State v. Wooten

• Decision Date: 03 November 1909
• Citation: State v. Wooten, 122 S.W. 1103, 139 Mo. App. 231 (Mo. App. 1909)
• Parties: STATE ex rel. KELLEY v. WOOTEN et al.
• Court: Missouri Court of Appeals

122 S.W. 1103

139 Mo. App. 231

STATE ex rel. KELLEY v. WOOTEN et al.

Springfield Court of Appeals. Missouri.

November 3, 1909.

On Petition for Rehearing, December 6, 1909.

1. CERTIORARI (§ 64) — NATURE AND PURPOSE.

On certiorari, only such matters as appear on the face of the record which go to the jurisdiction can be reviewed.

2. CERTIORARI (§ 58) — MATTERS REVIEWABLE.

There being no provision for preserving the evidence taken before the county court and making the same a part of the record, such evidence cannot be reviewed on certiorari.

3. CERTIORARI (§ 29) — NATURE AND PURPOSE.

Where a tribunal had jurisdiction, certiorari does not lie to correct mere errors in the exercise of such jurisdiction.

Appeal from Circuit Court, Lawrence County; F. C. Johnson, Judge.

Petition in the name of the State, on the relation of N. A. Kelley, for certiorari to review the proceedings of T. C. Wooten and others, as Justices, and B. F. Woodford, as Clerk, of the Lawrence County Court. There was a judgment dismissing the petition and denying a new trial, from which relator appeals. Affirmed.

This litigation is rooted in a local option election held in Lawrence county on February 13, 1909, at which a majority of the votes were cast against the sale of spirituous and intoxicating liquors. The relator, in his petition for a writ of certiorari, alleged that at the time of the vote on local option, the city of Pierce City was a municipal corporation of more than 2,500 inhabitants, and duly incorporated as a city of the fourth class, that relator was mayor, and a taxpayer, of said city, and that prior to such vote said city had two licensed saloons, from which it was deriving a revenue of $2,000 per year, and that by reason of said vote, said city was prevented from exercising its charter powers to license and regulate the sale of intoxicating liquors within its limits, and was deprived of the $2,000 license tax. The relator prayed that the circuit court, by its writ of certiorari, should require the respondents, who are the justices of the county court of Lawrence county, to certify to the circuit court a complete copy of their acts and proceedings in relation to the election, "including all documents considered by them in the determination of the population of Pierce City." The trial court issued the writ of certiorari in the usual form, containing no reference to the production of the documents referred to in relator's petition. The respondents, however, in their return, make ample amends by furnishing a voluminous supply of documentary evidence relating principally to the census of the city of Pierce City — one taken in 1904, and another in 1907 — showing, or tending to show, a population of 2,500 inhabitants or more. Further, it appears by respondents' return that, at the time the petition was presented to the county court asking for a local option election, a controversy arose, and two sides appeared before the county court and offered evidence as to the population of Pierce City; one side claiming that two censuses had been taken of the inhabitants of the city of Pierce City, and the other side challenging such censuses on the ground that they were not an official enumeration or list of such inhabitants, but simply a sum total reported by the enumerators, and were a fraudulent pretext devised and designed to defeat the adoption of local option in the city of Pierce City.

The county court, after hearing the evidence offered, made an order of which the following is a part: "And the court, after hearing testimony offered and being fully advised in the premises, doth find that the city of Aurora is the only town or city within said county, having, at the time of said petition, a population of 2,500 inhabitants or more, and that the city of Pierce City is a city within said county having, at the time of said petition a population of less than 2,500 inhabitants, and that the pretended census of said city of 1904 and another of 1907 are each false, fraudulent, and void, and the pretended returns and results of each of said censuses were not based upon any list, count, or enumeration of said city of Pierce City." It is conceded by relator that the petition, notice, canvass of votes, and all the subsequent proceedings of the county court conformed to the requirements of the statutes governing...