State ex rel. Holladay v. Rinke

121 S.W. 159, 140 Mo. App. 645, 1909 Mo. App. LEXIS 166

• Court: Missouri Court of Appeals
• Decided: July 6, 1909
• Status: Published

Opinion

REYNOLDS, P. J.

This case was entitled, when filed, State ex rel. James W. Halladay v. A. H. Mitchell et al. As the questions involved in it necessitate reference to the case of State ex rel. Retornez v. Mitchell et al., not officially reported, but in 115 S. W. 1098, we use in the title of this the name of another of the defendants to avoid confusion between the two cases.

It is a proceeding by mandamus to compel defendant Rinke, alleged to be mayor, and the other defendants alleged to be councilmen of the putative city of Flat River, to issue to relator a license as dram-shop keeper in Flat River. An alternative writ was issued by us June 4, 1909.

The facts, in the case as disclosed by the record now before us are these: On the 3rd of February, 1908, a petition was filed with the county court of St. Francois county, praying the court to order an election in the county to determine whether or not spirituous and intoxicating liquors, including wine and beer, should be sold within the limits of the county. The petitioners set out by way of recital in tbeir petition, ‘‘that there is no city or incorporated town in said county at this time having a population of 2,500 inhabitants or more,” and that the petitioners constitute one-tenth' of the qualified voters of the county. On the 4th of February, the county court entered up an order in which it is recited that the court acting, “on an application by petition, duly signed by 867 persons, who reside in St. Francois county, Missouri, praying the court to malee an order entered of record ordering and authorizing and directing that a special election be held in St. Francois county, Mo., and submitting to the qualified voters thereof what is known as the Local Option Law . . . and to decide at such special election the fact whether or not said St. Francois county shall adopt the law known as the Local Option Law and thereby decide if spirituous and intoxicating liquors, including wine and beer, shall be sold within the limits of St. Francois county, Missouri, lying outside of the corporate limits of any city or town having 2,500 inhabitants or more for the next four years after said special election,” and it was recited that the application by petition having been taken up and all and singular the matters and issues being submitted, the court finds that the petition is signed by 867 persons, bona fide citizens and qualified voters of St. Francois county, entitled and qualified to vote for members of the Legislature in that county, and that the number of signers constitute more than one-tenth of the qualified voters of the county as shown by the poll books of the previous general election, it appearing by the poll books that 5,792 votes had been cast in the county by persons entitled to vote for members of the Legislature. “The court further finds that there is no incorporated city or town in said county having at the time the petition was filed a population of 2,500 inhabitants or more,” and that no election under the Local Option Law had been held within the preceding four years and that more than ten years have elapsed since the question of local option had been submitted and that the period of forty days from the day of filing of the petition will expire more than sixty days before any general election is to be held under the laws of the State or any special election held by virtue of any order of the court, which matters being considered, “said special election is granted on said petition and it is ordered and adjudged that a special election be held in St. Francois county, Missouri, on Saturday, the 7th day of March, 1908, at the usual voting precincts in said county, . . . and vote on the proposition and the question submitted and to determine whether or not spirituous and intoxicating liquors, including wine and beer shall be sold within the limits of said county.” It was also ordered that the clerk give notice by publication for four consecutive weeks; that he furnish ballots for use at the election, and the order further provided for the appointment of judges for the several election precincts throughout the county to act at that election. On February 8th the county court proceeded to the appointment of the judges of the election to serve at this special election and the clerk was ordered to issue certificates of appointment and the sheriff ordered to deliver them to the parties appointed. Judges were appointed for the two election precincts into which the city of Farmington is divided as well as for all the other precincts in the county. Publication of notice of the election was also made, as appears by evidence, for four weeks, the first publication being made February 6th, the last on March 6th. The notice published set out the order of the court as above including the statement that the court found that there was no incorporated town or city within the limits of the county, having a population of 2,500 or more, and that the election was on the proposition whether or not St. Francois county should adopt the Local Option Law, “and thereby decide if spirituous and intoxicating liquors . . . shall be sold within the limits of St. Francois county, Missouri, for the period of four years.” The published notice concludes: “Now, therefore, in accordance with the above finding, it is ordered by the clerk of the county court of St. Francois county, Missouri, that the qualified voters of St. Francois county, Missouri, be notified and they are hereby notified that a special election will be held at the usual voting precmcts in said county, on Saturday, March 7, 1908, to determine whether or not spirituous and intoxicating liquors, including wine and beer, shall be sold within the limits of said county, outside the limits of aniy city or town having 2,500 inhabitants or more ” The italics are ours.

