152 Mo. App. 345 | Mo. Ct. App. | 1911
Defendant was convicted on a charge of an illegal sale of liquor in violation of the Local Option Law and has appealed.
The only error urged upon our consideration in this court is one relating to the publication of notice of the result of a local option election. The order for the publication of notice was made at a special term' of the couny court of Wayne county, and appellant now insists that this special term of the court was not legally convened, and, therefore, the court had no authority to act, and the order for the publication of notice was, therefore, void, and hence, the Local Option Law did not go into effect in Wayne county. The record of the court shows that on March 1, 1906, the
“Court met pursuant to call by the presiding judge, James Grisham, with the following officers present: James Grisham, presiding judge of the county court; A. Blain, associate justice of the county court, district No. I; D. Cozart, associate justice of the county court district No. 2; Almon Ing, prosecuting attorney, and William Woods, clerk, when the following business was transacted.”
No complaint is made of the form of the order for the publication, nor the proof of the fact that publication was made as directed, but the whole contention rests upon the fact that the court did not legally convene, and the position is taken that the court is a court of limited jurisdiction, and that every fact necessary to give it jurisdiction in relation to any proceeding in that court must appear by the record of the court.
We are unable to find any case in this state where this question has been directly passed upon, but the principle contended for by appellant was held in some of the early cases in this state and was made to apply to all courts of limited jurisdiction in which the county court and the probate court were placed upon an equality, and as both of these courts are courts of limited jurisdiction we take it that any rule of law applicable to one is equally applicable to the other. It was- held in a number of the early cases in this state, among them Strouse v. Drennan, 44 Mo. 289; Gibson v. Vaughan, Adm., 61 Mo. 418, and several cases earlier than these, that the facts necessary to show jurisdiction of probate and county courts must appear from their records, but these cases were expressly overruled in the case of Johnson v. Beasley, 65 Mo. 250, and the principle announced in that case that while the probate and county courts are courts of limited jurisdiction and their pow
Jurisdiction in all matters pertaining to local option elections in a county outside certain cities is placed by the statute in the county court, and under the authorities above cited, such court is on a level with a court of general jurisdiction as to such matters.
When the record of a court of general jurisdiction is silent about a matter necessary to confer jurisdiction the existence of such matter will be presumed. [State v. Baty, 166 Mo. 561, 66 S. W. 428; Hadley v. Bernero, 103 Mo. App. 549, 556, 78 S. W. 64.] Applying this principle to the case in hand it would be our duty to presume, in the absence of any showing to the contrary, that the county court had jurisdiction to make the order at the time it made it, and hence, that the court had been legally convened in special term. [Hicks v. Ellis, 65 Mo. 176, 183, 184.]
The record, however, in this case is not entirely silent, but it recites that the county court met pursuant to a call by the presiding judge. The presiding judge is authorized by statute to call a special term of the court. Statute 1909, section 40-88, and if the court convened pursuant to his call it was legally convened, unless he had failed to give the notice required by the statute. [Section 4089.] Whether he had given
The statute authorizing the calling of a special term of a county court is as follows:
“Section 1088. — The president, or any two judges, of the county court may order a special term whenever the business and interests of the county may require it.”
It is contended by appellant that the casting up of the vote in a local option election and ordering the publication of notice thereof is not business of the county, and the county as such was not interested therein, and hence, the presiding judge could not call a special term of the county court for the purpose of transacting this business.
The statute nowhere requires that in calling a special term the particular purpose for which it is called shall be designated, nor is the power of the court to act restricted to the matters which may have induced the call. The provision for a special term is for the purpose of providing a means by which the court can be convened at times other than a regular or adjourned term, and when convened, it may transact any business that may be legally brought before it. Further, the power to.determine when a special term is necessary is left exclusively to the judge or judges who are authorized by law to call the .term and their discretion in making the call cannot be questioned.
Our conclusion is that it was not incumbent upon the state in this case to show that the notice of the special term of the county court provided by statute was given, but if, as a matter of fact, it was not given that was a matter of defense. The judgment will be affirmed.
