245 Mo. 36 | Mo. | 1912
Lead Opinion
— This proceeding by mandamus was brought by the relator in the circuit court of Jasper county, against the respondents as judges of the county court. The purpose of the suit was to compel the respondents as such judges to grant a license to relator to keep a dramshop in the city of Carthage, a city of over. 2500 inhabitants in said county. Upon a trial a peremptory writ of mandamus was denied and relator appealed to the Springfield Court of Appeals, in which court the judgment was affirmed. After 'the affirmance of the judgment the case was transferred to this court upon the motion of appellant, on the ground that the construction of the Constitution of this State was involved in the case.
In the petition for- mandamus facts were alleged showing that relator had complied with all the statutory requirements entitling him to a dramshop license, including an allegation that the petition was-
Much testimony was introduced upon the issues-thus made, at the close of which the court filed a written memorandum set out in the record, learnedly re
Sec. 7242, R. S. 1909, a section of the Local Option Law, as enacted in 1887, contained this provision: ‘ ‘ The election in this act provided for, and the result, thereof, may be contested in the same manner as is now provided by law for the contest of the elections of county officers in this State.” In the case of Kehr v. Columbia, 136 Mo. App. 322, it was held that the foregoing provision was unenforceable for the reason that no party was authorized to bring such a proceeding, or to defend against it if brought. Pursuant to that decision the Forty-fifth General Assembly (Laws 1909, p. 470) amended said section by adding thereto- and to the foregoing provision, the following: “by any qualified voter of the municipal body or of the county in which said local option election shall be held by an action to contest as herein provided, and which shall be brought against the municipal body or the county holding said election.” As heretofore stated, Nixon, J., concurred in affirming the judgment of the trial court, upon the ground that the foregoing statute as amended provided an exclusive remedy for the contest of a local option election, and that the remedy by a writ of mandamus was without authority
I. The title of the Local Option Act (Laws 1887, p. 179) is as follows: “An act to provide for the preventing of the evils of intemperance by local option in' any county in this State, and in cities of twenty-five hundred inhabitants or more, by submitting the question of prohibiting the sale of intoxicating liquors to the qualified voters of such county or city; to provide penalties for its violation, and for other purposes.’5' Is such title sufficient to uphold the provision for the contest of the election referred to and provided for in the act? We think it is.
The title purports to cover the subject of an election for the purpose of prohibiting the sale of intoxicating liquors, and a provision in the act for a contest of the election so held is so clearly germane and directly connected with the subject expressed in the title that we entertain no doubt as to its constitutionality upon that ground. An attack upon the validity of a statute because of alleged conflict with the constitutional provision now under consideration is so frequently made and has been considered in so many cases by this court that we deem it unnecessary to do more than state our conclusion, and cite a few of the authorities which discuss the question and fully sustain the conclusion reached. [Coffey v. City of Carthage, 200 Mo. 616; State v. Doerring, 194 Mo. 398; State ex rel. v. Slover, 134 Mo. 10.]
It is shown by the pleadings herein and by the records of the county court introduced in evidence that the ground, and the only ground, upon which the respondents refused the dramshop license to the relator, was that an election had been held under the Local Option Law in the city of Carthage, where relator proposed to keep his dramshop, and that as the result of such election the law had been declared in force and effect in that city. If the law had been so adopted it necessarily followed that respondents rightly refused the license. That much relator concedes, but he attacks the legality of the election and asserts the right to contest it by mandamus upon a number of grounds, every one of which would have been available in the statutory proceeding provided for that purpose in the Local Option Law. It therefore follows that as a specific and adequate remedy was provided by the statute, relief by mandamus must be denied.
The same result is reached if we consider the question from the point of view of the rights of the
It was within the power of the Legislature to designate the tribunal, the parties and the procedure for the contest of an election. [Sec. 9, Art. 8, Constitution of Missouri; State ex rel. v. Slover, 134 Mo. 10; State ex rel. v. Mason, 77 Mo. 189; State ex rel. v. Francis, 88 Mo. 557.] In the exercise of that power the General Assembly of this State enacted Art. 67 Ch. 43, R. S. 1909, prescribing a complete remedy for the contest of an election to office by a private citizen. Such right of contest did not exist at common law, and therefore the statutory remedy is exclusive. [State ex rel. v. Slover, supra; State ex rel. v. Mason, supra; 15 Cyc. 394; 7 Ency. Pl. & Pr. 377; Sedgwick, Const. Stat. and Cons. Law, 343.] In the Slover case, supra, l. c. 14, this court said: “It was clearly competent for the Legislature to create the office of marshal of Jackson county and to provide a tribunal to hear and determine all contests therefor and having done so in one and the same act the jurisdiction thus conferred is exclusive unless otherwise expressed or plainly manifested,” and, l. c. 15: “A contested election is a purely statutory proceeding in Missouri, both as-to the tribunal and the character of the proceeding* and was unknown at common law.”
