State Ex Rel. Brines v. Franklin, 283 S.W. 712

283 S.W. 712 | Mo. Ct. App. | 1926

^* Corpus Juris-Cyc. References: Animals, 3CJ, p. 175, n. 97; p. 179, n. 70; Certiorari, 11CJ, p. 195, n. 73; p. 199, n. 26; p. 203, n. 65, 66; Time, 38Cyc, p. 314, n. 43. Relators filed their petition for a writ of certiorari in the circuit court of Camden county against respondents, judges of the county court, in relation to proceedings for the adoption of the law restraining stock from running at large.

The abstract of the record does not set out the petition. Appellants' statement, however, indicates the petition contained sufficient allegations for the issuance of the writ, which was issued on the 23rd day of March, 1925. This writ recites, that from relators petition it appears respondents have proceeded irregularly in a certain matter of record pending in their court in relation to the extending of the provisions of section 4283, Revised Statutes 1919, over the county of Camden, to restrain horses, mules, asses, cattle, sheep, goats and swine from running at large; that from the record it appears that "without a proper petition, notice, ballots, canvass and count your record purports to show that the provisions of said section have been extended over the entire county of Camden." Then follows an order on relators to send before the court on the 25th day of March, 1925, their complete record in relation to the submission of the question of restraining animals from running at large in Camden county, "together with a copy of the ballot used and furnished the election officials of Camden county in this behalf, together with all the ballots and returns, etc."

Respondents' return to the writ contained a general denial and a certified copy of the record of the proceedings in relation to the adoption of the stock law. The return also contains an averment that "Relators further say that the ballots used in said election are under the seal and in the possession of the county clerk, as required by law, and for that reason are not herewith produced. That said ballots are no part of the record of proceedings in said election, except as appears in the record as it now exists."

Judgment was for respondents; relators, after filing unsuccessful motions for new trial and in arrest of judgment, have appealed to this court.

It is first assigned as error that the notice of election was insufficient. Section 4283, Revised Statutes 1919, in relation to submitting the question of restraining animals, provides among other things that the county court "shall cause notice to be given that such vote will be taken, by publishing notice of the same in a newspaper published in such county, for three weeksconsecutively, the last insertion of which shall be at least tendays before the day of said election." (Italics ours). The proof of publication introduced in evidence shows the notice of election was duly published for three weeks consecutively by insertions in a newspaper on October 3, 10 and 17, 1924. The election was held on the same date as the general election, November 4, 1924, and the order of the county court so provided. Relators assert that the publication of notice was insufficient. This subject has been so thoroughly settled in this State that there should no longer be any doubt or uncertainty as to what constitutes sufficient publication of notice. In the case of State ex rel. v. Tucker, 32 Mo. App. 620, it was held that where a statute in relation to local option elections provided that the notice of election should be published "for four consecutive weeks, and the last insertion shall be within ten days next before such election" that there must be four weeks' notice (twenty-eight days) of the election. To the same effect are Bean v. Barton Co., 33 Mo. App. 635; State v. Martin, 83 Mo. App. 55; Williams v. Ellenson, 178 Mo. App. 178, 170 S.W. 370; Michel v. Taylor, 143 Mo. App. 683. In the Tucker case, the distinction between the time of notice is to run and the mode of notice is clearly pointed out. Where the statute provides unqualifiedly for four weeks' notice, then the notice must be for twenty-eight days. But where the statute contains a clause that the last insertion shall be a certain length of time prior to a particular date, then the last clause limits the first and provides the "mode." In other words such statute is satisfied if the notice is published for four consecutive weeks, not necessarily twenty-eight days, provided the last insertion be the required length of time before the time set by the statute. In other words, the whole of the time of notice need not have expired, if the last insertion was ten days before the date set for the election in this case. Our law relative to service in civil suits by publication has long been so construed. [Sec. 1023, R.S. 1919; Haywood v. Russell, 44 Mo. 252; Cruzen v. Stephens, 123 Mo. 337, 27 S.W. 557; Brown v. Howard, 264 Mo. 501, 175 S.W. 54.] See, also, City of Brunswick ex rel. v. Beneke, 233 S.W. 169, in relation to street improvements; Ratliff v. Magee, 165 Mo. 461, relative to notice of final settlements of estates; also State v. Brown,130 Mo. App. 214. In the case at bar the publication was for three consecutive weeks and the last insertion was more than ten days prior to the date of the election. This satisfied the statute. Moreover, there was actually thirty-one days elapsed between the date of the first insertion and the day of the election, excluding the first day. We hold this assignment against appellant.

