39 Mo. App. 410 | Mo. Ct. App. | 1890
delivered the opinion of the court.
This was a prosecution under the statute known as the local option law. The indictment charges “ that, at a term of the county court of Scott county aforesaid, held at the court house in the town of Benton, in said county, commencing on the seventh day of November, 1887, there was presented to the county court of said county a petition signed by more than one-tenth of the qualified voters of said county, and the said petition asked and prayed the said county court to order a special election in, and for, said county, and submit to the qualified voters voting thereat to determine whether or not the provisions of the local option law should take effect and operate in the county of Scott aforesaid, and to determine whether or not spirituous and intoxicating liquors, including wine and beer, should be sold in said county. That said county court of said county, then and there being satisfied of the sufficiency of said petition, at its said November term, 1887, on the ninth day of November, 1887, did appoint December 9, 1887, as the day, by its order made of record, that a special election should be held at all the voting precincts in said county of Scott, on the said ninth day of December, 1887, and, by its order so made of record, to submit to the qualified voters of said county, voting at said special
It was admitted by the defendant, for the purposes of the trial, that on the thirteenth day of October, 1888, he sold one quart of whiskey at the price of one dollar, by virtue of his license as a merchant from the city of Commerce; that said sale was made within the corporate limits of said city; and that said city has a population of less than twenty-five hundred inhabitants.
This admission left, as the only question for the consideration of the court, (1) whether the local option law had been regularly adopted by the qualified voters of Scott county, and (2) the effect of said law on a sale, claimed to have been made as a merchant under a merchant’s license issued by the town of Commerce. We shall take up the points which are made by counsel for the appellant in the order in which they are presented.
I. The first objection is that the indictment does not aver that the notice of the election was published for ‘ ‘four consecutive weeks,” or twenty-eight days, the last insertion being “within ten days next before such election.” It will be observed, on an inspection of the indictment, that it does so allege. It states that, “prior to said special election, general publicity and notice thereof were duly given and published by four insertions, for four consecutive weeks, in the Benton Record, a newspaper published in said county, the last insertion being within ten days next before the election.” This is almost in the exact words of section 3 of the statute. Act of April 5, 1887, Laws of 1887, page 181. There is nothing in the decision of the Kansas City Court of Appeals in State ex rel. v. Tucker, 32 Mo. App. 620, which requires us to construe an averment in the very language of the statute, as meaning something different from the statute.
But we take occasion to observe, as we did in the case of State v. Searcy, ante, p. 393, that it is not
II. The next objection is that, as the evidence shows, that the defendant sold as a merchant, if he violated any law, it was the “merchant’s act.” This act, as amended by the act of March 24, 1887, recites: “No such license shall authorize any merchant to sell vinous, fermented or spirituous liquors in any quantities, to be drank at his store, stand or warehouse, or other place of business, nor in any quantity less than five gallons, for any purpose whatever. Any merchant who shall violate any of the provisions of this section shall be deemed guilty of a misdemeanor, arid on conviction shall, for the first offense, be fined not less than one hundred nor more than five hundred dollars, or by imprisonment in the county jail not less than three nor more than six months.” Session Acts, 1887, p. 217.
We shall have to construe the local option law as meaning what it says. And it says, “that if a majority of the votes passed at any election held under the provisions of this act shall be against the sale of intoxicating liquors, it shall not be lawful for any person, within the limits of such county * * * to directly or indirectly sell, give away or barter in any manner whatever, any kind of intoxicating liquors or beverage containing alcohol, in any quantity whatever, under the penalties hereinafter prescribed.” To this it creates certain exceptions which need not be noticed.
III. The next objection is that the record of the county court, touching the adoption of the local option law in Scott county, which was put in evidence, does not recite the publication of the notice of the election, as required by section 3 of the local option statute. The statute recites “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, and such other notice may be given as the county court or municipal body ordering such election may think proper, in order to give general publicity to the election.” The order of the county court, directing the election to be held, ordered that “notice of such election be given by publication in the Benton Record, a newspaper published in said county, which notice shall be published for four consecutive weeks, the last insertion to be within ten days next before such election.” The statute nowhere provides for any form of proof of publication being made to the county court and spread upon the records of that court; and in the absence of such a statutory provision, if the county court should have required proof of publication in the mode prescribed for judicial notices and had spread this upon its record, it may well be doubted whether it would have been admissible in evidence at all as proof of the fact, in a prosecution of this kind, since it would be a record which the law does not require to be kept. It is the fact of notice of the election which the statute requires, and it was proved' without dispute .that the notice had been published in compliance with the order of the county court, which it is perceived followed the terms of the statute.
IY. The same disposition may be made of the objection that the county court did not spread upon its
V. It is ¡unnecessary to dwell upon the objection that the statute, under which this prosecution took place, did not supersede the special charter granted by the legislature to the town of Commerce in 1874, under which the defendant claims to have had a merchant’s license to sell liquor. The local option law was intended to be of universal operation within whatever limit of territory it should be put in force by a vote of the people in compliance with its terms. Its language is irreconcilably opposed to the conclusion that any rights repugnant to it, existing under precedent town charters or other local statutes, can be allowed to stand. It, therefore, repeals by necessary implication every thing in the charter of the town of Commerce which may be opposed to its terms. State ex rel. v. Francis, 95 Mo. 44; State ex rel. v. Dolan, 93 Mo. 467, 473; Ewing v. Hoblitzelle, 85 Mo. 64. But this court held (In re Wooldridge, 30 Mo. App. 612, 619), that the local option law applies to all towns, whether operating under a special charter or not. In .that case the question was
YI. We further observe upon this record, as we observed in the case of State v. Searcy, ante, p. 392, 'that it was unnecessary for the state to assume the burden of alleging and proving in detail the steps which led to the adoption and putting in force of the local option law within the limits of the county. We refer to the opinion just delivered in that case for a statement of our views as to what it is necessary for the state to allege and prove, and what is open in the way of defense to the accused.
The judgment will be affirmed.