State v. Pemberton , 235 Mo. App. 1128 ( 1941 )

ON MOTION FOR REHEARING. The respondent herein has filed motion for rehearing and asserts two grounds. The first ground is as follows:

"The decision of this court in this case in which it says (page 11 of the opinion):

"``We have carefully examined the Transcript and Bill of Exceptions certified to and filed herein, and no record of the first proceeding where the court made its order calling the election is shown,'

"And on the last page where the court says:

"`` . . . so far as the record before us shows, the county court never acquired jurisdiction to act in the matter, . . .,'

"overlooks the fact that such an order calling the electionbased upon the petitions filed, was made, and the county court ofBoone County took jurisdiction and did order the election held.That order appears in the County Court Record, Book 21 at page51, and that the order itself appears on page 9 of the Bill ofExceptions filed in this court with this case, and is in wordsand figures as follows, to-wit:

"``In the matter of the Dog Tax Election: A petition of 100 or more qualified voters of Boone County, Mo., having this the 30th day September, 1938, been presented to the County Court of said County, requesting that an election be held in said county for the purpose of voting for or against the collection of a tax on all dogs in said county, under the provisions of Sec. 12881, R.S. Mo. 1929; it is the order of the Court that such election be called and held on November 8, 1938, the same being the date for holding the general election; and that the clerk hereof have said proposition printed on all ballots to be voted at said general election, as provided in said Section 12881.'

The Court's opinion in this case is quite obviously written onthe theory that no such order was made and that the county courtdid not take jurisdiction and call the election. The court inoverlooking this order missed the heart of the case.

This court in its opinion goes off on the proposition that there is no showing in the record that the petition was signed by one hundred householders, and the court makes the statement (page 11 of the opinion):" (Italics theirs.)

Our review in this case is made from a somewhat voluminous typewritten record under two separate covers attached together. The first of these documents is entitled "Transcript in Appeal" with no index. The second document is entitled "Bill of Exceptions" with an index in which there are listed only two exhibits: "A, Aff. of Publication" and "Exhibit B, Petitions."

After having resolved the question of sufficiency of pleading in favor of the State and having concluded that if a valid dog law was in force, there was evidence to support the charge, we directed our review to the question of the law and with such issue in mind, we searched the record for documentary evidence upon which rested the solution as to whether or not the local option dog law had been duly adopted in the county.

In addition to the documents indexed Exhibits "A" and "B," we found "Notice to Dog Owners" and a blank dog tax receipt. However, there nowhere appears in evidence the documentary exhibit of first proceeding by the court.

In the motion for rehearing, we are informed where the proceedings, supra, appear, as follows:

"MR. CARTER: Q. Mr. Morris, I will ask you to turn to the County Court Record Book 21, page 51, with reference to ``In the Matter of the Dog Tax Election,' and read the order of Court that you have there."

Thereafter the witness is shown as "Reading from the book and page designated." We might make excuses for overlooking this testimony, by reason of the informal manner of not offering the record itself, but it is impossible to give a sound reason for so doing. However, by now giving due consideration of the entry as it appears set forth, supra, we are enabled to base our conclusion on fact rather than inference.

The petitions in evidence and set forth verbatim in our opinion failed to supply the jurisdictional element of "householders." We are more confirmed in our conclusion that there was never a finding by the court as to such jurisdictional fact. The language set forth in respondent's motion, supra, supports the conclusion that the court's action was based upon a consideration of voters rather than householders. It follows that "so far as the record before us shows, the county court never acquired jurisdiction to act in the matter."

Respondent's second asserted ground is as follows:

"The decision of this court in this case in holding, (lastpage of opinion):

"`` . . . there is nothing in the record from which any court can base a finding of the required fact that any valid Dog Tax law exists in Boone County, Missouri. Without such a finding, no conviction of defendant can be possible.'

"is in conflict with the controlling decisions of the SupremeCourt of Missouri hereinafter set forth which hold that the Statehas made a prima facie showing that the local option law has beenadopted and is in force when it introduces, first, the record ofthe county court showing the result of the election as spreadupon the record of the county court in compliance with the law,and second, proof that the requisite publication was made." (Italics theirs.)

Respondent cites State v. Searcy, 111 Mo. 236, 20 S.W. 186. The above case was certified to the Supreme Court from an opinion by the St. Louis Court of Appeals. The Supreme Court upheld the opinion of the St. Louis Court of Appeals, 46 Mo. App. 421, and refrained from comment on issues for the reason that "The opinions of the court of appeals are so exhaustive and conclusive that we deem it a work of supererogation to add anything to them."

The case of State v. Searcy so clearly states the law that applies to the issue as raised by respondent's second asserted ground that we need but to review as to the point from consideration of the above case alone.

The opinion in the Searcy case holds that the record made by the county court of the result of the election is prima facie evidence of the fact that a valid election has been had. The opinion further holds publication is necessary to put the law in effect. However, same must be proved. Following the above, the language of the opinion, l.c. 427, is as follows:

"We further hold that, after the State has thus shown, primafacie, that the statute had been adopted and put in force prior to the date of the offense, it is open to the accused to show the contrary by proving that any of the essential steps named by the statute have not been taken, except as to those matters wherethe county court is required judicially to determine theexistence of a fact, in which its record is conclusive, — as forinstance in respect of the question, whether the petition for theelection has been signed by the requisite number of qualifiedvoters." (Italics ours.)

We hold that the county court is required to judicially determine the existence of the fact that not less than 100 householders had petitioned for an election in order to make its record conclusive. We hold that before the record of result of election is conclusive, it must be shown that the action of the court was based upon a petition duly signed by the prerequisite number of the qualified class to petition.

We might add here that regardless of where the duty lies to show jurisdictional facts, the record before us clearly shows upon its face that action was taken on showing of petitioning voters and not householders. It is upon such showing of record that we base our conclusions.

The court having no jurisdiction to act when it did act, its judgment was void. It follows that evidence produced in the trial to the effect that signers were householders cannot bring life into a void judgment. The most powerful instrument of the law to alter or amend a judgment in a nunc pro tunc order. However, such an instrument is powerless to give life to a void judgment.

Motion for rehearing overruled. All concur.