Bean v. County Court , 33 Mo. App. 635 ( 1889 )

Gill, J.

I. The main feature of this controversy, to-wit, the sufficiency or insufficiency of the published notice, whether or not the publication thereof .in a newspaper beginning with December 22,1887, and ending January 12, 1888, the election being held January 13, 1888, twenty-two days after the first publication, is settled by State ex rel. v. Tucker, 32 Mo. App. 620. We hold now, as was held there, that this notice does not fill the requirements of section 3 of the law known as the “ local option” law. Acts of 1887, p. 181. Some other points have, however, been presented in this case which it may be proper to notice in order to save future litigation.

II. We do not believe that the board of aldermen of the city of Lamar was authorized under the law to hold this election at the one place — in one' ward — when in fact there were in said city four election districts and wards. Section 4936, Revised Statutes, authorizes the board of aldermen of a city of the fourth class (and such is Lamar) by ordinance to divide such city into not less than two wards. Under this power Lamar had been divided into four wards. It is clear that as a city of the fourth class it could not be thrown into one ward. The board of aldermen is interdicted from so doing by the organic law of its municipal existence.

Section 2 of the “local option” law provides this “ election to be held in such city, to be voted on by the .qualified voters thereof and no others.” As to who are qualified voters entitled to vote at such election resort must be had to the general laws of the state. This is prescribed by section 5492, Revised Statutes of Missouri, wherein it is provided that “every male citizen * * * who is over the age of twenty-one years, possessing the following qualifications, shall be entitled to vote at all elections by the people,” and then fixing the necessary residence in the state, county and city, the statute further stipulates,- “ and each voter shall vote only in the township in which he resides, or if in a town or city, then in the election district therein in which he resides.” So it may be well said that a man may be a qualified voter in one ward, or in one election district, and an illegal voter in some other ward or election district. The spirit of this general state law was followed, too, by the law-making body of Lamar when it enacted the following section of the ordinance concerning elections : Section sixteen provides for the qualification and residence of voters, as follows : “ Any person shall be a qualified voter in the city of Lamar, who shall be possessed of the qualifications required by the constitution of the state of Missouri, and who shall have resided in this city sixty days immediately preceding the election, and shall be a bona-fide resident of the ward in which he offers to votef

By the provisions of this general ordinance the intent is plain to fix upon the different wards the character of election districts, if not already so fixed by the common intent of the statutes. What must be said, then, of the consistency of the action of the Lamar board of aldermen in providing for the holding of this local option election at one place — in one ward — for the entire city, as compared with the provisions of law above referred to ? Who were qualified voters when presenting themselves at this frame building located in the third ward ? Those 'gentlemen whose bona-fide residence may have been in the first, second or fourth election districts were not qualified to vote, because the general law provides “that each voter shall vote only in the election district in which he resides.” Was it ever, then, the intention of the law to permit one ward or one election district to cast the ballot and determine a governmental status for the four districts? We find no adjudicated case covering this exact question; but we do think, in the light of reason and the general rules governing such questions, that this election, for that reason also, must be declared void. McCrary on Elections, sec. 114, and authorities.

III. That mandamus, too, is the proper remedy, we think is the settled law of this state. State ex rel. v. Nodaway Co. Court, 80 Mo. 601-609 ; Sheridan v. Fleming, 93 Mo. 322-325.

In answer to respondent’s claim that mandamus is not permitted because, as counsel assert, there is a legal remedy by an appeal from the order of the county court refusing license to the relator, we say here, as said by the supreme court in case last cited, that the relator had no such right. “ Appeals are allowed only where, in the nature of the case, the circuit court can try the matter anew, and give such judgment as the county court should have given.” The circuit court of Barton county cannot issue dram-shop licenses, and therefore no appeal will lie to sucli court from an order thereon by the county court.

The result, then, of our holding is, that the circuit court committed error in refusing the peremptory writ of mandamus, and we reverse and remand the cause with instructions to the court below to issue the writ as prayed.

All concur.