271 Mo. 123 | Mo. | 1917
Lead Opinion
Relator was prosecuted and convicted in the. Chariton Cireuit Court for violation of the Local Option Law. He appealed to the Kansas City Court of Appeals, which affirmed the judgment (State v. Edwards, 192 Mo. App. 413), whereupon relator sued out-this writ of certiorari, which brings here the record of that court. The question presented is whether the decision and opinion of the Court of Appeals conflict with decisions of this court.
It appears from the opinion that the record on appeal disclosed that on the trial of relator in the Chariton Circuit Court the State offered record evidence showing an election had been held in Chariton County .on June 7,1913, and this record on its face ‘ ‘ and considered by itself . shows that a valid election was held in said county on June 7, 1913, at which the county declared for prohibition, and that the same was duly put in force by proper notice.” The opinion also states defendant “offered in evidence a record of the county court pertaining to an alleged local option election held on March 18,1912, resulting in the defeat of prohibition by a majority of 99.” The court then states that appellant (relator here) contended the election of June 7, 1913, was a nullity because “held within four years after the first election, in violation of Section 7244, Revised Statutes 1909;” that with respect “to the first
Upon these facts that court held, seriatim: (1) that the acts of the county court in entertaining a petition for a local option election, in determining the sufficiency of the petition and the qualifications of the petitioners, and in calling a local option election, are judicial in their nature, and the record of the county court made therein partakes of the nature of a judgment; (2) that the orders or judgment so made are not open to collateral attack; (3) that jurisdiction of the county court over the subject-matter of local option elections is conferred by Section 7238, Revised Statutes 1909, and “the presentation of a petition properly signed calls the court’s jurisdiction in the particular case into action or exercise”; (4) that if a valid local option election had been held within four years prior to the filing of the petition for the election on June 7,1913, it was the county court’s duty, under Section 7244, Revised Statutes 1909, to decline to call the election, but the court’s jurisdiction over the subject-matter was not destroyed; that “its power to call the election was merely dependent upon the fact whether a valid election had been held within four years;” that “Section 7244 means a valid election ; for a void election is no election and cannot prevent a subsequent one; hence the act of the county court in calling the election of June, 1913, was not void for want of jurisdiction but only voidable, in case the former election was valid.” The court then held that the distinction between jurisdiction of the subject-matter and the exercise of jurisdiction in a particular proceeding is “the difference. between a wrongful execution of power to hear and determine . . . and a lack of power to hear the matter at all.” It then held that “the act of the county court in calling the' election of June, 1913, was an exercise of the jurisdiction it had over the subject-matter of local option elections,” and was not subject to collateral attack.
I. Section 7238, Revised Statutes 1909, requires the county court of any county upon the reception of a petition signed by ten per cent of the qualified voters living outside of cities of 2,500 inhabitants to order an election to determine whether intoxicants may be sold thereafter in the territory affected. Restrictions as to the time when such an election may be held are prescribed.
Section 7244, which almost exactly in its present form constituted a part of the original Local Option Act (Laws 1887, p. 182, sec. 7), reads as follows:
“Whenever the election in this article provided for has been held, and decided either for or against the sale of intoxicating liquors, then the question shall not be again submitted within four years next thereafter in the same county or city, as the case may be, and then only on a new petition and in every respect conforming to the provisions of this article.”
Relator contends that in holding that though the record of the county court showed an election, valid' on the face of that record, had been held in 1912, yet that court could call another election within four years and
In this case the record of the county court, according to the Court of Appeals, discloses a “judgment . which on its face establishes an election held in March, 1912.” In our opinion, this appearing, the record discloses lack of jursidiction to call the election in 1913. Let it be conceded, as the opinion of the Court of Appeals states, that “the rule that there is no presumption in favor of the jurisdiction, .... applies only to their jurisdiction over the subject-matter.” Nevertheless, when the court said that that “jurisdiction over the subject-matter,” in every instance, is conferred upon the county court to call an election under the Local Option Law by the filing of a petition sufficient under Section 7238, Revised Statutes 1909, it brought its opinion into conflict with the decisions of this court already cited.
We are of the opinion that the failure of the record of the county court to show an election within four" years prior to the filing of a petition for an election under the Local Option Act automatically becomes a part of the record of the proceeding and that the fact no such election has been held in four years sufficiently appears, when it exists, from the record itself without any additional special showing made or finding entered at the time. On the other hand, when the record shows such valid prior election within four years it deprives the court of all jurisdiction to act in calling another election, and presumptions cannot he invoked to aid the proceeding. The decisions to the effect that the filing of the petition confers jurisdiction of the subject-matter are well enough when the court has power to act and, in such circumstances, the orders and judgment made are not open to collateral attack, but these decisions are not applicable to the facts of this case any more than they were to those involved in In re Wooldridge, supra. The principle announced in that case is adopted and re-announced in decisions of this court.
]I. Another ground of affirmance set forth in the opinion of the Court of Appeals is that the Legislature has provided a method of contesting local option elections, and that this procedure is exclusive, and, consequently, relator’s attack upon the election of June 7,1913, cannot be heard. State ex rel. v. Ross, 161 Mo. App. 671; State ex rel. v. Ross, 245 Mo. 36; State ex rel. v. Carter, 257 Mo. 52, are cited. This view must proceed on the hypothesis that the election of 1912 was valid. The cases cited do not go the length of holding that a contest must be instituted to determine the validity of an election when, in the eyes of the law, no election has been held. Within four years after one local option election has been held,
Concurrence Opinion
(concurring)'. — My views go somewhat further than those expressed by our learned Brother Biaib. I concur with him in much that he says so far as he goes, but he has written cautiously.