In providing that the election under the Local Option Law “may be contested in the same manner as is now provided by law for the contest of the election of county officers in this State,” the Legislature adopted another statute or mode of procedure by reference, a practice in legislation discussed at length and upheld by this court in a number of recent decisions. [State v. Peyton, 234 Mo. 517; State v. Cox, 234 Mo. 605; State ex rel. v. Taylor, 220 Mo. 618.]
The 1909 amendment of the Local Option Law not only conferred the right upon “any qualified voter” to contest the election in accordance with the
The statutory remedy recognizes the right of the municipality or county holding the election to have its day in court to defend against an attack upon the result of the election as declared, whether such result be in favor of or against the adoption of the law, and likewise the right of the qualified voter to contest the election. Suppose the result should be wrongfully declared and promulgated as against the adoption of the Local Option Law, when the fact was otherwise. It is plain in such case that those favoring the adoption of the law could not have the legality of the ■election and the result thereof litigated, either by a proceeding in the county court or by mandamus in the circuit court. They would have but one remedy and that the remedy provided by contest under the statute. And if that remedy is exclusive as to those favoring the adoption of the law, no good reason can be given why it should not also be exclusive as to those opposed.
As shown by the facts of this record the relator appeared in the county court a year after the Local Option Law had been adopted and was in force and effect in the city of Carthage, and upon an application for a dramshop license, without the municipality or any legal representative of the State being a party to the proceeding, asked the court to hold the local option election and the result thereof invalid, and that an
Dissenting Opinion
DISSENTING OPINION.
— The principal opinion is predi-cated on the theory that, because we have a statute which authorizes a contest in local option elections, fhat therefore this relator had an adequate remedy -other than by mandamus, and for that reason the writ should be refused. It proceeds further upon the theory that the contest proceeding is an exclusive remedy, and there having been no contest within the time, the whole matter is foreclosed. To these propositions' I ■cannot assent. What the real merits of the case are, I have not investigated and therefore express no opinion, but if these two are the only reasons for refusing “the writ, I can see no reason why it should not go. There may be other reasons in the record, which would preclude the issuance of the writ, but it is only my purpose to voice my dissent as to the two pivotal •questions discussed in the principal opinion. These I take in inverse order.
1. Failure to contest an election does not preclude one having an interest from attacking the validity of the election. Suppose the record of the county court failed to disclose a petition sighed by the requisite number of petitioners. Suppose the record failed
But in local option elections and other special elections there are other things which of themselves render the whole proceeding void. Some of those things we have named. It will not do therefore to-announce the broad rule, as the principal opinion seemingly announces, that all matters are set at rest by a*, failure to contest within the statutory period.
2. Nor do we believe that the statutory proceeding by contest is an exclusive remedy. Prior to the statute we had a remedy by mandamus. The remedy has been so often recognized by the courts, that citation of the cases wherein the remedy has been recognized in local option cases would be useless. As lawyers we have tried them at the bar, both in circuit and appellate courts. There is nothing in this statute-
3. I said that I would not go beyond the principal opinion, and would express views upon hut the two points. I shall, however, go a step further, but still within the question discussed by the opinion. I agree that the title of the bill is not such as to make the new contest law invalid, hut will suggest that Sec. 9 of Art. 8 of the Constitution only speaks of contests for office and not of contests of elections upon public questions. When that section authorizes the Legislature to act, might not its authority he limited to the subject expressed in the Constitution? The Constitution closes the ballot boxes except as to “contested elections.” [Sec. 3, Art. 8, Const, of 1875.] The only contested elections spoken of in the Cons fitution are “of all public officers, whether state, judicial, municipal or local.” Not a word in the Constitution about contests over other matters. It is a question whether there is any constitutional warrant for the Act of 1909. This we offer only as a suggestion. What I desire to do is to dissent from the doctrine announced by my brother as above indicated under points 1 and 2 of these remarks.