State ex rel. Edwards v. Ellison

BLAIR, J. Relator was prosecuted and convicted in the. Chariton Cireuit Court for violation of the Local Option Law. He appealed to the Kansas City Court of Appeals, which affirmed the judgment (State v. Edwards, 192 Mo. App. 413), whereupon relator sued out-this writ of certiorari, which brings here the record of that court. The question presented is whether the decision and opinion of the Court of Appeals conflict with decisions of this court. It appears from the opinion that the record on appeal disclosed that on the trial of relator in the Chariton Circuit Court the State offered record evidence showing an election had been held in Chariton County .on June 7,1913, and this record on its face ‘ ‘ and considered by itself . shows that a valid election was held in said county on June 7, 1913, at which the county declared for prohibition, and that the same was duly put in force by proper notice.” The opinion also states defendant “offered in evidence a record of the county court pertaining to an alleged local option election held on March 18,1912, resulting in the defeat of prohibition by a majority of 99.” The court then states that appellant (relator here) contended the election of June 7, 1913, was a nullity because “held within four years after the first election, in violation of Section 7244, Revised Statutes 1909;” that with respect “to the first — 127 — election defendant offered nothing except the county court record; and made no attempt to show that the validity of said first election, as established by said first record, had remained unimpeached down to the time of the ordering of the second.” This sufficiently epitomizes the facts forming the basis, of the decision of the Court of Appeals. Upon these facts that court held, seriatim: (1) that the acts of the county court in entertaining a petition for a local option election, in determining the sufficiency of the petition and the qualifications of the petitioners, and in calling a local option election, are judicial in their nature, and the record of the county court made therein partakes of the nature of a judgment; (2) that the orders or judgment so made are not open to collateral attack; (3) that jurisdiction of the county court over the subject-matter of local option elections is conferred by Section 7238, Revised Statutes 1909, and “the presentation of a petition properly signed calls the court’s jurisdiction in the particular case into action or exercise”; (4) that if a valid local option election had been held within four years prior to the filing of the petition for the election on June 7,1913, it was the county court’s duty, under Section 7244, Revised Statutes 1909, to decline to call the election, but the court’s jurisdiction over the subject-matter was not destroyed; that “its power to call the election was merely dependent upon the fact whether a valid election had been held within four years;” that “Section 7244 means a valid election ; for a void election is no election and cannot prevent a subsequent one; hence the act of the county court in calling the election of June, 1913, was not void for want of jurisdiction but only voidable, in case the former election was valid.” The court then held that the distinction between jurisdiction of the subject-matter and the exercise of jurisdiction in a particular proceeding is “the difference. between a wrongful execution of power to hear and determine . . . and a lack of power to hear the matter at all.” It then held that “the act of the county court in calling the' election of June, 1913, was an exercise of the jurisdiction it had over the subject-matter of local option elections,” and was not subject to collateral attack. — 128 — It concluded that “the existence of the first judgment of the county court, which on its face establishes an election held in March, 1912, does not change the situation. The presumption is that the county court heard and acted upon the petition in entire accordance with the law and made the second order in obedience thereto and in accordance with its duty, and that since the first election something must have happened which allowed the court to grant the second petition without violating Section 7244. For while the rule is that there is no presumption in favor of the jurisdiction of courts of special and limited jurisdiction, thát rule applies only to their jurisdiction over the subject-matter.” The court further concluded (1) that the election of June, 1913, was only voidable and not open to the attack made; and (2) that the remedy by contest was exclusive. If either of these conclusions is correct, the judgment of affirmance was correct. Local Option. Election: Jurisdiction. I. Section 7238, Revised Statutes 1909, requires the county court of any county upon the reception of a petition signed by ten per cent of the qualified voters living outside of cities of 2,500 inhabitants to order an election to determine whether intoxicants may be sold thereafter in the territory affected. Restrictions as to the time when such an election may be held are prescribed. Section 7244, which almost exactly in its present form constituted a part of the original Local Option Act (Laws 1887, p. 182, sec. 7), reads as follows: “Whenever the election in this article provided for has been held, and decided either for or against the sale of intoxicating liquors, then the question shall not be again submitted within four years next thereafter in the same county or city, as the case may be, and then only on a new petition and in every respect conforming to the provisions of this article.” Relator contends that in holding that though the record of the county court showed an election, valid' on the face of that record, had been held in 1912, yet that court could call another election within four years and — 129 — that it would be presumed to have acted within its jurisdiction in doing so, the Court of Appeals brought its decision into conflict with decisions of this court. It is the law of this State that “no election can be held unless provided for by law” (State ex rel. v. Jenkins, 43 Mo. l. c. 265), and it is also the law, announced by the St. Louis Court of Appeals (In re Wooldridge, 30 Mo. App. 1. c. 618), and subsequently approved by this court (Ex parte Lucas, 160 Mo. l. c. 280), that a local option election held in a city of oyer twenty-five hundred inhabitants within forty days of a municipal election is absolutely void and “has no greater force than no election at all.” In such case this court has declared that an election not held within the proper time was void “because the courts were acting outside and beyond their respective jurisdictions, and consequently their orders were null and void. ’ ’ The Wooldridge case is