Wells v. Null

• Decision Date: 05 December 1921
• Docket Number: No. 2994.,2994.
• Parties: WELLS et al v. NULL
• Court: Missouri Court of Appeals

235 S.W. 464

208 Mo. App. 650

WELLS et al v. NULL

No. 2994.

Springfield Court of Appeals. Missouri.

December 5, 1921.

Appeal from Circuit Court, Pulaski County; L. B. Woodside, Judge.

Action by J. W. Wells and others against M. A. Null. Judgment for defendant, and plaintiffs appeal. Affirmed.

Frank Farris, of Rolla, for appellants.

J. J. Crites, of Rolla, and J. R. Kirkham, of. Dixon, for respondent.

COX, P. J.

This is an action by appellants against respondent in which they seek to enjoin him as constable of Union township in Pulaski county from restraining cattle, swine, and sheep belonging to plaintiffs from running at large in said township. A temporary injunction was issued. Upon the trial, the issues were found in defendant's favor, and plaintiffs' temporary writ of injunction dissolved. Plaintiffs have appealed.

The only question in issue at the trial was the validity of an election previously held in Union township in Pulaski county to restrain domestic animals from running at large in that township. The validity of that election depends on whether the county court of Pulaski county had jurisdiction to order the election. The vote was to be taken in one township only, and hence, to authorize an election on this question in that township, it must appear that it joined a group of five or more townships that had previously adopted the law. This much is conceded in this case.

The question of jurisdiction in the county court to order this election depends upon the sufficiency of the petition presented to the county court and the finding of the court as shown by its record when it passed on the petition and ordered the election. The petition in describing the location of Union township used the following language:

"We further represent that the township of Union adjoins five or more townships in one body in Miller and Merles counties that have heretofore adopted the law."

The court adjudged the petition sufficient, and ordered the election. In its order the court found that Union township is located in Pulaski county, and adjoins five or more townships in a body that had heretofore adopted the law restraining horses, mules, asses, cattle, swine, sheep, and goats from running at large. That said five or more townships referred to by petitioners are situated in Miller and Merles counties, Mo., adjoining counties of said Union township and to Pulaski county.

The question here presented is whether one township which must adjoin a group of at least five townships that have previously adopted the law in order to be permitted to vote on the question of restraining domestic animals from running at large can count part of the five townships in one county and part in another, with none in the county of which it is a part. This court held in Beever v. Smith, 201 Mo. App. 86, 207 S. W. 238, that a single township which adjoined one other township in the same county that had previously adopted the law could cross the county line and finish out the group of five or more by counting townships in another county, although the township then seeking to vote on the question did not join the townships located in the other county. The trial court in this case held that the Beever Case applied to the facts in this case, and sustained the validity of this election. Appellant now contends that if the Beever...