On March 10th, the matter of the election coming before the county court, this entry appears on the records of the court: “The matter of the special election coming on to be heard and determined by the court, the court finds that heretofore on the 4th day of February, 1908, an order was made of record upon the presentation of a petition signed by more than one-tenth of the qualified voters of St. Francois county, Missouri, who reside outside the limits of any city or town having at the time of such petition and order a population of 2,500 or more inhabitants and who are qualified to vote for members of the Legislature, directing that a special election be held in said St. Francois county . . . March 7, 1908, to determine whether or not intoxicating liquors . . . shall be sold within the limits of said county lying outside such limits of such town or city having 2,500 or more inhabitants, as aforesaid.” Italics ours. The court finds that the notice of the election was duly published, election held and conducted in accordance with the law; that the vote cast at the election had been duly canvassed and that the result of the special election was that there were cast against the sale of intoxicating liquors 3,240 votes and for the sale of intoxicating liquors 2,768 votes, and that the majority of votes at the election was 477 against the sale of intoxicating liquors and the total number of votes cast at the special election was 6,003, and the clerk of the court was ordered to publish the result of the election. It appears by this return that the election was held in every voting precinct in the county, including those within the city of Farmington. There were 467 votes cast against and 351 cast in favor of the adoption of the Local Option Law in the voting precincts of Farmington, being a majority in that city against adoption of 116, and if that 116 is taken off of the 477 majority for its adoption, it appears that the proposition Avas carried outside of Farmington by a majority of 361 votes. The proposition, it thus appears, Avas carried in the county outside of Farmington by a decided majority. It further appears by the record before us that among the petitioners petitioning for the submission of the proposition, a large number were citizens of Farmington. That number has not been counted up for us by counsel, but roughly stated, there appear to be about 194 out of the 867 persons petitioning who, if the vote Avas to exclude Farmington, Avere not entitled to be counted in as part of the ten per cent of the qualified petitioning voters of the county. Taking this 194 from the 867, who had petitioned for submission of the question gives 673 as outside of Farmington petitioning, and as the total vote in the preceding election in the county was 5,792, and the total vote cast at this special election in Farming-ton was 818, deducting that from the 5792 leaves 4974 voters outside of Farmington, and the 673 petitioners outside of that toAvn are considerably over the ten per cent required. There can be no question whatever in the case but that the number of petitioners requisite to institute the election had signed petitions for the election, excluding the voters of Farmington entirely from the calculation, so that if this had been a proposition submitted in laAvful manner to the voters of the county, outside of Farmington, the requisite number of voters bad petitioned for it and it bad been carried by a majority vote by the people outside of the city. We mention these matters now and call attention to these figures, not claiming them to be accurate but substantially so, in order that it may not be said that we have overlooked this phase of the case in arriving at the conclusion which we shall hereafter state.

Eesuming the history of the transaction, it appears by the record in the case that on the 3rd day of February, 1908, the board of aldermen of the city of Farm-ington passed an ordinance requiring the taking of a census of the inhabitants of the city, providing for the appointment of enumerators and requiring them to complete and make return of the census within four 'days, proceeding under the provisions of section 6300, Revised Statutes 1899, and it appears that on the 7th of February, the enumerators completed their work and made a return of the enumeration on the 7th of February, 1908, to the city clerk of Farmington, who duly filed it and reported it to the board, by whom it was that day approved. By this enumeration and return, it appeared that the city of Farmington at that date had a population of 2771 people. A duly certified copy of the return of the enumerators and of the enumeration made was filed with the clerk of the county court of the county on the 10th of February. Farm-ington is the county seat of St. Francois county and the county court held its sessions in that city.

(after stating the facts).— At the outset of the case we are met by the suggestion from a member of this bar, acting as amious curiae, that the proceeding is not in good faith; that relator is a well known advocate of local option; that if he is granted a license he would not use it; that the lease of the building occupied by him on lot 48, block 1, in Flat River, in terms forbids tbe use of tbe building or premises for “a dramsbop, beer garden or bouse for tbe exposure or sale of any kind of liquors or drinks, or for any store or any like purpose,” and that by decree of tbe circuit court of St. Francois county, of date June 16, 1909, now however under appeal, it was adjudged that tbe order of tbe county court purporting to incorporate tbe city of Flat River, was held to be null, void and of no effect, and tbe territory embraced witbin tbe limits of said putative city beld to be unlawfully incorporated.

