207 Mo. 519 | Mo. | 1907
— This case was certified to this court from the St. Louis Court of Appeals, upon a division of opinion in that court, a majority of the members thereof concurring in an opinion reversing the judgment of the circuit court, the other member dissenting. There is no controversy as to the facts, which are stated by Judge Nortoni substantially as follows:
The defendant was convicted on a charge of selling intoxicating liquors in violation of the Local Option Law, and, after unsuccessful motions for new trial and in arrest of judgment, appealed to the St. Louis Court of Appeals. The main question raised was as to the adoption of the Local Option Law in Christian county, the defendant maintaining that the Local Option Law is not in force in said county, in support of which contention he points to what he terms irregularities in the proceedings antecedent and leading up to the publication of notice declaring the same to have been adopted.
It appears that on the 4th day of May, 1905, a petition was presented to the county court of Christian county, praying that the proposition of adopting the. Local Option Law be submitted to the voters of that county. The county court found such petition to have
The defendant contends that the judgment and order of the county court, of date May 4th, by which it submitted the proposition to adopt the law, is void for the reason that it is not predicated upon the petition of one-tenth of the qualified voters of such county, as required by .section 3027, Revised Statutes 1899, which provides:
“Upon application by petition, signed by one-tenth of the qualified voters of any county who shall reside outside of the corporate limits of any city or town having, at the time of such petition, a population of twenty-five hundred inhabitants or more, who are qualified to vote for members of the Legislature, in any county in this State, the county court of such county shall order an election to be held in such county at the usual voting precincts for holding any general election for State officers, to take place within forty days after the reception of such petition, to determine whether or not spirituous and intoxicating liquors, including wine and beer, shall be sold within the limits of such county lying outside of such corporate limits of such-city or town.”
The petition to the county court for the submission of the question of local option to the qualified voters of the county is in substantial compliance with the requirements of the statute. It recites: “We, the under
Upon the presentation of this petition, as stated before, the county court found that it was signed by “one-tenth of the qualified voters and taxpayers of Christian county;” but the order of the court further recited that it appeared to the court “from the sworn testimony produced in open court by Rev. W. H. Son, J. A. Wasson and S. D. Wells and William McVeigh that the required number of petitioners have signed and presented said petition for their consideration,” etc,;
• The question, then, is, were the petitioners qualified voters of the county? In determining this question we must not ignore the petition, nor any part of the record, but consider all together. The petition is as much a part of the record as the order submitting the question of local option to the voters, and is an indispensable prerequisite to the making of the order. It says, “We, the undersigned legal voters,” etc:, and the order of submission recites that the petition prayed the court to make an order submitting to the qualified voters of said county an election to determine whether or not spirituous liquors should be sold, and, further, that the requisite number of petitioners had signed and presented said petition.
It will be observed that the only petition presented to the court shows upon its face that ■ it was signed by legal voters, and there is no showing to the contrary. It was only upon a petition signed by one-tenth of the legal voters of the county that the court was authorized to submit the question of local option
When the petition was presented to the county court by the requisite number of legal voters of the county, asking said court to submit to the voters of said county the proposition to vote on the question whether or not spirituous and intoxicating liquors should he sold in the county, it acquired jurisdiction of the subject-matter of controversy and of the peti
As the petition presented to the county court on which the order for the local option election was based petitioned the court “to submit to the voters of said county the proposition to vote on the question whether dramshop license shall not be granted in said county, commonly called local option, according to section 3027, Revised Statutes 1899', of the State of Missouri,” while said section provides that the county court, after the reception of the petition, shall order an election to be held “to determine whether or not spirituous and intoxicating liquors, including win© and beer, shall be sold,” it is claimed by defendant that the petition in question was insufficient to authorize the court to take jurisdiction of the matter, and make the order for election. "While the petition is not couched in the exact language of the statute, we think it a substantial compliance therewith, and when considered in connection with the words “commonly called local option, according to section 3027, Revised Statutes 1899, of the State' of Missouri,” which words form part of the petition, it seems well enough. Certainly, no one signing the petition or voting at the election could have been misled by its informality. As was said by Smith, P. J., speaking for the court, in State ex rel. Church v. Weeks, 38 Mo. App. l. c. 573, “If it appeared by the petition of the requisite number of the qualified voters that such was their will, that fact would authorize the exercise of the jurisdiction, no difference what the form of the petition may be. . . . When proceedings under the Local Option statute are drawn in question as for sufficiency, we. are not disposed to invoke the application of the strict rules of construction by which are usually tested proceedings for the condemnation of private
Our conclusion is that the petition was a sufficient compliance with the requirements of the statute to justify the making of the order for the election. ■
For these considerations the judgment of the cir-court is affirmed.