one of those referred to. This court added (State ex rel. v. Patterson, 207 Mo. l. c. 147): “This is true for the reason that a court of limited jurisdiction, and inferior courts not proceeding according to the course of the common law, are confined strictly to the authority given; and the records of such courts must show the existence of all facts necessary to give jurisdiction.” In this case the record of the county court, according to the Court of Appeals, discloses a “judgment . which on its face establishes an election held in March, 1912.” In our opinion, this appearing, the record discloses lack of jursidiction to call the election in 1913. Let it be conceded, as the opinion of the Court of Appeals states, that “the rule that there is no presumption in favor of the jurisdiction, .... applies only to their jurisdiction over the subject-matter.” Nevertheless, when the court said that that “jurisdiction over the subject-matter,” in every instance, is conferred upon the county court to call an election under the Local Option Law by the filing of a petition sufficient under Section 7238, Revised Statutes 1909, it brought its opinion into conflict with the decisions of this court already cited. — 130 — County courts have no inherent authority to call local option elections. Their jurisdiction is derived solely from the statute. Section 7238 authorizes, generally, the calling of an election, and Section 7244 specifically prohibits its being called during a named period. The court has no more jurisdiction to call such an election during a period covered by Section 7244 than it would have to call one if there were no Section 7238. Section 7244 is as much a limitation upon Section 7238 as if it had been incorporated therein. It is as much a limitation as the provision that no local option election shall he held within forty days of a municipal or other election. It is a direct negation of the power and jurisdiction of the county court to act in the circumstances named and, in this case, those circumstances appear from the record of the county court and from the opinion of the Court of Appeals. The Court of Appeals proceeds mpon the theory that the case made showed a valid election in 1912. That being true, it showed the condition which brings into operation Section 7244, and that section, when brought into operation, simply negatives the power, and jurisdiction of the county court to call another election until the lapse of the specified period. Counsel say that the filing of the petition in 1913 gave the county court jurisdiction, and then argue that its subsequent acts are not subject to collateral attack.. The trouble with this contention is that it begins by begging the only question involved on this branch of the case. The question is, on the facts stated by the Court of Appeals, simply whether the county court within four years after one local option election has jurisdiction to call another. The eases holding that all acts of the county court after it acquires jurisdiction, are usually presumed to he properly performed and are voidable only in a direct proceeding, are beside the question here. The cases cited (see briefs) which hold that the county court gets jurisdiction of local option election proceedings upon the filing of a petition under Section 7238 are all cases in which no question of a previous election was involved, and, of course, in such circumstances, Section 7238 was the only applicable section. — 131 — Our conclusion on this question is that the Court of Appeals decision that though the ease made showed a valid local option election in 1912, yet the county court had jurisdiction, despite Section 7244, to call another election, conflicts with the decisions already mentioned. We are of the opinion that the failure of the record of the county court to show an election within four" years prior to the filing of a petition for an election under the Local Option Act automatically becomes a part of the record of the proceeding and that the fact no such election has been held in four years sufficiently appears, when it exists, from the record itself without any additional special showing made or finding entered at the time. On the other hand, when the record shows such valid prior election within four years it deprives the court of all jurisdiction to act in calling another election, and presumptions cannot he invoked to aid the proceeding. The decisions to the effect that the filing of the petition confers jurisdiction of the subject-matter are well enough when the court has power to act and, in such circumstances, the orders and judgment made are not open to collateral attack, but these decisions are not applicable to the facts of this case any more than they were to those involved in In re Wooldridge, supra. The principle announced in that case is adopted and re-announced in decisions of this court. ]I. Another ground of affirmance set forth in the opinion of the Court of Appeals is that the Legislature has provided a method of contesting local option elections, and that this procedure is exclusive, and, consequently, relator’s attack upon the election of June 7,1913, cannot be heard. State ex rel. v. Ross, 161 Mo. App. 671; State ex rel. v. Ross, 245 Mo. 36; State ex rel. v. Carter, 257 Mo. 52, are cited. This view must proceed on the hypothesis that the election of 1912 was valid. The cases cited do not go the length of holding that a contest must be instituted to determine the validity of an election when, in the eyes of the law, no election has been held. Within four years after one local option election has been held, — 132 — the county court has no more right or power to call another than has the probate court or a justice of the peace. It has no more power to call such an election than it would have to call a special election for Governor. .Can it be that when there has been no jurisdiction to call an election and, therefore, no election has been held, so far as its legal effect is concerned, one must nevertheless bring a contest proceeding or be barred from showing there was no election? "We do not regard the cases cited as supporting such a conclusion, and we think that conclusion out of harmony with decisions announcing principles, as we have concluded, requiring the conclusion that a local option election held within four years of another valid election is no election at all. It may be the first election was, itself, invalid. That question is not involved in this proceeding. If it was so, it could not suspend the power of the county court to act. The record of the Court of Appeals is quashed. Graves, G. J., Faris and Williams, JJ., concur. Graves, G. J., in separate opinion: Walicer, J., dissents; Woodson, J., dissents in opinion filed; Bond, J., not sitting.