It' is sound doctrine in this State that the jurisdictional facts in the county court must appear somewhere upon the face of the record. In other words, the record must bespeak jurisdiction. We do not mean by this that any particular portion of the record must show the jurisdictional facts; but we do mean that such jurisdictional facts must appear somewhere in the record. A citation of authority upon this well-settled rule would be useless.
Now, as is well said by the principal opinion, Section 7244, Revised Statutes 1909, must be read with the section of the statute conferring jurisdiction upon county courts in these matters. When so read it creates an exception to the general grant of jurisdiction in Section
Where there has been no valid order for an election, or where the order and records fail to disclose jurisdiction in the court to order an election, it can be attacked collaterally, and no one is bound to contest such void election, to have its nullity declared.
Dissenting Opinion
(dissenting). — County courts are created by Section 36 of Article 6 of the Constitution and are declared to be courts of record.
That section reads: “In each county there shall be a County Court which shall be a court of record, and shall have jurisdiction to transact all county and such other business as may be prescribed by law.” ’
From this section it is seen that the County Court of Chariton County is a court of record, and has jurisdiction to transact not only the county business, but also such other business as may be prescribed by law; and it is conceded that the Legislature has conferred upon that court original, general and exclusive jurisdiction over local option elections.
The foregoing legal propositions being uncontrovertible, if applied to the facts of this case it seems to me that there is no escape from the conclusion that the majority opinion holding that the election held on June 7, 1913, is void, is clearly erroneous.
Concede, which we niust, for the records show that a previous local option election had been held in that county on March 18, 1912, which was within four years previous to the one mentioned and held on June 7, 1913, the same being within the period prohibited by statute, that is, the statute expressly prohibits a local option election from being held within a period of four years after a previous one has been held in the same county, then how stands the case? According to the plain letter of the statute mentioned, the election held on June 7, 1913, was invalid, and is of no force or effect, if the election held on March 18, 1912, was valid; that cannot be questioned. But upon that showing the real question is, which one of the two elections mentioned is valid? Here are two judgments of the county court, one adjudging that a local option election had been held in Chariton County on March 18, 1912, and the other that a similar election had been held therein on June 7,1913. As previously stated, under the statute mentioned, both of those things cannot bo
The majority opinion, after viewing the record, holds that the second election is void because the first judgment discloses a similar election had been held within the prohibited period and that it must therefore be void, because the county court had no jurisdiction to order the second election to be held.
In my opinion, that argument is more plausible than sound, for the reason that the apparent conflict between the two judgments may be fully and rationally explained upon legal grounds, provided the last election should be held valid, but not the first. I say this for the reason that if it was legally possible for the first election to have been null and void for any reason and was in fact void-then unquestionably the second election would not have been prohibited by said statute for the obvious reason that the statute refers to a valid and not a void election. Let me illustrate the idea I have in mind. Suppose the county court had ordered the first election held without a petition having been signed or filed asking for the same, as required by statute, and that it had been ordered and held and the court had declared the election carried, and suppose further that shortly thereafter the validity of the record and judgment of the county court declaring the election carried and that local option was in force in that county, had been properly brought to this court by writ of certiorari, and that this court had found the election void for lack of the petition, and had held that said court had no jurisdiction on that account to order the election, and for that reason had quashed the record of the same; could it then be seriously contended that the county court would not have had jurisdiction to order the second election? Certainly not, for the reason that said pretended election of March 18, 1912, would have been absolutely null and void; in fact, no election at all, an empty form, and would therefore have constituted no bar to holding a second election within the said four years.
Not only the foregoing might be true, but the first election might have been void for numerous other reasons
This proceeds upon the theory that' where the law requires a court, even one of limited and inferior jurisdiction, not proceeding according to the common law, but according to a constitutional provision or statutory enactment, to find the existence or non-existence of jurisdictional facts, as the case may be, the law will presume from the mere fact that the court assumed jurisdiction of the cause, that it found the existence or non-existence of the facts conferring jurisdiction over the cause. [State ex rel. v. Wilson, supra.]
That presumption is abiding and conclusive until the jurisdictional facts are fully and completely disproven.
If that was not true,'' then the solemn judgment of a circuit court rendered upon a promissory note, after a previous judgment thereon had for good cause been set aside, could be impeached and nullified by simply introducing in evidence the previous judgment, which as a matter of fact had been set aside.
The law in that ease, as in the one at bar, presumes that the former judgment had been set aside or nullified and for naught held, before the second judgment was rendered.
In other words, in the absence of any showing to the contrary,, the law presumes the county court, which had original and exclusive jurisdiction of local option elections, investigated the, jurisdictional facts and found the first election void, and correctly ordered the second election to be held because the former was no bar to the latter. But it may be argued that the county court has no authority to pass upon the validity of a local option election. In a strict legal sense that may be true, but where from the face of the record it clearly appears that the county court acquired no jurisdiction of the particular cause and for that reason, and perhaps for any other so appearing, the judgment was absolutely void, then upon the most fundamental principles of law that judgment may be
For the reasons stated I dissent from the majority opinion.