149 Mo. App. 317 | Mo. Ct. App. | 1910
Writ issued, petitioner waived production of his person and the case is here for disposition on the pleadings.
The petitioner alleges that he is confined in the county jail of Jasper county under a warrant issued upon an information filed in the office of the clerk of the circuit court of said county, charging the petitioner with the violation of the Local Option Law within the city of Webb City, which law the information charged had been legally adopted in said city. Petitioner alleges that his restraint is illegal and unauthorized, because as he alleges, the election by which it is claimed the Local Option Law was adopted in said Webb City, was void, and to show the invalidity of the election sets out the proceedings of the city council of Webb City, together with copies of the petition for the election, notice of the election, canvass of the returns and notice of the result of the election in full.
The grounds upon which the validity of the election is assailed are that the order of the city council directing notice of the election to be given, and the notice given
“And be it further resolved that the city clerk of the city of Webb City be ordered to publish notice of said election in some newspaper published in Webb City for four consecutive weeks, the last insertion to be made within ten days before such election.”
Petitioner then alleges that the mayor and city clerk thereafter caused to be published in the Webb City Daily Register, a daily newspaper published within the corporate limits of said city, the following notice: (Here follows copy of the notice, but as no point is made as to its contents we shall not copy it.)
It is alleged that during all the time there was published within the corporate limits of said city more than one newspaper, and that the notice of said election was published only in the Webb City Daily Register.
The return of the sheriff admits that the petitioner is held under warrant as alleged in the petition and also avers the calling and holding of the election, and asserts that the Local Option Law was legally adopted and by way of specific answer to the charge of alleged illegality, on account of the notice of election being published in but one newspaper in Webb City, avers that there were but two newspapers published in Webb City, to-wit, the Webb City Daily Register, and the Webb City Daily Sentinel. That there was at the time in force a contract between the city of Webb City and the Daily Register by which the city council were bound to publish all notices of special elections as well as other legal notices in said paper, and that it was understood by said city council and said city clerk that unless otherwise specifically directed, all notices of elections and other legal matters should be published in the Daily Register, and that the Daily Register had a larger cir-
That there were a number of other daily newspapers circulating in Webb Oity. That a local option election was called in Joplin, Missouri, several days before the election in Webb Oity.
That said papers contained numerous editorials and articles for and against local option and the fact was repeatedly mentioned that an election would soon be called in Webb Oity. That on the next day after the calling of the election in Webb City the editorial columns and front pages of all of said papers, under display and large and prominent headlines, contained articles calling attention to the date of said election, and discussing the issues involved. That each faction had a complete and extensive organization with headquarters and offices in Webb City, and that almost daily after the calling of said election, all of said papers contained articles by private citizens and the committees for and against local option, discussing the issues of said election and calling attention to its date. That the Daily Register and the other daily paper having the largest circulation in Webb City contained daily editorials and articles setting forth reasons why the voters should cast their ballots for the “Wets.”
That a poll of the voters of said city was taken and there was sent to said voters by mail from the respective headquarters, literature with reference to said election, mentioning its date and discussing the issues involved. That both factions posted placards and literature in the store buildings and all available places in Webb Oity •discussing the issues involved in said election, and calling attention to the same and its date.
That after the calling of said election public meetings were held at the various churches and the opera house in said city and the issues discussed by noted speakers. That frequent meetings were held in all the various wards of the city and on the street, and that
Upon this return being filed the petitioner moved for his discharge upon the ground that the facts alleged in the return did not show any legal ground for retaining the prisoner.
The motion for discharge admits the truth of the facts pleaded in the return and the issue is thus sharply defined, and presents for our consideration the question of the legality of the local option election in Webb City.
Preliminary to an examination of the question raised by the pleadings in this case we deem it proper to first determine our own jurisdiction and authority to determine the question in a habeas corpus proceeding.
The WTit of habeas corpus is a writ of right, but is not a writ of course, and is not to be had for the asking.
