State ex rel. Martin v. Wilson

129 Mo. App. 242 | Mo. Ct. App. | 1908

BLAND, P. J.

At the general election held on November 6, 1906, the question of restraining certain stock from running at large was submitted to the qualified voters of Union, Washington, Lebanon, Auglaize and Smith townships, in the county of Laclede, Missouri. The returns of the election were duly canvassed and the proposition to restrain sheep, swine and goats from running at large in said toAvnships was declared duly adopted and to be in force from and after November 14, 1906,— the date the notice of adoption was published. Relator, a citizen of- the United States, a qualified voter under the laws of the State, and a resident of one of the townships named, presented his petition to Hon. L. B. Woodside, judge of the Laclede Circuit Court, alleging that the election by which it was claimed the stock law had been adopted in said townships was void for the reason the statutory notice of said election had not been published as the law directs, and that the proposition was defeated for the further reason a majority of the voters voting at said election in said five townships did not vote in favor of said proposition, and asked that a writ of certiorari be issued and directed to the defendant justices of the county court of Laclede county and the clerk thereof, commanding them to bring into the Laclede Circuit Court the election returns and all their books, papers and records concerning said election. The writ was duly issued and served on defendants, who appeared and moved the court to quash said writ. The motion to quash was overruled and they filed their return to the writ. The return shows, first:

“Number of votes cast at the general election November 6, 1906, for county and State officers in the various townships are as follows, to-wit:

Votes cast in Union township.......... 451

Votes cast in Washington township .... 290

Votes cast in Lebanon township........908

Votes cast in Auglaize township.......233

Votes cast in Smith township .........148

Total...........................2030

Second:

Number of votes cast at the general election November 6, 1906, on restraining sheep, swine and goats from running at large:

No. for No. against or Yes. or No.

Votes cast in Union township .......237........121

Votes cast in Washington township .. 73........150

Votes cast in Lebanon township .....463........116

Votes cast in Auglaize township .....103........108

Votes cast in Smith township .......27........104

903 599.”

Relator moved for judgment on the return which motion the court sustained and rendered judgment in his favor.

1. Section 4783, chap. 69, art. 2, entitled, “Animals Restrained from Running at Large,” R. S. 1899, provides :

“The provisions of this article are hereby suspended in the several counties in this State, until a majority of the legal voters of any county voting at any general or special election called for that purpose, shall decide to enforce the same in such county: Provided, that only a majority of the legal voters voting on said question shall be necessary to decide its adoption or rejection.”

Section 4788, of the article, provides as follows:

“Whenever any five or more townships in one body in any county in the State of Missouri, by a petition of one hundred householders, not less than ten of whom shall be from any one of said townships, petition the county court for the privilege to vote on the question of restraining horses, mules, asses, cattle, goats, swine and sheep from running at large, the same law, governing counties is hereby applied to said townships, and said petitioners shall not be debarred the right to restrain said animals if a majority of the qualified voters of said townships, voting at any general or special election, shall vote in favor of so restraining such animals. Nothing in this section shall be so construed as to debar the right of restraining any two' or more species of such animals.”

The learned circuit judge, after reviewing the history of the legislation in regard to restraining stock from running at large, said:

“As the law now stands the stock law may be adopted in a county by a majority vote of those voting on the proposition, but when it is sought to adopt it in townships, there must be a majority voting for it of the voters who vote at the election.

“A similar condition is found, and in almost the exact terms, in the Constitutional provisions as to the adoption and repeal of the township organization law. Section 8, article 9, of the Constitution provides that the law can be adopted by the vote of a majority of the voters voting at the election. Section 9 provides that it may be repealed by a majority of the voters voting on the proposition.

“In State ex rel. Litson v. McGowan, 138 Mo. 187, the Supreme Court draws a clear distinction between the two propositions, and declares that it was the evident intention to require less in the repeal than the adoption of the law. Tested by the same rule, it is evident that the Legislature intended to require more to adopt the stock law by townships than by counties, that is, it may be adopted in a county by a majority of the qualified voters who vote on the proposition, but in order to adopt it in five townships, there must be in favor of the proposition a majority of the voters voting at the election. It appears by the return to the writ of certiorari in this case that the vote on the proposition was taken at the general election held November 8, 1906, and that there were polled at such election 2,030 votes, of which 903 voted in favor of the proposition. This not being a majority of the voters voting at such election, the law was not adopted.”

We fully concur in the views of the learned circuit judge. There is no room for any other or different construction of these two sections of the statute without writing something into them which the Legislature, in its wisdom, saw proper to leave out.

2. The contention is made that the court erred in overruling defendant’s motion to quash, for the reason the writ nor petition show that relator had any special interest in the matter. It is alleged in the petition that relator is a. resident of Auglaize township and the owner of sheep and swine, and has a natural and financial interest in the range therein and an interest in opposition to the enforcement of the stock law. The rule is that the writ will issue at the suit of a private person if the injury complained of is personal to him and affects his individual rights. [4 Am. & Eng. Ency. of Law, p. 162.] We think under the foregoing allegations of personal interest and injury, relator had a right to maintain the action and that the motion to quash was properly overruled.

Tht judgment is affirmed.

All concur.