evidence, though not reciting that the county clerk took to his assistance two county judges in casting up the vote, as required by section 7007, this being properly proved by the clerk's oral testimony to that effect, as neither statute required a written certificate of the clerk's action under section 7007.

3. SAME — APPOINTMENT OF JUDGES — IRREGULARITIES.

Rev. St. 1899, § 3027 [Ann. St. 1906, p. 1733], requires local option elections to be conducted and the result ascertained in the same manner as general elections for county officers. Rev. St. 1899, § 6996 [Ann. St. 1906, p. 3410], requires four judges of election to be appointed for each election precinct, and section 7101 [Ann. St. 1906, p. 3436] on the same subject requires two additional judges to be appointed for each election district. Held, that a local option election would not be invalidated by the appointment of only four judges for each precinct, where there was no fraud, and such irregularity did not affect the result, the statutes being merely directory.

4. SAME — ELECTION OFFICERS — ADMINISTRATION OF OATH.

The fact that in several precincts one of the election judges in a local option election, who was not himself sworn either before or thereafter, administered the required oath to his associates, would not invalidate the election in such precincts where the result was not thereby affected, since the statute requiring election officers to take an oath, etc., is merely directory, and, having been appointed by competent authority, such judges were officers de facto, the validity of whose acts could not be questioned by third parties.

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

George Swearingen was convicted of selling intoxicating liquor in violation of law, and he appeals. Affirmed.

A. C. Kice, for appellant. Fred Stewart, for the State.

NORTONI, J.

The defendant was charged and convicted of the offense of selling intoxicating liquors in violation of the local option law, which law had recently theretofore been declared adopted in Douglas county. He makes no point on appeal with respect to error intervening on the trial. The questions presented relate solely to alleged irregularities in certain matters pertaining to the election by which the local option provisions were adopted. The statute (section 3029, Rev. St. 1899 [Ann. St. 1906, p. 1736]) provides for notice of the local option election to be given by publication in some newspaper published in the county for four consecutive weeks, the last insertion of which to be within 10 days next before the date of such election. It has several times been decided that this provision as to the time of notice means four full weeks, that is, 28 days. State ex rel. Weber v. Tucker, 32 Mo. App. 620; In re Wooldridge, 30 Mo. App. 612; Leonard v. Saline County Court, 32 Mo. App. 633; Bean v. Barton County Court, 33 Mo. App. 635; State v. Kaufman, 45 Mo. App. 656; State v. Kampman, 75 Mo. App. 188. In compliance with this statute the county court at the time of ordering the election ordered that notice thereof be given by publication in the Douglas County Herald, a newspaper published in the county, for four consecutive weeks, the last insertion to be within 10 days next before the 9th day of September, 1905, which last-mentioned date was fixed for the election. In obedience to this order the proper notice was published in the Douglas County Herald for four consecutive weeks as directed. The publisher of that paper, in making proof of the fact of publication, however, made a return showing the notice to have been published in his paper for four consecutive weeks beginning August 17th, and the last insertion to have been published September 7, 1905, which was in fact less than the four full weeks or 28 days' notice required by the law. Afterwards error was discovered in this affidavit of publication, and a new one made and filed with the county clerk, in which it was shown that the notice of the election was published in the newspaper "for five weeks consecutively as follows: Beginning in vol. 19, No. 25, dated August 10, 1905, and ending in vol. 19, No. 29, dated September 7, 1905." The publisher who made the affidavit was introduced as a witness by the state, and testified to the fact of publication. He gave evidence to the effect that there was error in the first proof of publication filed as above indicated, and that the notice was in fact published in five consecutive issues of the paper, beginning August 10, and concluding September 7, 1905, as indicated in the second proof of publication referred to. The second affidavit was introduced, and copies of the newspapers containing the notice were exhibited in connection with the evidence of this witness. In view of the fact the first affidavit or proof of publication showed less than 28 days' notice, it is argued the trial court erred in permitting the state to establish the fact of proper notice by the oral evidence of the publisher. The statute does not point out any manner in which the fact that due notice has been given shall be proven, and therefore the affidavit of the publisher whether correct or incorrect, is certainly not conclusive on the question. Such affidavit is not required by the statute, and is in no sense entitled to be accorded the dignity due a public record. In this connection the matter with which the law is concerned is whether or not the notice was given in the manner required by the statute. It is the fact of due notice that must be established. If full and proper notice is given, such may be established, of course, by the evidence of the publisher to that effect, or by the production of copies of the paper containing the notice in connection with his evidence, or that of any other person acquainted with the facts and competent to speak thereon, or by any other competent proof, for that matter, identically as any other fact may be proven. State v. Baker, 36 Mo. App. 58-63; State v. Hutton, 39 Mo. App. 410-417; State v. Dugan, 110 Mo. 138-146-147, 19 S. W. 195; 19 Amer. & Eng. Ency. Law (2d Ed.) 501-508-509.

2. The state introduced in evidence a statement of the vote, tabulated by precinct, showing a majority of 400 against the sale of intoxicating liquors in the county. It appears from this the vote was canvassed and the result ascertained within five days after the election, as required by the statute. It is signed and certified by the county clerk. Two judges of the county court signed their names thereto as witnesses. The county clerk gave evidence ore tenus that he called the two judges to his assistance, as directed in section 7007, Rev. St. 1899 [Ann. St. 1906, p. 3413], and that they, together with him, examined and cast up the vote. The result of the election as disclosed by the tabulated statement was properly spread upon the record of the county court in obedience to the provisions of section 3027, Rev. St. 1899 [Ann. St. 1906, p. 1733], in that behalf, as appears by the county court record introduced by the state. It is argued that there was error in admitting in evidence this tabulated statement and certificate in connection with the testimony of the clerk, for the reason it does not appear from the recitals on the face of the statement that the two judges of the county court were called by the clerk to assist in examining and casting up the vote; it appearing only that they witnessed the proceeding, and that it was error to permit the clerk to give evidence to the effect that he called the two judges, and that they actually assisted him in examining and casting up the vote. The argument is not tenable. The statute requires no more than that the clerk shall "take to his assistance two justices of the peace of his county, or two judges of the county court, and examine and cast up the vote given to each candidate, and give to those having the largest number of votes certificates of election." In this election there were no candidates, and therefore so much of the statute as provides for certificates of election to be given to them is not pertinent. There are no words in the statute which either express, or by reasonable construction intend, the clerk shall recite in any tabulated statement or certificate he may make that he called two judges or justices of the peace to his assistance, and that they together examined and cast up the vote; and the mere fact that the judges signed the certificate as witnesses is unimportant, if they actually participated with him in discharging the duty enjoined. The statute (section 7007) is concerned with the fact that the vote shall be examined and cast up, and the result ascertained in the manner and by the persons prescribed only, and it is...