139 Mo. App. 221 | Mo. Ct. App. | 1909
Lead Opinion
OPINION.
(after stating the facts). — The statute concerning dramshops (R. S. 1899, sec. 2993) provides that when the petition for a dramshop license is signed by two-thirds of the assessed taxpaying citizens in the block, and its requirements are complied with, the county court shall grant such license. This statute is mandatory when the petitioner complies with the requirements. The question then resolves itself into one of legal duty that may be enforced by mandamus. [State ex rel. v. Turner, 210 Mo. 77, 107 S. W. 1064; State ex rel. v. Meyers, 80 Mo. 601; Bean v. County Court, 33 Mo. App. 635; State ex rel. v. McCammon, 111 Mo. App. 626; Harlan v. State (Ala.), 33 So. 858.]
“Provided, that at an election ordered under the provisions of this section, no one shall be entitled to vote who is a resident of any incorporated town having a population of twenty-five hundred inhabitants or more.”
This proceeding by mandamus was an indirect attempt to contest the validity of the local option election. The adjudication of the validity or invalidity of such an election is a collateral question to the direct relief sought — namely, the issuance to relator of a dramshop license. The relator’s right to such license depends upon the adjudication of the collateral question as to whether the city of Peirce City at the time the petition for the election was presented had a population of twenty-five hundred inhabitants or more.
The county court, at the time the petition was presented to them asking for a special election, heard the evidence on both sides and found “that the city of Aurora was the only town or city within said county having a population of twenty-five hundred inhabitants or more, and that the city of Peirce City was a city within said county having a population of less than twenty-five hundred inhabitants.” We cannot, in the present indirect attack on that finding, review the evidence upon which the judgment of the county court was
It is a settled rule that mandamus cannot be made the instrument for giving a court jurisdiction of litigation on collateral matters. [State ex rel. v. Martin (Fla.), 46 So. l. c. 426; Underwood v. Commissioners (Conn.), 35 Atl. 274; Kennon v. Blackburn (Ky.), 104 S. W. 968; Hammond v. Darlington, 109 Mo. App. l. c. 345; 2 Spelling on Injunctions and Other Extra. Rem. (2 Ed.), sections 1386-1440; High’s Extra. Leg. Rem. (3 Ed.), section 198.]
The finding of the county court that one-tenth of the qualified voters signed the petition and that Peirce City was a city with a population of less than twenty-five hundred inhabitants is res adjudicada, and such finding cannot be attacked in the present collateral proceeding. [State v. Rinke (Mo. App.), 121 S. W. 159; State v. Searcy, 39 Mo. App. 393; State v. Dugan, 110 Mo. 138, 19 S. W. 195; State v. McCord, 207 Mo. 519, 106 S. W. 27, 123 Am. St. Rep. 410.] “Whether the vote was legally taken or not is entirely collateral.” [People v. Hamilton, 58 N. Y. Supp. 959.]
The total vote in Lawrence county at the local option election was 2686 votes against the sale, and 1005 votes for the sale of intoxicating liquors, a majority agáinst the sale of 1601 votes. This decision against the sale of intoxicating liquors “should be upheld by every reasonable intendment.” [People v. Hamilton, supra.]
From the foregoing examination1 of this case, it clearly appears that the law has given us its mandate to uphold and maintain and not invalidate the expressed will of the electors of Lawrence county at the local option election.
The order of the trial court overruling relator’s motion for judgment and quashing the alternative writ and dismissing his bill is hereby affirmed..
Rehearing
In this case, appellant has filed a petition for rehearing and has argued the same with great ardor and insistence.
Upon reconsideration, we are unáble to shut our eyes to the fact that one of the enumerators who took the census in question in the city of Peirce City was prosecuted for a misdemeanor under section 6300 of the Revised Statutes of 1899 for will fully falsifying the returns of such census; that he pleaded guilty to the criminal charge, and at the present term of this court the judgment of conviction was affirmed.
Aside from any question of fraud in the taking of this so-called census, the argument of appellant’s counsel proceeds upon false premises in that he assumes in this case that the county court of Lawrence county and all other courts were required to take judicial notice of the taking of the census in question and the entry of the result on the records of the city. The paramount question is — was there a census taken such as is contemplated by the statutes under section 3028 and section 6300? A mere colorable proceeding on the part of the board of aldermen without any substantial compliance with the law as to the taking of such census for the purpose of defeating the adoption of the Local Option Law in the city of Peirce City would not import any notice of the number of the inhabitants of the city of Peirce City.
A question arose for consideration before the county court of Lawrence county at the-time the petition for the local option election was filed, whether any census, in the legal acceptation of that term had in fact been taken in the city of Peirce City; that is, whether any enumeration was made that could be called a “census” within the meaning of sections 3028 and 6300 of the Revised Statutes of 1899. The “census,” as provided for by these sections of the statutes, can only mean an
The petition for rehearing is accordingly denied.
