Standefer v. Dykeman , 151 Mo. App. 597 ( 1910 )

COX, J.

This is a proceeding by which plaintiffs seek to enjoin the defendants, who are the judges and clerk of the county court of Jasper county, from appointing judges of election and expending any money for the purpose of conducting an election under the Local Option Law for the county of Jasper outside of the cities of Joplin, Webb -City, Carterville and Car: thage. The order for election was made on the fifth day of January, 1910, for the election to be held on the third day of February, 1910. An application was made to the circuit judge for a temporary restraining order which was denied, and the election was held on the third day of February, as provided by the order of the court. The case was tried on the seventh day of March, 1910, the plaintiffs’ bill dismissed, judgment rendered against them for costs and they have appealed to this court.

It will be seen by this statement that at the time the case was tried all of the things sought to be enjoined in this proceeding had already taken place, but that point is not now urged as a reason for affirming the judgment and the case stands before us on the question of the validity of the election. The election was ordered on January fifth, held on February third, re-suiting in a majority against the sale of intoxicating liquors. Notice of this election was ordered published in the Carthage Evening Press, a newspaper published in the county, issued daily except Sunday, and was published in this paper on January sixth and each succeeding day, except Sunday, upi to and including February third, the day on which the election was held.

Plaintiffs assign as error, first, that the court ordered the clerk to give notice and contend that this was not sufficient; second, that in publishing the notice of the, election it was necessary to give twenty-eight days’ notice and that in making this computation the day of the election and the day of the first publication of the notice should both be excluded.

As to the first contention that the order to the clerk to give a notice was insufficiént, it is sufficient,to say that the notice given in this case included a copy of the order of the court calling the election, was signed by the clerk and attested with the seal of the court and was sufficient. [State v. Brown, 130 Mo. App. 214, 109 S. W. 99.]

The statute provides that notice shall be published for four consecutive weeks, the last insertion shall be within ten days next preceding the election.' Under this statute it is the settled law of the state that four weeks’ notice means twenty-eight days’ notice, and a less time than this is insufficient. [In re Wooldridge, 30 Mo. App. 612; State ex rel. v. Tucker, 32 Mo. App. 620; Leonard v. Saline County Court, 32 Mo. App. 633; State v. Kampman, 75 Mo. App. 188.]

In computing the time, however, the day of the first insertion of the notice is to be excluded and the day of the election is to be included. [State v. Tucker, 32 Mo. App. 615; State v. Brown, 130 Mo. App. 214, 109 S. W. 99; State ex rel. v. Cordell, 137 Mo. App. 207, 117 S. W. 655; Becker v. Lafayette County Court, 138 Mo. App. 248, 119 S. W. 985; State v. Sexton, 141 Mo. App. 698, 125 S. W. 519.] Tbe publication in this case was begun on January sixth and ended on February third, the day the election was held, and by excluding’ January sixth and including February third, twenty-eight days’.notice was given, and, under the authorities above cited, was sufficient. Judgment affirmed.

All concur.