In view of tbe importance to tbe people of St. Francois county of a definite settlement of tbe question sought to be submitted by this case and attempted to be raised in other cases coming from that county, which we have been compelled to dismiss for various technical defects, and that we may, if possible, put an end to a somewhat acrimonious and vexatious dispute, we have concluded that tbe ends of justice and tbe settlement of tbe minds of tbe people of St. Francois county on this subject are of more importance than the mere form in which tbe matter is presented to us.

Tbe question involved in this, as in all these various cases is, whether tbe Local Option Law was legally adopted by St. Francois county, by virtue of an election beld in that county on March 7, 1908. This court held, in tbe case of State ex rel. Retornez v. Mitchell, supra, tbe decision being filed December 1, 1908, that tbe Local Option Law was not in force and effect in tbe city of Farmington. It was stated in that decision that while tbe election was invalid so far as the city of Farmington was concerned, there was some doubt in tbe mind of the court as to whether it was valid and tbe Local Option Law in force in tbe rest of tbe county. It is under tbe doubt arising from this suggestion that much contention has arisen. Tbe question presented to tbe court in tbe Retornez Case was solely as to whether tbe Local Option Law was operative in the city of Farmington. While it was argued that it was operative in the county outside of that city, the record was not in such shape that this court could pass on that. It seems that the circuit court and the county court have been proceeding on the theory that it was not in force in the county, the one so holding in criminal prosecutions and the other in the issue of dramshop licenses. In the case at bar it is claimed by the respondents that it is in force throughout the county, the city of Farmington excepted.

Section 3027, Revised Statutes 1899, provides that “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 2,500 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 determine whether or not spirituous and intoxicating liquors . . . shall be sold within the limits of such county lying outside of such corporate limits of such city or town.”

While section 3027 reads, “having a population of 2,500 inhabitants or more who are qualified to vote for members of the Legislature,” it has never been understood that this meant that the incorporated city or town was to have 2,500 qualified voters within its limits; so far as we know the test being applied to inhabitants in the sense of population and not in the sense of qualified voters. We would be doing violence to the general opinion of the State to construe the 2,500 here referred to as meaning 2,500 voters, and we decline to do so. Section 3028 makes it clear that the number of inhabitants is meant. In the present instance the county court recites as a fact that there was at the time no incorporated city or town within the limits of the county at the time having a population of 2,500 inhabitants or more. In this collateral attack by mandamus, the existence of this jurisdictional fact is not open to inquiry. When the county court found, as recited in its order, that there was no incorporated city or town within its limits with that population at the time -it entered up its order in this case, that finding is conclusive on us in this case. [State v. Searcy, 39 Mo. App. 393; State v. Dugan, 110 Mo. 138; State v. McCord, 207 Mo. 519.] But the regularity of the proceeding is open to inquiry. Whether the essential! steps required by the statute have been taken can be inquired into. While the county courts have no jurisdiction to order an election under the Local Option Law to be held by the voters of the whole county, when that county includes within its boundaries an incorporated city or town having at the time of such petitioning a population of 2,500 inhabitants or more, the determination of the fact of whether there is such town or city is primarily within the jurisdiction of the county court, and its determination thereof not open to collateral attack. The court having so found, it was the duty of the clerk to give notice accordingly of an election by all the voters of the county, to vote on the proposition of putting the law in operation throughout the county. The notice and order of election published and under which the voters were formally notified of what they were to vote on did not do this.

The notice of the election as published by the clerk of the county court recites, “that the qualified voters of St. Francois county, Missouri, be notified and they are hereby notified that a special election will be held at the usual voting precincts in the county, on Saturday, March 7, 1908, to determine whether or not spirituous and intoxicating liquors, including wine and beer, shall be sold within the limits of said county, outside of the limits of any city or town having 2,500 inhabitants or more.” This was a departure from the order of the court, was not the election ordered, and was an illegal notice. No such limitation, excluding any totvn or city, was contained in the order. This was a marked and substantial and fatal variance from the order and is not supported by the order. If there was such a town or city, then the electors, of that town or city had no right to participate in the election, nor had the electors outside of any such town or city any right to vote the Local Option Law into operation in such town or city. The attempt of the clerk to exclude any incorporated town or city, with 2,500 inhabitants was without legal effect. Furthermore, when the county court entered up its order declaring the result <of the election, which it did on March 10th, it seems to have overlooked the fact that it had determined that there was no such town in the county, for it repeated these words, excluding any such town or city which might be in the county, as having been in the order of February 4th, when in fact they were not present in that order.