This proceeding cannot be used as a substitute for an appeal or writ of error. [Ex parte Mitchell, 104 Mo. 121, 16 S. W. 118; Ex parte McLaughlin, 210 Mo. 657, 109 S. W. 626; Ex parte Buckley, petitioner, v. Hall, Warden, 215 Mo. 93, 114 S. W. 954.] And yet some questions that could be determined on appeal or writ of error may also be determined in a proceeding by habeas corpus. The constitutionality of the law may be determined in this proceeding. [Ex parte Lucas, 160 Mo. 218, 61 S. W. 218; Ex parte Smith, 135 Mo. 223, 36 S. W. 628; Ex parte Neet, 157 Mo. 527, 57 S. W. 1025.]
But when a law is conceded to be constitutional and the right to retain in custody a prisoner charged with a violation of that law rests upon some fact which is an element of the offense charged, and which fact must be proven by the State to make out a prima facie case against him, or which fact may be proven by the defense and Avhen proven makes a complete defense to the charge entitling the prisoner to a discharge, can that question of fact be passed upon in a habeas corpus proceeding and the court’s finding thereon be made the basis of holding or discharging the prisoner?
The constitutionality of the Local Option Law has been settled beyond cavil, and in prosecutions for its violation the only question open is the question whether this law has .been adopted in the territory in which it is alleged the offense Aras committed; and this question is one of fact to be proven like any other fact in the case, and one peculiarity of the laAV, and the procedure under it, is, that the law may be held in force in one case and a party convicted, and held not in force and a party discharged in another case in the same territory, according to the state of the evidence in each case..There is no way
Further, should we hold in this case that the law had not been adopted and discharge the petitioner, that decision would bind nobody, and should the same or some other party be arrested and put upon trial for a like offense, a conviction might be had, and, should the proof in that case show that the law had been legally adopted, and the party convicted should appeal to this court, we should then be compelled to affirm the judgment in that case and hold the law legally adopted after having held in this case that it had not been legally adopted.
It would seem clear to us that this condition should bring this case squarely within the rule above stated, that habeas corpus cannot be used as a substitute for an appeal or writ of error, and we think the following section of the statute has direct application and should be given full force, to-wit;
“Statute 1899, Section 3581. Parties Under Indictment Wot to he Discharged Except on Bail. No person imprisoned on any indictment found in any court of competent jurisdiction, or by virtue of any process or commitment to enforce such indictment, can be discharged under the provisions of this chapter; but if the offense be bailable, he may be let to bail, and if the offense be not bailable, he shall be remanded forthwith.”
However, in In re Wooldridge, 30 Mo. App. 612, it was held that one convicted of violating this law could by habeas corpus test the validity of its adoption, but made no mention of the statute above quoted, though it was in force at that time. The Wooldridge case was approved by the majority opinion of the Supreme Court in Ex parte Lucas, 160 Mo. 218, l. c. 280, supra, and no mention of the statute made in that case, but as this is the last decision of the Supreme Court on the question we are bound by it, and shall hold that petitioner is properly in court in this case.
Petitioner in this case attacks the order for publication of notice and insists that as the order does not designate the newspaper in which notice was to be published, and there being two papers published in Webb City that the order is void and clothes the clerk with no power to publish notice at all if he should publish it in but one paper, but concedes that if he had published it in both papers the notice would have been legal.
The statute relating to the publication of notice is as follows:
“Section 3029, Revised Statutes 1899. Notice of Election, How Given. Notice of such election shall be given by publication in some newspaper published in the county, and such notice shall be published in such newspaper for four consecutive weeks, and the last insertion*327 shall be within ten days next before such election, and such other notice may be given as the county court or municipal body ordering such election may think proper, in order to given general publicity to the election.”
