116 Mo. App. 29 | Mo. Ct. App. | 1906
The defendant was tried and convicted in the circuit court of Mercer county for selling intoxicating liquors in less quantity than four gallons. He has prosecuted his appeal to this court.
The particular law, he was accused of violating, was what is known as the local option law, which, according to the allegation in the information, had been duly
The election in question was held on the 6th day of September, 1887; and the notice for the election was published in two weekly newspapers issued in Mercer county, the Princeton Telegraph and the People’s Press. In the Telegraph, it was inserted August 4, August 11, August 18, August 25, and September 1. In the Press, it was inserted August 3, August 10, August 17, August 24, and August 31. It was thus inserted five times consecutively in each paper and the last publication in each was within ten days of the election.
As we understand defendant’s position, it is this, that the first four publications ending August 24 in the Press and August 25 in the Telegraph constituted the notice required by the statute; and that the election held on September 6, not being within ten days of either the 24 or 25, was void. That position ignores the fifth insertion in the next week’s issue and assumes that it should not be considered as a part of the notice. As the first four publications did not cover a period of twenty-eight days, it is evident that defendant’s construction of the statute is that twenty-eight days’ notice is not necessary. If, however, twenty-eight days’ notice is nec
The defendant’s position is directly in the face of the construction we put upon the statute in that case; which brings up the inquiry whether that construction is sound. The view, we there stated, has been reiterated by the courts of appeals: Bean v. Barton County Court, 33 Mo. App. 635; State v. Kaufman, 45 Mo. App. 656; State v. Kampman, 75 Mo. App. 188; State v. Martin, 83 Mo. App. 55. And the case has been several times cited by the Supreme Court with no intimation that it had been wrongly decided (120 Mo. 418; 123 Mo. 346). On the contrary, it seems to have been regarded as correct and approved of in an opinion by Judge Burgess in Young v. Downey, 150 Mo. 317, 324, 330.
But it is suggested that later cases in the Supreme Court (Russell v. Croy, 164 Mo. 69, and Ratliff v. Magee, 165 Mo. 461) announce a construction of similar statutes, which is opposed to the view taken in State ex rel. v. Tucker. That is a mistaken idea. On the contrary, those cases affirmatively approve the construction of the statute, which we adopted in that case. The case
As stated at the outset, defendant’s position ignores the publication of the notice made in the fifth week. He assumes that that publication was unauthorized and that the fourth publication completed the notice, and that being more than ten days prior to the election, the election was void. It may be suggested that the following portion of Judge Valliant’s opinion in Russell v. Croy gives countenance to defendant’s course of argument, viz: “The four' weeks here called for are not any four weeks the Secretary of State may select prior to the election, but they must be the four weeks next preceding the election. If the Secretary of State had chosen to begin the publications on the first day of September and run them into the first week in October so as to secure, with the varying days of publication among the newspapers, a full period of twenty-eight days, that would not have answered the requirement of the Constitution, because the four weeks so covered would not have been those next preceding the election. And if he had run the publication so begun, through the month of October and thus covered more than twenty-eight days or four weeks, still the only period of the publication that would have answered the requirement of the law would have been the four weeks next preceding the election, the rest would have been in legal effect as if it had not been. If the publication should be for four weeks and it began five weeks before the day of the election, it would not have covered the period called for by the Constitution, because it
That language in no way applies to the statute in the case before us. The statute in that case specifically named the weeks in which the publication should be made, which were the four weeks which immediately preceded the election. Hence, no other four weeks would answer and no time except the time running during the course of the four weeks preceding the election would be counted as of any effect. But the local option statute does not specify any particular weeks in which the notice shall be published, nor, as we have already shown, does it direct that a given number of publications be made. It merely directs that the publications shall continue consecutively until the period of twenty-eight days shall be covered, and that the last insertion necessary to make the twenty-eight days must be within ten days of the election.
An additional view of the construction of the statute presented by counsel, concedes that twenty-eight days’ notice must be given, but insists that such notice consists of four publications; that no> other publication than the four are recognized; that twenty-eight days must elapse between the first publication and the election, and the election must be within ten days of the last one. Put into practical application that construction would only leave one of four days in which any election could be held, instead of one of ten as contemplated by the statute. Thus, suppose the first publication to be on the first of August, the fourth publication would be on the twenty-second, but twenty-eight days would not elapse from the first publication until the twenty-ninth; and the election, according to this view, could not be held sooner than that day. And it could not be held later than the first of September, as that would put it off more than ten days from the last publication. So the time in
The idea, that the statute requires only four publications, or four insertions of the notice possibly springs from assuming that it should be published in a weekly paper. But the statute does not require the publication in a Aveekly paper; it may just as properly be published in a daily. If published in the latter, would any one be found to say that the publication should cease before twenty-eight days had ended? It ought then to be clear that one length of time should not be required for one kind of publication and a different time for another kind of publication.
It follows from the foregoing that the local option law was legally adopted in Mercer county, and that the, conviction of the defendant should be affirmed.