140 Mo. App. 645 | Mo. Ct. App. | 1909
This case was entitled, when filed, State ex rel. James W. Halladay v. A. H. Mitchell et al. As the questions involved in it necessitate reference to the case of State ex rel. Retornez v. Mitchell et al., not officially reported, but in 115 S. W. 1098, we use in the title of this the name of another of the defendants to avoid confusion between the two cases.
It is a proceeding by mandamus to compel defendant Rinke, alleged to be mayor, and the other defendants alleged to be councilmen of the putative city of Flat River, to issue to relator a license as dram-shop keeper in Flat River. An alternative writ was issued by us June 4, 1909.
The facts, in the case as disclosed by the record now before us are these: On the 3rd of February, 1908, a petition was filed with the county court of St. Francois county, praying the court to order an election in the county to determine whether or not spirituous and intoxicating liquors, including wine and beer, should be sold within the limits of the county.
On March 10th, the matter of the election coming before the county court, this entry appears on the records of the court: “The matter of the special election coming on to be heard and determined by the court, the court finds that heretofore on the 4th day of February, 1908, an order was made of record upon the presentation of a petition signed by more than one-tenth of the qualified voters of St. Francois county, Missouri, who reside outside the limits of any city or town having at the time of such petition and order a population of 2,500 or more inhabitants and who are qualified to vote for members of the Legislature, directing that a special election be held in said St. Francois county . . . March 7, 1908, to determine whether or not intoxicating liquors . . . shall be sold within the limits of said county lying outside such limits of such town or city having 2,500 or more inhabitants, as aforesaid.” Italics ours. The court finds that the notice of the election was duly published, election held and conducted in accordance with the law; that the vote cast at the election had been duly canvassed and that the result of the special election was that there were cast against the sale of intoxicating liquors 3,240 votes and for the sale of intoxicating liquors 2,768 votes,
Eesuming the history of the transaction, it appears by the record in the case that on the 3rd day of February, 1908, the board of aldermen of the city of Farm-ington passed an ordinance requiring the taking of a census of the inhabitants of the city, providing for the appointment of enumerators and requiring them to complete and make return of the census within four 'days, proceeding under the provisions of section 6300, Revised Statutes 1899, and it appears that on the 7th of February, the enumerators completed their work and made a return of the enumeration on the 7th of February, 1908, to the city clerk of Farmington, who duly filed it and reported it to the board, by whom it was that day approved. By this enumeration and return, it appeared that the city of Farmington at that date had a population of 2771 people. A duly certified copy of the return of the enumerators and of the enumeration made was filed with the clerk of the county court of the county on the 10th of February. Farm-ington is the county seat of St. Francois county and the county court held its sessions in that city.
(after stating the facts).— At the outset of the case we are met by the suggestion from a member of this bar, acting as amious curiae, that the proceeding is not in good faith; that relator is a well known advocate of local option; that if he is granted a license he would not use it; that the lease of the building occupied by him on lot 48, block
In view of tbe importance to tbe people of St. Francois county of a definite settlement of tbe question sought to be submitted by this case and attempted to be raised in other cases coming from that county, which we have been compelled to dismiss for various technical defects, and that we may, if possible, put an end to a somewhat acrimonious and vexatious dispute, we have concluded that tbe ends of justice and tbe settlement of tbe minds of tbe people of St. Francois county on this subject are of more importance than the mere form in which tbe matter is presented to us.
Tbe question involved in this, as in all these various cases is, whether tbe Local Option Law was legally adopted by St. Francois county, by virtue of an election beld in that county on March 7, 1908. This court held, in tbe case of State ex rel. Retornez v. Mitchell, supra, tbe decision being filed December 1, 1908, that tbe Local Option Law was not in force and effect in tbe city of Farmington. It was stated in that decision that while tbe election was invalid so far as the city of Farmington was concerned, there was some doubt in tbe mind of the court as to whether it was valid and tbe Local Option Law in force in tbe rest of tbe county. It is under tbe doubt arising from this suggestion that much contention has arisen. Tbe question presented to tbe court in tbe Retornez Case was solely as to whether tbe Local Option Law was opera
Section 3027, Revised Statutes 1899, provides that “upon application by petition, signed by one-tenth of the qualified voters of any county who shall reside outside of the corporate limits of any city or town having, at the time of such petition, a population of 2,500 inhabitants or more, who are qualified to vote for members of the Legislature, in any county in this State, the county court of such county shall order an election to be held in such county at the usual voting precincts for holding any general election for State officers, . . . to determine whether or not spirituous and intoxicating liquors . . . shall be sold within the limits of such county lying outside of such corporate limits of such city or town.”
While section 3027 reads, “having a population of 2,500 inhabitants or more who are qualified to vote for members of the Legislature,” it has never been understood that this meant that the incorporated city or town was to have 2,500 qualified voters within its limits; so far as we know the test being applied to inhabitants in the sense of population and not in the sense of qualified voters. We would be doing violence to the general opinion of the State to construe the 2,500 here referred to as meaning 2,500 voters, and we decline to do so. Section 3028 makes it clear that the number of inhabitants is meant. In the present instance the county court recites as a fact that there was at the time no incorporated city or town within the limits of
The notice of the election as published by the clerk of the county court recites, “that the qualified voters of St. Francois county, Missouri, be notified and they are hereby notified that a special election will be held at the usual voting precincts in the county, on Saturday, March 7, 1908, to determine whether or not spirituous and intoxicating liquors, including wine and beer, shall be sold within the limits of said county, outside of the limits of any city or town having 2,500 inhabitants or more.” This was a departure from the
The points against the validity of the notice of the election and against the form in which the county court declared the result, were not presented in the Retornaz Case in the phase they are here and neither was our attention called to section 5895a, Sess. Acts 1905, p. 80 (8 Mo. Ann. St., p. 2990), concerning the mode of taking a census in a city of the fourth class. If the census taken by the city of Farmington was not binding on the county court because the method prescribed in that section was not followed in taking it, and if the opinion in the Retornaz Case erred in losing sight of that section, or for any other reason (which we do not decide); the right result was nevertheless réached because of the invalid notice of election.
A consideration of section 5895a in connection with section 6800 leads us to the conclusion that in the matter of taking a census to ascertain the population of a city of the fourth class, section 6300 governs in all
Our conclusion on the whole matter is, that the