State ex rel. Bell v. Bird

108 Mo. App. 163 | Mo. Ct. App. | 1904

BLAND, P. J.

— Ten days prior to the first day of the regular May term, 1904, of the Mississippi county court, the relators filed with the clerk of the circuit court, their petition for a license to keep a dramshop, in the city of Charleston, a city of the fourth class in said county containing over 2,000 and less than 2,500 inhabitants. At the May term, the county court took up the petition and made the following order thereon:

“In the matter of the petition of O. C. Bell, B. E.' Einley and William Langston to keep a dramshop in block (1) one original town of. Charleston, the matter is taken up and the court finds that Charleston is a town of more than two thousand inhabitants; that O. C. Bell, B. E'. Finley and William Langston are law-abiding, assessed, taxpaying, male citizens above the age of twenty-one years, and that said petition is signed by more than two-thirds of the assessed, taxpaying citizens and guardians of minors, of the city of Charleston, owning property in said original block one, and after due consideration the court refuses the prayer of the petitioners because of the adoption of the local option law at an election held on the eleventh day of December, 1903.”

After this order was made, the petitioners presented their petition to this court asking that we, by writ of mandamus, compel the defendants as justices of the county court, to issue a license to relators to keep a dramshop as prayed for in their petition. An alternative writ was issued and served on the defendants. They made return to this writ, setting up that the court made the following order upon a proper petition.

“Now on this fourth day of November, 1903, come J. T. Heggie, John M. Rowe, C. S. Reynolds, Thomas Vowels, John A. Miller, A. J. Rushing, John Lett and others and present their petition to the court, praying the court to order an election to be held in the county at the usual voting precincts for holding any general election for State officers, to determine whether or not spiritons and intoxicating liquors, including wine and beer, shall he sold within the limits of this Mississippi county.

“Upon examination of said petition presented and the pollbooks of the last previous general election, the court finds that said petition is signed by more than one-tenth of the qualified voters of the county who reside outside of the corporate limits of any city or town, having, at the time of such petition, a population of twenty-five hundred inhabitants or more, who are qualified to vote for members of the Legislature.

“ It is therefore ordered by the court that a special election be held in this county at the usual voting precincts for holding any general election for State officers, within forty days from the fourth day of, November, 1903, to-wit: on Friday, December 11,1903, for the purpose of determining whether or not spirituous and intoxicating liquors, including wine and beer, shall be sold within the limits of this Mississippi county.

“It is further ordered by the court that notice of the said election herein ordered be given by publication in the Weekly Enterprise, a newspaper published in the county, for four consecutive weeks, the last insertion to be within ten days next before the eleventh day of December, 1903, the date of said election.

“It is further ordered that all persons voting at the said election who are against the sale of intoxicating-liquors, shall have written or printed on their ballots ‘against the sale of intoxicating liquors,’ and all those who aré in favor of the sale of such intoxicating liquors shall have written or printed on their ballots, ‘for the sale of intoxicating liquors.’ (Filed November 4, 1903. J. T. Heggie, County Clerk.)”

The clerk’s certificates show that said election was held in said county pursuant to said order and notice and that the returns thereof were duly made and the result ascertained according to law and within five days thereafter, the result of the election was advertised as the law directs; .that at said election there were 1153 votes against the sale of intoxicating liquors, and 1090 for the sale of intoxicating liquors, majority against the sale 63. The relators contend that the election was void for the reason no valid order was ever made by the county court for holding said election. The parties have stipulated that the certificates, copies of orders, etc., made by the clerk of the county court and filed with the proceedings, may be taken as the evidence in the case. Prom these certificates, it appears'that the petition for the election was taken up by the county court at the November term, 1903, and that the order that the election he held was actually made on the fourth day of November, 1903, and the form of the order was written out in full and approvedby the county court and by it handed to the clerk with instructions to spread it upon the records of the proceedings of the court for that day; that the clerk filed the order, but misplaced it and in lien of this approved order spread upon the records of November 4, the following order:

“Order for special election to vote on the proposition to- prohibit the sale of intoxicants in Mississippi county, Missouri:

