State ex rel. Gunn v. Cordell

117 S.W. 655, 137 Mo. App. 205, 1909 Mo. App. LEXIS 197

• Court: Missouri Court of Appeals
• Decided: March 23, 1909
• Status: Published

Opinion

GOODE, J.

— The board of aldermen of the city of West Plains ordered a special local option election to be held in said city January 31, 1907. Pursuant to an order of the court the notice of said election Avas published in the HoAvell County Gazette, a weekly newspaper of said city, in the issues of said paper January third, tenth, seventeenth, tAventy-fourth and thirty-first. The election Avas 'duly held pursuant to, the notice and resulted in a vote against the sale of intoxicating liquors in said city, and publication of the result Avas made as required by law. After Avar ds relator applied to the county court of HoAvell county for a license to keep a dramshop in the city of West Plains, and was refused; whereupon he instituted this action for the writ of mandamus to compel the county court to grant the license, and the members of said court returned as ground for their refusal of the license, that by virtue of said election under the local option laAV, intoxicating liquors could not laAvfully be sold in the city of West Plains, Relator filed a motion for judgment on the return, contending the publication of the notice for the election was insufficient and hence the election itself was void. There must be given four weeks or twenty-eight days’ notice of an election under the local option law. [State v. Tucker, 32 Mo. App. 620; Bean v. County Court, 33 Mo. App. 635; State v. Kaufman, 45 Mo. App. 659; State v. Brown, 130 Mo. App. 214; Young v. Downey, 150 Mo. 330.] Whether this Avas done is to be determined by excluding the first day of publication and including the day of the election. [State v. Tucker, supra.] Notice for tAventy-eight days or four full weeks was given in the present case, according to the method of computation laid doAvn in the decisions supra, and the case of State v. Dobbins, 116 Mo. App. 29, as far as the point in judgment is concerned, is not in conflict with this ruling. There were five publications here in as many weeks, but we have excluded the day of January third from the count. In the Tucker, Kaufman and Bean cases, the publications of notice plainly fell short of giving twenty-eight days’ notice.

The judgment is affirmed.

All concur.