149 Mo. App. 694 | Mo. Ct. App. | 1910
This is a prosecution commenced by information filed in the circuit court of Madison county by the attorney of that county against the defendant, for that on or about the 19th day of Septem- ' ber, 1907, the Local Option Law having theretofore been adopted and being then in force and effect in Madison county, he did then and there unlawfully sell to one Gahring, “one pint of ‘Meth,’ the said ‘Meth’ being a beverage containing alcohol,” for a price named, without the defendant then and there having any authority to make said sale, contrary, etc. On a trial and conviction defendant appealed to the Supreme Court, claiming that the construction of the Constitution of this state and
The main errors relied on in this court are the overruling of the motion to quash, the exclusion of evidence offered attacking the election at which it is claimed the Local Option Law was adopted in Madison county, the claim of an indictment pending for the same offense and which was returned prior to the filing of this information, and the claim that as there is no evidence that “Meth,” the article sold, was an intoxicating liquor, its sale did not come within the prohibition of the Local Option Law. Apart from these the points presented in the very able brief argument of counsel for the appellant go to the constitutionality of the Local Option Law, we having the benefit of the same brief and arguments that were filed in the Supreme Court by counsel for the defendant as well as by the then Attorney-General of the state. These constitutional questions not being open to our determination it is only necessary to notice those above mentioned. Covered by the motion to quash, as well as by the special plea interposed in connection with the plea of not guilty, is the contention that under the Act of March 13, 1901, amending section 2476, Revised Statutes 1899 (see Acts 1901, p. 138), this defendant having been proceeded against by indictment before the present information was filed, the information should have been quashed and he should not be required to answer to the information. The difficulty with -this contention is that it does not appear, either by the motion to quash, or by any evidence in the case, that the sale
The other point covered by the motion to quash, as well as also attempted to be made at the trial under the plea of not guilty, goes to the adoption of the Local Option Law in Madison county. This point could not be made by motion to quash, for it involved a question
We are cited to no case directly bearing upon this particular proposition, but on the general principles that have been recognized in this state, where the validity of adoption of the Local Option Law has been under consideration, we hold that this evidence was properly excluded. It is the kind of evidence that would be entirely competent if the election had been contested in a direct proceeding; a proceeding involving a direct attack upon the declared result of the election. While it is true that the Local Option Law provides that the election “and the result thereof may be contested in the same manner as is now provided by law for the contesting of elections of county officers in this state” (R. S. 1899, sec. 3131), the Kansas City Court of Appeals, in the case of Kehr v. City of Columbia, 136 Mo. App. 322, 116 S. W. 428, and the Springfield Court of Appeals, in the case of Haas v. City of Neosho, 139 Mo. App. 293, 123 S. W. 473, have held that contests of elections held under the Local Option Law are not possible; that the law for contesting elections of persons for county offices, which was attempted to be applied to such elections, requires a contestor who was a candidate on one side, as against the candidate on the other as contestee; that no person being a candidate for election to office at these elections, no contest for office being involved in a local option election, there could be no proper parties to institute or defend such a contest; that therefore a local option election is not open to contest for lack of sufficient statutory provisions which can be made to fit the case. We are inclined to accept these decisions as correct expositions of the law and to treat the subject, as did those two learned courts, as one of legislative, omission beyond the curative power of the courts.
It is the settled law of this state that contests
Nor does it follow that by reason of the failure or lack of statutory provisions for a contest that the result of the election can be attacked collaterally. As before stated, it is the uniform decision in this state that the county courts act judicially in these matters of ordering the election under the Local Option Law and in ascertaining and declaring the result, and when jurisdiction is vested in these courts by the filing with them of a legal petition, and when their subsequent acts, involving the notice and its publication and the return and declaration and publication of the result of the election are regular, then no court will go back of these adjudications, as in effect they are, and in a collateral attack, as is this at bar, enter upon an examination of the conduct of the election itself. We hold the the action of the county court, in the determination of the result of this election, was a judicial act on its part, and all the steps taken by it appearing regular and in accordance with the law, its declaration of the result is not here open to attack. Hence the motion to quash was properly overruled, and when the evidence to sustain its allegations was offered at the trial, it was properly rejected.
The state having' introduced in evidence, without objection, the records of the county court, showing the proceedings connected with the submission of the question of the adoption or rejection of the Local Option Law to a vote of the people, and no irregularity or departure from the requirements of the law appearing in these records, the learned trial judge very properly instructed the jury that on the date of the alleged sale the Local Option Law was in force in Madison county.
The only remaining question in the case is as to whether the sale of “Meth” constitutes the sale of an article prohibited by the Local Option Law and its sale within the prohibitions of the law. It will be noted that the information does not charge “Meth” to be an intoxicating liquor but charges it to be a beVerage containing alcohol. That being so, if it is a fact that it contained alcohol then its sale in counties in which the Local Option Law prevails is prohibited. It is true that the form of the ballots, as also the notice of the election is, “for the sale of intoxicating liquors,” or “against the sale of intoxicating liquors.” But while that is true, the statute (section 3032, R. S. 1899) in so many words declares that if a majority of the votes cast at any election held under the provisions of the article shall be against the sale of intoxicating liquors, “it shall not be lawful for any person ... to directly or indirectly sell ... in any manner whatever any kind of intoxicating liquors or beverages containing alcohol in any quantity whatever under the penalties hereinafter prescribed.” This provision of the law is too plain to require construction. The law-making power of the state has said, in.so many words, that when the Local Option Law has been adopted and is in force in .a county, it shall be unlawful to sell any beverage containing alcohol in any quantity whatever in that county. The law further, in effect, declares that if the majority of the voters vote “against the sale of intoxicating liquors,” no “beverage containing alcohol in any quantity whatever” shall be sold in the community so voting. There was no pretense what
While hardly a matter within our jurisdiction, it is not out of place to say that the point made by counsel for appellant, that the decision of our Supreme Court in the case of State v. Fulks, 207 Mo. 26, 105 S. W. 733, covers this case, is not maintainable. It is true that it was held by our Supreme Court in that case that the title of the Local Option Act of 1887 clearly indicates that it was the purpose of the Legislature “to prohibit the sale, directly and indirectly of intoxicating liquors in those counties whicli should adopt the said law and that this purpose is indicated in the body of the act itself.” Counsel for appellant quote this in support of their claim that this decision holds that the Local Option Law applies alone to intoxicating liquors; that this excludes beverages which are not intoxicating. That is a misapprehension of the scope of that decision. The question in decision in the Fulks Case Avas on the use of the word “sale,” not on the words “intoxicating liquors.”
We find in the very instructive brief of the learned
We find no reversible error in the action of the trial court in giving and refusing instructions.
On consideration of the case we have concluded that the verdict and judgment of the circuit are correct. That judgment is affirmed.