The order of the council followed the language of the statute except that it required publication to be made in some paper published in Webb City instead of permitting it to be made in any paper published in the county. What does this statute mean? Petitioner insists that it means that the county court or city council calling the election must give the notice and cannot delegate that work to the clerk, and, hence, the council, in this case, should have, by order of record, designated the particular newspaper in which notice should be published. The only argument advanced in support of this position is that if the council should entrust the clerk with the duty of selecting the paper he might select an obscure paper that would not give general publicity to the election. We are not impressed with this argument. It assumes that the clerk might act dishonestly, and that he would be more likely to so act than the council, while the law is that every officer is presumed to have done his duty and to have acted in good faith until the contrary be shown. The statute says that “notice shall be given by publication in some newspaper published in the county.” We agree that it is the duty of the city council, or other body calling the election, to see that such notice is given, but when such notice is given as a result of the action of the council, it is clear to us that the statute has been substantially complied with, and that is all that is required.
The law presumes that the council acted honestly and did their full duty and in this case it logically follows from this presumption that the council duly considered the question of notice of this election, with a view of giving it general publicity, as the statute requires, and in the absence of proof to the contrary we conclude that after having so considered it, their judg
Notice must be published in some newspaper published in the county, for the statute expressly requires this; then, if the council or court think it necessary or expedient to do so, they may order other notice given also. In their action they are to be guided by the declared purpose of the statute, which is, to give the election general publicity. If they only ordered notice to be given by publication in some newspaper, it must be because they did not think any other notice necessary. If they did not name the paper in which the notice was to be published, it must be because they thought notice published in either paper would be sufficient, and if as a result of the order and the notice published in pursuance thereto, general publicity was given the election, as it undoubtedly was in this case, it was sufficient, for nothing more could have been accomplished had the council named the paper itself, instead of leaving that to the clerk. Suppose the council had ordered other notice
When the council or court makes an order of publication in the language of the statute, and in pursuance thereto a notice is “published in some newspaper published in the county” as the statute requires, this should be prima facie good, and before the election should be annulled and the people required to suffer the inconvenience and incur the expense of another election, there should be some showing that the notice given had failed of its purpose, and, in the absence of such showing, the expressed will of the people should be allowed to stand. The sufficiency of the order for the notice should be judged by the result accomplished, rather than by the form of words used in the order, and the burden of showing that the purpose of the statute was not accomplished, should, in such a ease, be upon him who attacks the sufficiency of the order.
The most that can be said against the order of the council in this case is that it was a harmless irregularity, which in no way affected the integrity of the election or its result, and in such cases the election is valid. [Horsefall v. School District, 128 S. W. 33; Sanders v. Lacks, 142 Mo. 255, 43 S. W. 653; State v. Swearingen, 128 Mo. App. 605, l. c. 613, 614, 107 S. W. 1; State ex rel. v. Roberts, 153 Mo. 112, 54 S. W. 520; State ex rel. Walk
Our attention has been directed to State ex rel. v. Baldwin, 109 Mo. App. 573, 83 S. W. 266; State v. Kellogg, 153 Mo. App. 431, 113 S. W. 660; State v. Gatlin, 128 S. W. 806, as announcing a different rule.
What was said in the Baldwin case on this question was obiter for the decision in that case turned on the power of the county court under the facts in that case to enter an order for notice mmo pro tunc. The Kellogg case is in principle in harmony with our views herein, for it was there held that notwithstanding the order did not name the paper in which notice was to be published, yet if the clerk had the notice published in all the papers it was sufficient.
The opinion- in the Gatlin case is, we think, in conflict with our holding in this case. In the Gatlin case the form of the order was the same as in this case and the evidence disclosed that there were seven newspapers in the county. The clerk had the notice published in two of them, and the court held in that case that this publication was insufficient, and held the election void without any testimony as to whether the notice given had given general publicity to the election or not.
Our conclusion is that the election in question in this case was valid, and the prisoner should be remanded, and it is so ordered; but, as our holding in this case is in conflict with the decision of the Kansas City Court of Appeals in State v. Gatlin, supra, the case will be certified to the Supreme Court as required by the Constitution.