SEPARATE CONCURRING OPINION.
NIXON, P. J.— Questions in addition to those passed upon by my Brother Mann in his opinion are, I think, presented by appellant and are properly within the record and for consideration. While I am entirely in accord with the conclusions reached in the opinion of the learned Special Judge, I find additional grounds for concurring in the result which he has reached, and which I deem it important to be stated in this case.
The defendant at the trial offered in evidence by way of his defense a census properly taken by the city of Granby in Newton county. The petition for an election under the local option law was presented to the county court of Newton county and an election ordered on May 2, 1904. The census was taken by the city of Granby on June 3, 1904, showing a population of 2557 inhabitants. On June 8, 1904, the result of the local option election in the county was properly canvassed and the entry was made that such canvass showed that local option had carried in said county by a majority of 146 votes. The county court ordered the result to be spread upon the records and caused due publication to be made of the result thereof, and no question is raised in this case but what the proceedings in calling the local option election, canvassing and publishing the result, and all other proceedings in regard to . such matter, were in strict conformity to the statute in such cases, unless they were *339rendered void by the taking of the census in the city of Granby.
The only force of this evidence and the only purpose for which the Granby census was offered by defendant was a collateral attack on the proceedings of the county court in regard to a subject-matter over which the statute had given the county court exclusive jurisdiction, and upon the state’s objection to the introduction of such census as being irrelevant and immaterial the court should have excluded it. Presentation of a proper petition for a local option election gave the county court of Newton county jurisdiction of the subject-matter. [State v. McCord, 207 Mo. 519, 106 S. W. 27; Daubie v. Ossman, 142 Mo. l. c. 505, 54 S. W. 338; State ex rel. Brown v. Wilson, 216 Mo. 215, 115 S. W. 549; Halter v. Leonard, 223 Mo. 286, 122 S. W. 706.] A collateral attack is defined as one in which the invalidity of proceedings or of a judgment of a court is predicated upon matters dehors the record. [Meinert v. Harder (Or.) 65 Pac. l. c. 1058; City of Greensburg v. Zoller (Ind.), 60. N. E. l. c. 1008, and cases cited.] Any proceeding must be regarded as a collateral attack which is not instituted for the express purpose of annulling, correcting, or modifying the judgment. [Johnson v. Stebbins-Thompson Realty Co., 167 Mo. 325, 66 S. W. 933.]
There are two provisions in our statutes as to the taking of a census. Section 7239, Revised Statutes 1909, provides, “that for the purpose of determining the fact of whether or not any town shall be governed by the provisions of this section, such body having legislative functions therein may, under an ordinance thereof, take a census of the inhabitants of such town, and the result, of such census shall be entered upon the journals and records thereof, and such entry, or a certified copy theerof, shall be proof- of such fact, and shall be filed with the clerk of the county court of the county in which such town is situated.” A compliance with the terms of this section and the entry of the result of such census upon the journals or records of the town taking the *340same makes the result, of the census proof of the number of inhabitants of such town. The other section-9639, Revised Statutes 1909' — appears in the article on “Cities and Towns Under Special Charters.” It was not enacted for or made specially applicable to any purpose connected with the local option law; nor was it enacted to enable any such town to determine whether it had such a population as would entitle it to determine for itself whether intoxicating liquors should be sold therein. It does apply, however, to cities of the fourth class and provides that upon taking such census as therein provided “all courts of this state shall take judicial notice of the population of such city or town.” It is therefore clear from its express terms that the census taken in compliance with the statute and by force thereof imparts notice to all courts of the number of inhabitants therein, but neither by'its terms express or implied does it require any action shall be taken by the courts by reason of such notice. It bound the courts to take notice, but attached no consequences to failure to' take such notice; it was evidence which a court, should regard but which it might disregard; but to say what the statute does not say, that such notice rendered void any subsequent acts of a county or other court in a matter over which they had already acquired jurisdiction prior to the census is, in my opinion, not only a flagrant non sequitur, but is subversive of fundamental legal principles : It is in effect to write into the statute what the Legislature has not enacted. When jurisdiction has once attached, everything done within that jurisdiction, however irregular or erroneous, is immune against collateral attack. The power to decide right includes the power to decide wrong, and the decision is as binding in the one cáse as in the other against collateral attack. [State v. Wear, 145 Mo. 162, 46 S. W. 1099; Bedford v. Sykes, 168 Mo. 8, 67 Mo. 569; Chouteau v. Gibson, 76 Mo. 38.] The language of the statute is unambiguous, and in such cases courts have no authority on the ground *341of any supposed public policy to amend or add to the law by construction, and to do so is to take upon themselves the exercise of legislative powers. [Kehr v. Columbia, 136 Mo. App. l. c. 329, 116 S. W. 428; St. Louis & Iron Mountain R. Co. v. Clark, 53 Mo. 214; Hyatt v. Taylor, 42 N. Y. l. c. 258; Benton v. Wickwire, 54 N. Y. 226.] The law does not favor the ouster of jurisdiction of courts after it has once attached. As stated in State v. McCord, supra, “the county court, having acquired jurisdiction of the subject-matter of controversy and of the petitioners, the validity of its proceedings thereafter' with respect to the same matter is not subject to collateral attack, as is sought to be done in this case.” When the jurisdiction of a court is exclusive and such jurisdiction had once lawfully attacked it cannot be ousted by subsequent events or facts arising in the case, but the court may proceed to final judgment unless some constitutional statute operates to divest that particular court of its jurisdiction. [11 Cyc. 690; State ex rel. Renick v. St. Louis County Court, 38 Mo. 402; Hiardin v. Lee, 51 Mo. 241; Seibel v. Simeon, 62 Mo. 255; Shea v. Shea, 154 Mo. 599, 55 S. W. 869.]
The principles herein announced as to collateral attack apply to proceedings under the local option act; and the validity of a local option election is not subject to collateral attack. [People v. Hamilton, 58 N. Y. Supp. l. c. 962; State ex rel. Peacock v. Village Council of Osakis (Minn.) 128 N. W. 295, 297; Gieb v. State (Tex.) 21 S. W. 190; Janks v. State (Tex.) 15 S. W. 815; Anderson v. State (Tex.) 44 S. W. 824; Commonwealth v. Jones (Ky.) 84 S. W. 305; State v. McCord, supra; State ex rel. Ryan v. Wooten, 139 Mo. App. 221, 122 S. W. 1101.] As was stated in the Ryán case, in my judgment the law has given us its mandate to uphold and maintain, and not invalidate the expressed will of the electors of Newton county in the local option election.