State ex rel. Weber v. Tucker

Ellison, P. J.

— The question with us for decision is whether notice for an election to be held October 11, 1887, under the local option law, which is given by four consecutive insertions in a newspaper, beginning on September 17, continuing September 24, October 1, and ending October 8, thus covering a period of only twenty-four days, is the notice required by the law. The following is that part of the provision in relation to the subject, which it is necessary to notice : “That notice of such election shall be given by publication in some newspaper published in the county, and such notice shall be published in such newspaper for four consecutive weeks, and the last insertion shall be within ten days next before such election.” Elections under the local option act are special and are only to be held at a time to be fixed by the authority designated by statute, after the happening of certain conditions precedent. The notice called for by the law is absolutely essential to the validity of such election. McPike v. Penn, 51 Mo. 63; Stephens v. People, 89 Ill. 337; George v. Township, 16 Kan. 72; Haddax v. County, 79 Va. 677. The first insertion being on September 17, and the election occurring on October 11, by excluding the first and including the last day, which is the usual mode of computation, we have a period of only twenty-four days between the first insertion. and the election. Is this a legal notice ? The question may be stated thus: Does the law require a notice of four weeks, of seven days each, or does it only require a sufficient period of time to cover four consecutive weekly insertions, though such time be less than twenty-eight days ? In other words must there be four weeks notice of the election or a less time? Our answer is that there must be four weeks notice, — twenty-eight days notice, — of the election, the computation to be made by excluding the first day of the notice and including the day of the election. In this conclusion we are sustained by the authority of adjudicated cases, by the reading of the statute and by the object intended by the law-makers. A similar question was considered by the supreme court of the United States in Early v. Doe, 16 How. 610, where the statute was that public notice of the sale of real estate should be given, “by advertisement inserted in some newspaper once in each week for at least twelve successive weeks,” and it was held that the meaning of the law was that the notice should be twelve full weeks or eighty-four days before the sale. It is said in that case that “when we say that anything may be done in twelve weeks, or that it shall not be done for twelve weeks, after the happening of a fact which is to precede it, we mean that it may be done in twelve weeks or eighty-four days, or, as the case may be, that it shall not be done before.” In that case, as in this, the mode of notice was by publishing, the time of notice was for four weeks here, and twelve w'eeks there. In Market National Bank v. Pacific National Bank, 89 N. Y. 397, the statute required an order of publication to be published “ in two newspapers * * * not less than once a week for six weeks,” and it was held that the provision meant six full weeks or forty-two days. Miller, J., in that case very aptly says: “ The number of weeks is specified and not the number of times. * * * It does not provide for a publication six times within six weeks, but for a time not less than once a week for six consecutive weeks. The publication evidently means rather more than printing the notice. Its object is to give notice by means of the newspapers, and it cannot be claimed that such notice is given for six weeks before that time expires.” In In re North White Hall Township, 47 Pa. St. 156, there was an effort to divide the township ; commissioners were appointed for that purpose who were required to give notice of the time and place of meeting, in one English and one German newspaper “three weeks before the time of meeting.” The court said this requirement did not have reference to the number of insertions, but to the time. To the same effect are the cases of Collins v. Smith, 57 Wis. 284; Stanford v. Warne, 27 Cal. 171; Reed v. Sexton, 20 Kan. 195.