‘ ‘ On the presentation of a petition signed by over 375 citizens, qualified to vote for State and county officers, the court orders that a special election be ordered and held at the various precincts or voting places in ■said county and that the clerk give due notice of same through the Weekly Enterprise, and it is further ordered that the clerk prepare the necessary pollbooks, tally sheets and tickets, with such other blanks as will be necessary to hold said election, and that the time for holding said election be fixed on the eleventh day of December, 1903, to determine whether or not intoxicating liquors, including wine and beer, shall be sold in the county, tickets to read, ‘ For the sale of intoxicating liquors.’ ‘Against the sale of intoxicating liquors.’ ”

1. It appears from the certified copy of the records of the county court, that it adjourned from November 4, to November 13, and on November 13 met and ad-, journed until November 27, and on November 27 met and adjourned until December 14,1903. At this sitting it was discovered that the order for the election, as approved by the county court of November 4, had not been spread of record, and the clerk having found the same, the court ordered him to enter it of record as of November 4. The contention of the relators is that the order entered by the clerk of November 4, is not sufficient to authorize the holding of the election, for the reason it was not within the power of the court to make an order December 14 to relate back to November 4. Section 3027, art. 3, ch. 22, entitled “Local Option,” E. S. 1899, provides that on application by petition, signed by one-tenth of the qualified voters of any county, the county court of said county shall order an election to he held in said county at the usual precincts for the holding of any general election for State officers, to take place within forty days after the reception of such petition to determine whether spirituous and intoxicating liquors, including wine and beer, shall be sold within the limits of such county outside of cities containing 2,500 inhabitants or over. The statute does not prescribe the form of the order nor state specifically or generally what fact or facts the order shall contain or recite. It requires the county court to make the order, on application by petition signed by one-tenth of the qualified voters of the county. The'petition thus signed is a necessary prerequisite to the making of the order, and the court would have to find that the petition was signed by at least one-tenth of the voters before it would be authorized to make the order for the election, and this finding should be recited in the order to show that the court had jurisdiction to make it. The order entered by the clerk recites that the petition was signed -by over three hundred and seventy-five citizens and qualified voters. It does not state the exact number of said signers, nor that the .number, whatever it is, constituted one-tenth of the qualified voters, and for this reason is defective.

2. On account of an oversight, the county court did not discover’ that its clerk had failed to enter of record the order it made, wrote out and approved on November 4 for the election, until December 14, three days after the election had been held. ' It is insisted that the order made December 14 was a nunc pro tunc order, as it purports to be, and that the county court, possessing no common law jurisdiction, is without authority to make a nunc pro tunc order or entry in any case. The office of a nunc pro tunc entiy is to supply an omission in the record of actions really had but omitted through inadvertence or mistake. Bouvier’s Law Dictionary. It appears to us that any court of record, whether it be a court of general or of limited jurisdiction, necessarily has authority to make its records speak the truth by correcting a mistake or inadvertence of the clerk where there is some written memorandum of what was done filed with the papers in the proceedings, or where the court’s minutes or the minutes of the clerk show what order was made. If this can not be done then he court’s records are at the mercy of the clerk, and parties to proceedings in the court will sometimes be deprived of their rights through a mere mistake of the clerk in entering an order of the court, and be denied the relief actually granted them by the court. The evidence clearly shows that the order enterd on December 14 was the identical order made by the court on November 4; that it was written out in full on the latter date, approved by the court, and delivered to the clerk with instructions to' spread it upon the records of that day’s proceedings; that the clerk marked it filed, but misplaced it and was unable to put his hand on it when he came to write up his record and for this reason substituted an order of his own which, is wholly insufficient. It would be a monstrous doctrine to hold that a mistake of this kind conld nullify an actual proceeding had by the court. It further appears from the evidence that this correction of the record was made at the same term of court at which the original order was made. It is a universal doctrine, applicable to all courts of record, that they may, at the same session or term, correct their records, hence for this reason, the order entered December 14 nunc pro tunc may be treated as a correction of the entry made by the clerk on November 4. It is conceded that the order of December 14 contains all the recitals necessary to authorize the election, and that all other proceedings in respect to the election were in accordance with the requirements of the statute.

We deny the peremptory writ of mandamus and dismiss the petition of the relators at their cost.

All concur.