The points against the validity of the notice of the election and against the form in which the county court declared the result, were not presented in the Retornaz Case in the phase they are here and neither was our attention called to section 5895a, Sess. Acts 1905, p. 80 (8 Mo. Ann. St., p. 2990), concerning the mode of taking a census in a city of the fourth class. If the census taken by the city of Farmington was not binding on the county court because the method prescribed in that section was not followed in taking it, and if the opinion in the Retornaz Case erred in losing sight of that section, or for any other reason (which we do not decide); the right result was nevertheless réached because of the invalid notice of election.

A consideration of section 5895a in connection with section 6800 leads us to the conclusion that in the matter of taking a census to ascertain the population of a city of the fourth class, section 6300 governs in all cases except where a census is to be taken.’ for the purpose of fixing the 'amount of a tax levy- for city purposes. We are led to this conclusion by following the well-settled rules governing the interpretation of statutes, that a statute is held to be repealed only by an express provision of a subsequent law or by necessary implication; that a later statute will not repeal a former one by implication when the ¿two laws are not irreconcilably inconsistent and can stand together; that if by fair interpretation all the sections of a statute can stand together, there is no repeal by implica.tion, and that where there are two statutes upon the same subject, they should be so construed as that both may stand if possible, the later repealing the earlier, pro tanto as to inconsistent provisions. It is a further rule of construction that if two statutes can be read together without contradiction or repugnancy or absurdity or unreasonableness, they should be read together, and both will have effect. [Railroad v. Cass County et al., 53 Mo. 17; State ex rel. v. Dolan, 93 Mo. 467; State ex rel. v. Walbridge, 119 Mo. 383; Kansas City v. Smart, 128 Mo. 272; State ex rel. v. Stratton, 136 Mo. 423.] The act of 1905 interpolating section 5895a into article 5, chapter 91, Revised Statutes 1899, in our opinion, was intended to apply to the taking of a census solely to determine the tax levy rate. Section 6300, on the contrary, is general in its object, being taken to ascertain population “for any other purpose that the law may require or have any other act or thing to be done making the population the basis thereof,” and it expressly enacts that “this section shall apply to cities of the fourth class, and towns and villages, and cities and towns under special charters.” When a census is to be taken in a city of the fourth class, for any purpose other than ascertainment of population for taxation, it must be taken under section 6300, Revised Statutes 1899.

Our conclusion on the whole matter is, that the local option election of March 7, 1908, was not a lawful election. It was held on a petition praying for submission to vote of all the voters of the county; its ostensible object was to put the law in force over all the county, and the order recited there was no city or incorporated town of 2,500 inhabitants in the county. The notice of election distinctly negatived or left open as uncertain, to be determined, in effect by the votes, whether there was any such town or city in the county. In this respect the notice of election did not follow the order. For this reason we hold the election of March 7, 1908, void. We do this with less hesitation, because the opportunity is still open to the people of that county to test the sense ,of the voters on the matter at an unquestionably legal election. It is better for all concerned that this be done, ithan to attempt to hold on to an election, the legality of which would always be open to question in the minds of many whichever way we decided it. No matter how great the majority may be, if cast at an unlawful election, it avails nothing. It is very evident from the record in this case, that the people of St. Francois county were in favor of local option, and the consequent prohibition of the sale of liquor. It is within the power of the majority of the voters of St. Francois county to put into force local option by entirely lawful means and measures. The election held in March, Í908, being-void, as we hold, there has been no election on that matter within the legal period, so that, if it is still the will of the people of that county, outside, of the city of Farmington, or any other incorporated town or city with the prescribed population, to put the question to the test, the way is open to them. The relator is entitled to this city license. What effect that will have on his lease is for his own determination. Whether he shall then go forward and apply for and obtain a county license, is for him — he being presumed to know that a city license alone, without one from the county court, will be no protection to him in case of prosecution for selling without a dramshop license. The alternative writ heretofore issued is made absolute. Writ of mandamus awarded.

All concur.