157 Mo. App. 328 | Mo. Ct. App. | 1911
Lead Opinion
— From a conviction for violation of the Local Option Law in the circuit court of Newton county defendant appeáled to the St. Louis Court of Appeals, and the opinion was there rendered affirming the judgment. A motion for rehearing was filed and sustained. While the cause was pending in the St. Louis Court of Appeals upon rehearing, this court was created, and the cause transferred to this jurisdiction. Cox, J., being disqualified to sit, E. P. Mann was elected to sit in the case as special judge.
Appellant’s first contention is that since he was charged in three counts of the information with violation of the Local Option Law, and in the fourth count thereof with violation of the Dramshop Act, all under one verification, the counts are so inconsistent and contradictory that the verification amounts to no verification in fact, and that his motion in arrest, upon the authority of State v. Weyland, 126 Mo. App. 723, 105 S. W. 660, should have been sustained.
In the Weyland case there were three counts in the information under one verification. The first count charged that defendant was a dramshop keeper, and that he sold liquor on Sunday. Another count charged that he sold liquor on Sunday, saying nothing about his being a dramshop keeper. The other count charged that
Appellant’s contention that no proof of venue was offered or made by the state is correct. Only one witness testified to the sale, and he merely said that he bought wine on the day named of the defendant, in Newton county, Missouri, and paid for it.
The information alleges and the proof shows that local option was in force in Newton county outside of the city of Neosho, which had a population of over twenty-five hundred. The state entirely failed to prove, even inferentially, whether the sale was made within or without the limits of the operation of o the law, and for this failure alone the cause must be reversed and remanded for a new trial.
Appellant further contends, however, that the undisputed record in this cause disclosed affirmatively the fact that the Local Option Law was never adopted in any part of Newton county, and therefore he cannot be convicted of its violation. It is necessary to dispose of that question here now. Touching appellant’s contention in this behalf, it is not necessary to go into every detail further than to say that at the trial the state offered no proof of the publication of the notice of the
• Said census was also taken in conformity with the provisions of section 6300, Revised Statutes 1899 (now section 9639, R. S. 1909), which section requires all courts to take judicial notice of the population so shown by said census. Appellant contends that the case stated brings the facts and the law squarely within the term of State v. Mitchell (St. Louis Court of Appeals) 115 S. W.
“If a majority of the votes cast at any election held under the provisions of this article shall be 'against the sale of intoxicating liquors,’ it shall not be lawful for any person within the limits of such county (lying outside of the corporate limits of any city or. town having at the date of said order of election a. population of twenty-five hundred inhabitants or more) or city, as the case may be, 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.”
I think this is an express declaration that the election authorized by the Local Option Law is to be held for the purpose of determining whether intoxicating liquors .Shall.be sold in that part of the county outside of the
It has been suggested that the fact that the Legislature fixed the qualifications of voters at local option elections as of the day of election is indicative of the legislative intent that the day of election and not the day the election is ordered governs the status of the territory to be affected. I do not think so. It is true that the Legislature has fixed the qualifications of voters as of the day of election. In doing so it simply followed the usual rule. -It is competent for the Legislature to fix the qualifications of voters at any election as of any day it sees fit. So also it was competent for the Legislature to fix the day the election was ordered as the time, when it should be ascertained what territory is to be affected by the result of the election when held, and this it seems to me it certainly did by the section of the statute last quoted.
Whether or not the city of Granby, after filing its census showing over twenty-five hundred inhabitants, could have called an election later, within the four years, and voted itself out of the operation of the law is not involved here, and not necessary for us to decide.
This opinion being in conflict with State ex rel. v. Mitchell, 115 S. W. 1098, decided by the St. Louis Court of Appeals, and State ex rel. v. Cass County, 137 Mo. App. 698, 119 S. W. 1010, decided by the Kansas City Court of Appeals, this cause is hereby certified to the Supreme Court, in accordance with the mandate of the Constitution.
Concurrence Opinion
SEPARATE CONCURRING OPINION.
— Questions in addition to those passed upon by my Brother Mann in his opinion are, I think, presented by appellant and are properly within the record and for consideration. While I am entirely in accord with the conclusions reached in the opinion of the learned Special Judge, I find additional grounds for concurring in the result which he has reached, and which I deem it important to be stated in this case.
The defendant at the trial offered in evidence by way of his defense a census properly taken by the city of Granby in Newton county. The petition for an election under the local option law was presented to the county court of Newton county and an election ordered on May 2, 1904. The census was taken by the city of Granby on June 3, 1904, showing a population of 2557 inhabitants. On June 8, 1904, the result of the local option election in the county was properly canvassed and the entry was made that such canvass showed that local option had carried in said county by a majority of 146 votes. The county court ordered the result to be spread upon the records and caused due publication to be made of the result thereof, and no question is raised in this case but what the proceedings in calling the local option election, canvassing and publishing the result, and all other proceedings in regard to . such matter, were in strict conformity to the statute in such cases, unless they were
The only force of this evidence and the only purpose for which the Granby census was offered by defendant was a collateral attack on the proceedings of the county court in regard to a subject-matter over which the statute had given the county court exclusive jurisdiction, and upon the state’s objection to the introduction of such census as being irrelevant and immaterial the court should have excluded it. Presentation of a proper petition for a local option election gave the county court of Newton county jurisdiction of the subject-matter. [State v. McCord, 207 Mo. 519, 106 S. W. 27; Daubie v. Ossman, 142 Mo. l. c. 505, 54 S. W. 338; State ex rel. Brown v. Wilson, 216 Mo. 215, 115 S. W. 549; Halter v. Leonard, 223 Mo. 286, 122 S. W. 706.] A collateral attack is defined as one in which the invalidity of proceedings or of a judgment of a court is predicated upon matters dehors the record. [Meinert v. Harder (Or.) 65 Pac. l. c. 1058; City of Greensburg v. Zoller (Ind.), 60. N. E. l. c. 1008, and cases cited.] Any proceeding must be regarded as a collateral attack which is not instituted for the express purpose of annulling, correcting, or modifying the judgment. [Johnson v. Stebbins-Thompson Realty Co., 167 Mo. 325, 66 S. W. 933.]
There are two provisions in our statutes as to the taking of a census. Section 7239, Revised Statutes 1909, provides, “that for the purpose of determining the fact of whether or not any town shall be governed by the provisions of this section, such body having legislative functions therein may, under an ordinance thereof, take a census of the inhabitants of such town, and the result, of such census shall be entered upon the journals and records thereof, and such entry, or a certified copy theerof, shall be proof- of such fact, and shall be filed with the clerk of the county court of the county in which such town is situated.” A compliance with the terms of this section and the entry of the result of such census upon the journals or records of the town taking the
The principles herein announced as to collateral attack apply to proceedings under the local option act; and the validity of a local option election is not subject to collateral attack. [People v. Hamilton, 58 N. Y. Supp. l. c. 962; State ex rel. Peacock v. Village Council of Osakis (Minn.) 128 N. W. 295, 297; Gieb v. State (Tex.) 21 S. W. 190; Janks v. State (Tex.) 15 S. W. 815; Anderson v. State (Tex.) 44 S. W. 824; Commonwealth v. Jones (Ky.) 84 S. W. 305; State v. McCord, supra; State ex rel. Ryan v. Wooten, 139 Mo. App. 221, 122 S. W. 1101.] As was stated in the Ryán case, in my judgment the law has given us its mandate to uphold and maintain, and not invalidate the expressed will of the electors of Newton county in the local option election.