Respondents' return shows a proper petition for a county stock-law election was filed; that due notice thereof was published (which notice we have held was sufficient); that a proper canvass of the returns was made, showing 1486 votes for and 1122 against enforcing the provision of the stock law; and that due notice of the result of the election was published. Under the provisions of article 5, Revised Statutes 1919, the foregoing record shows a strict compliance with the statute in relation to the adoption of the law restraining animals from running at large.

The petition and published notice included "swine." Relators introduced in evidence during the trial of this proceeding in the Circuit Court, over respondents objection, a form of ballot which the county clerk testified had been furnished the election officials although not a copy of what he certified to the printer. This ballot did not include "swine." There can be no question that the ballot offered in evidence was no part of the record of the county court of Camden county and the trial judge was of that opinion when he permitted it to be introduced. Relators filed a motion for the purpose of requiring the county clerk to produce the election returns in order that the ballots used therein might be compared with the notice of election and the clerk's notice of the result. This motion was overruled and the action of the court, nisi, in relation thereto, is assigned as error.

In certiorari proceedings we may only consider the record sent up and if that record discloses that the judicial proceedings of the county court of Camden county in relation to the stock-law election in controversy were in compliance without the statute the order of the trial court in quashing the writ must be sustained. [State ex rel. v. Dawson, 225 S.W. 97; State ex rel. v. Brasher, 200 Mo. App. 117.]

Errors or mistakes in law or fact cannot be questioned or corrected in such procedure. [State ex rel. v. Gilbert,164 Mo. App. 139, 148 S.W. 125.]

It is also held that facts cannot be brought to the attention of the court outside the returns. [House v. Clinton County Court,67 Mo. 522.]

Relators contention in this case is that the ballots used in the election are a part of the record of the county court and should have been included in respondents' return. To this we cannot agree. Under our Constitution, ballot boxes may be opened and ballots inspected only in contested elections. [State ex rel. v. Taylor, 220 Mo. 618, 119 S.W. 373; State ex rel. v. Spencer,164 Mo. 23, 63 S.W. 1112.]

Relators cite no authority and we find none, that a proceeding of this character may take the place of an election contest although the law fails to provide for a contest as to such elections. On what hypothesis a contention may be based that the ballots used in an election are part of the court's record, we are unable to discover. If the ballots were so considered, then in such cases the county court would have a part of its record under seal which it would have no right to examine. It would be a record which it had never seen or made. The ballots are counted and sealed the same as ballots under our general election laws. [Sec. 4284, R.S. 1919.] The county court has nothing to do with the ballots. They, therefore, cannot be deemed a part of its record. In other words, the question of what ballot was used and what was the form thereof, as prepared by the county clerk, are questions of fact. Evidence thereof is improper in certiorari proceedings because no part of the record by which we must be guided. (Cases cited.)

We do not undertake to hold that if a defective ballot were used in voting on the adoption of the stock-law election that this fact could not be proven in a proper proceeding. The legality of the adoption of the stock law has been attacked in a number of suits arising thereunder. [Haywood v. Guilford,69 Mo. App. 1; White v. Brim, 48 Mo. App. 111; Welch v. Ry. Co.,26 Mo. App. 358; Bever v. Smith, 207 S.W. 238.] But on the record before us the trial court properly quashed its writ of certiorari and its judgment should be affirmed. It is so ordered. Cox, P.J., and Bradley, J., concur.