34 Mo. App. 325 | Mo. Ct. App. | 1889
delivered the opinion of the court.
This is a proceeding by mandamus, to compel the defendants as judges of the county court of Newton county, to issue to the relator, a license to keep a dram-shop in the city of Neosho, in said county. The circuit court denied the peremptory writ, dismissed the proceedings, and the relator prosecutes this appeal.
The records of the county court of said county show, that under the dramshop law of the state, known as the “Downing Law,” the relator was entitled to the license. But the defendants justified their refusal to grant the license, upon the ground that the city of Neosho, was a city of twenty-five hundred inhabitants, and that on the ninth day of August, 1887, at an election held for that purpose, the provisions of what is known as the “ Wood Local Option Law,” were adopted by a vote of a majority of the tax-paying citizens of said, city. That said local option law was then in force in said city, and that on account thereof, the defendants could not legally issue said license. The relator answering back said that said election was void ; (1) Because the election was not held within forty days after the reception of the petition for said election by the board of alderman of said city. (2) Because two special elections, to-wit: an election to fill a vacancy in the office of city marshal,
That the.special elections, referred to by relator were held within sixty days after the local option election, is a conceded fact. But we cannot agree with the relator that on account of this, the local option election was rendered void and imperative. Section two of the local option law provides, “ that no election under said law shall be held within sixty days of any municipal or state election,” etc. The evident intention of the law making power of the state was to free the elections on the whisky question, from all partisan and local influences, and that such elections should be uninfluenced by the excitement aroused by other recent elections, or by contemplated elections. But it is not every municipal or other election held within sixty days after a local option election, that will invalidate the latter. If either one of said special elections have been ordered, or even contemplated at the time of the local option election, the relator’s objection would have some force. But the record shows that the regularly elected city marshal did not resign for almost a month after the local option election, and there is nothing to show that the election on the water-works question was even contemplated until the twelfth day of September, 1887, which was more than a month after the local option election. It would be judicial nonsense to hold that these subsequent elections, that were not even contemplated at the time, prevented a free expression of the will of the voters at the local option election. . And this is not in conflict with the decision of this court in case ex parte R. S. Woolridge, 30 Mo. App. 612. The • facts in the two cases are' different.
We think the New York rule is too narrow, and that the law of statutory interpretation, as declared by the Kansas court, is sustained by both reason and authority. The general rule is that the time and place of holding an election, and the legal qualification of the electors, are of the substance of an election, and a failure to observe the law, in respect to such matters, will
While the general rule is that the time for holding any election is essential, and that a failure to observe the requirements of the statute in this respect, would render the election invalid, yet if it appears, from the general scope and policy of the particular statute in question, that the contrary is intended, then the latter interpretation should prevail.
In the statute under consideration the legislature certainly had some good reason for embodying in it the provision that the proper authorities, when petitions were presented, should order elections within a certain time. We think that the legislative design was to prevent county courts and city councils from thwarting the operation of the law, either by failing to call an election, or fixing some day that would render the election invalid, because held within sixty days of some other state or municipal election. Therefore, we think, that the object was to place it within' the power of the
Counsel for defendants contend that mandamus is not the proper remedy in cases of this kind. This is untenable. Mandamus will lie to compel officers to perform duties which are purely ministerial. High on Ex. Rem. [2 Ed.] section 88, says : “ When the power of granting license is lodged with a particular officer, as an official duty, and he is required by law to grant certain licenses to persons tendering sufficient surety and paying certain fees, his only discretion in the matter being as to the sufficiency of the surety, the writ (mandamus) will go against him to compel the performance of this ministerial duty.”
For the reasons stated, the judgment is reversed and cause remanded; and the circuit court instructed to pro ceed in accordance with this opinion. All concur.