Of the authorities called to our attention by the respondents most all are on statutes essentially unlike the one we are now considering. Olcott v. Robinson, 21 N. Y. 150, was an execution sale under a statute, as stated by the court, requiring that the notice “ shall be publicly advertised for six weeks successively, as follows: 1. A written or printed notice thereof shall be fastened up in three public places in the town where such real estate shall be sold. 2. A copy of such notice shall be printed once in each week in a newspaper of such county, if there be one.” The reasoning of the writer of the opinion in that case is in favor of the view taken by respondents, but so far as the case can be taken as a precedent it is not applicable here. However it may be looked upon in this respect, standing ■ alone, its force must be considered as annihilated by the later case in 89 N. Y. 397, supra. In Andrews v. People, 84 Ill. 28, the statute required that the “ advertisement shall be published three times for three successive weeks.” This evidently meant that the advertisement should be inserted three times, in successive weeks, and this is what was properly held. In Ricketts v. Hyde Park, 85 Ill. 110, the statute is not set out and we are not able to say what force the decision should have. What little can be gleaned from it is not in accord with respondents’ view. In Sweet v. Sprague, 55 Maine, 190, the statute only provided for notice to be published “three weeks successively.” At first glance the case from our own supreme court of Haywood v. Russell, 44 Mo. 252, would appear to sustain the position taken by respondents, but it is more apparent than real. That case construes section 17, page 1225, Revised Statutes, 1855, which requires an order of publication to be published in a newspaper ‘ ‘ for four weeks successively, the last insertion to be at least four weeks before the commencement of the term at which defendants are required to appear.” The meaning of the first clause of this is limited by the last. The evident object of the section is to give four full weeks notice to a defendant before the first day of court, — how ? By publishing in a newspaper for four consecutive weeks, the last insertion to be at least four weeks before the sitting of court. The notice required is four weeks, which represents the time, the length of the notice. The mode of notice is by publication which must be completed before the time of the notice begins to run. It is not a notice till it has been inserted in a newspaper four successive weeks ; it is then, so to speak, a full-fledged notice and it must run at least four weeks before court. It is therefore well held by the court, in that case, that the publication need only be inserted in four consecutive weeks in such manner as that the last insertion will be at least four weeks before the commencement of the term.

No such considerations as the foregoing affect or limit section 3, Acts 1887; the ordinary meaning of the words employed are not restrained by any portion of the section, but taken together they clearly show the intent of the legislature. The notice is to be published for four consecutive weeks. The word “for” in this connection has reference to time. Webster defines the word to mean “the space or time through which an action or state extends; duration, continuance.” “To guide the sun’s bright chariot for a day.” It will be observed that the statute does not say the notice shall be inserted four times in as many consecutive weeks, nor does it say that it shall be published four times, but it says that it shall be published for four weeks. Now when we say that anything shall be done for a certain time, we mean that the period named shall cover that time, and when that time is twenty-eight days, it cannot be said to be covered by a period of twenty-four days, any more than it could be said to be covered by one day. If the law means only that there shall be four insertions in consecutive weeks, regardless of whether that will cover the full period of four weeks, in that case an election could be held within seventeen days after the first publication. The requirement for insertions in consecutive weeks does not necessarily require that such insertions shall be on corresponding days of the week, or that they shall be one week apart. It would only be necessary to insert once in each consecutive week. Thus insertions 'on Saturday,and on the three following Mondays would only cover a period of sixteen days, and yet it would fill the requirement of four insertions in four consecutive weeks. If we suppose the law had said that the notice should be published for one week, instead of for four weeks, then if for four weeks means four insertions, without regard to time, for one week would mean one insertion without regard to whether the period of a week had elapsed — and thus an election might be held-on one day’s notice. The latter clause in the act quoted above, reading “ and the last insertion shall be within ten days next before such election,” evidently does not limit the clause preceding it, as the latter clause can have no reference to the length of the notice, for under it the election might be held at any time, from one day to ten days. That clause was simply to insure the election being held at a time close after the notice and not so far removed as to, perhaps, escape the attention of voters. Our cons’truction of section 3 is made to appear to meet the intention of the law-maker by reference to section 5 of the same act. That section, in providing for notice that the law has been adopted, reads, “the county court or municipal body ordering such election shall publish the result of such election once a week for four consecutive weeks in the same newspaper in which the notice of election was published ; and the provisions of this act shall take effect and be in force, from and after the date of the last insertion of the publication,” etc. The difference in the two sections is wide. The words, “once a week” and “the date of the last insertion,” make it plain that it was intended by the last section that the notice should be printed four times in four consecutive weeks without regard to the number of days. The contention of respondents would lead to an identical construction of the two sections, which we think would be wholly unwarranted.

The result following from the views herein expressed is, that we regard the election as void, and that the relator is entitled to a peremptory writ. The judgment will, therefore, be reversed and the cause remanded with directions to the circuit court to issue the writ.

The other judges concur.

Case Details

Case Name: State ex rel. Weber v. Tucker

Court Name: Missouri Court of Appeals

Date Published: Dec 20, 1888

Citation: 32 Mo. App. 620

Court Abbreviation: Mo. Ct. App.