Hayward v. Guilford

Smith, P. J. Statement. This is an action of replevin to recover the possession of eighteen head of cattle, which defendant found running at large outside of the plaintiff’s inelosure, in violation of article 2, chapter 5, Revised Statutes, and which he accordingly restrained. The defendant had judgment in the court u j _ below and the plaintiff appealed. Whether this judgment shall stand or fall depends upon whether, first, there was notice given by the county court of the submission to the qualified voters of the county of the question of enforcing in said county the provisions of said statute; and, second, whether the clerk of said county court gave notice of the result of said election. In the one case, the statute requires (Revised Statutes, 361) that the county court shall cause notice to be given that such vote will be taken by publishing notice of the same in a newspaper published in such county, for three weeks consecutively, etc., before the day of the election, and by posting up printed notices thereof at three of the most public places in each township in the county, at least twenty days before the election,. And when a majority of the legal voters vote for the adoption of the provisions of said statute, the duty is devolved on the clerk by section 363, Revised Statutes, to give notice of the result of such election by publication in some newspaper published in the county and by causing notice thereof to be posted in at least three public places in each township in the county. The publication of the notice of both the election and the result thereof was made in a newspaper according to the said statutory requirements, but it is contended that there was no compliance with the requirement in respect to the posting up of the notices in the several townships. The clerk of the county court was called as a witness and testified that he prepared the notices required by both of the sections of [4] the statute and caused the same to be printed on cloth and sent the required number to the constable of each township, requesting him to put up the same in his township. The several constables later on presented their account to the county clerk for their services in putting up the notices. There was no formal return made by either the clerk or the constables as to the posting of the notices. It appears from the United States’ census reports, of which we may take notice, that the voting population of said county, at the time of said election, was five thousand, five hundred and forty-three. It further appears there was cast at said election three thousand, eight hundred and thirty-five votes, or two thousand, two hundred and one for and one thousand, five hundred and thirty-four against the adoption of said statutory provisions. It is thus seen that the validity of the election can not be questioned on the ground that there was no notice at all, as in McPike v. Harris, 51 Mo. 63, and State v. Railroad, 75 Mo. 526. But here the notices were given in the newspapers, as required by the statute; but whether the notices were posted up in the townships is not so satisfactorily shown. Annimals: election to restrain: notice jury question. Prior to 1895 (Acts 1895, p. 40) there was no statute requiring the officers posting up the notices to make return thereof. Whether the notices were posted, up in the manner required by statute was a fact left by it to be proved like any other fact. So that the decisive question is whether the evidence already referred to was sufficient to carry the case to the jury. State ex rel. v. Westport, 116 Mo. 582, was where an ordinance of the city of Westport providing for a submission to the qualified voters of the city of the proposition to extend the boundaries of said city required that notice [5] of the election should be given in a newspaper and also “by posting up in at least twenty places in the city of Westport printed copies of the ordinance, at least twenty days before the day of holding said election.” The ordinance made it the duty of the city clerk “to attend to the giving of■ the notices.” The only proof of the posting up of the notices was the certificate of the city marshal to the effect that he had “posted extension ordinance notices as required.” The contention of the relator in the case was- that the election under the ordinance was void because of want of proof of notice of the election. Judge Gantt, speaking for an unanimous division of the court, answered this by saying: “This record is obnoxious to the objection that it stated a mere conclusion instead of facts as to how and where the notices were posted, but when taken in connection with the fact that there were cast at this election, as shown by the evidence, three hundred and twenty-seven votes for mayor, we conclude that the evidence is sufficient to establish the fact that notice was duly given.” Now, taking into consideration the present case, the undisputed testimony of the clerk to the effect that, in due time, he had the notices printed and had sent the required number to the several constables of the townships, with directions to post'up the same, and that the constables presented their accounts for the performance of the service requested of them by the clerk, in connection with the fact that so great a per cent of the voting population of said county voted at said election, we must think, in view of the rulings in the precedent just referred to, that this evidence was sufficient to establish the fact that notice was duly given. If the notices were duly given, as we think the evidence sufficiently sho'ws, then every [6] step essential to the adoption of the ‘‘statute” and to the putting it in operation was taken. As no objection was interposed in the court below to the introduction .of any evidence, none will be considered here. Burden of proof: instruction: harmless error. The court, as it was requested, might have very properly instructed the jury as to the burden of proof, yet, since the defendant at the trial took upon himself the burden of showing that every essential step had been taken for the adoption of the statute and the putting the same in force, no harm is perceived to have resulted from the action of the court in this regard. We are unable to discover that any error has been committed against the plaintiff materially affecting the merits and, therefore, we must affirm the judgment. All concur.