22 S.W. 693 (Mo. 1893), The State ex rel. Brown v. Klein

Citation:22 S.W. 693, 116 Mo. 259
Opinion Judge:Sherwood, J.
Party Name:The State ex rel. Brown v. Klein
Attorney:Leverett Bell for relator. John P. Ellis and Ford Smith for defendant.
Case Date:May 30, 1893
Court:Supreme Court of Missouri

Page 693

22 S.W. 693 (Mo. 1893)

116 Mo. 259

The State ex rel. Brown



Supreme Court of Missouri, Second Division

May 30, 1893

Writ denied.

Leverett Bell for relator.

(1) The notice of contest fails to indicate specifically and definitely the grounds on which the contestor intends to rely, and is too general in its character and is insufficient to support the application to open the ballot boxes and to examine and recount the ballots. McCrary on Elections, secs. 394, 400, 402, 404; Revised Statutes, secs. 4672, 4778; Gumm v. Hubbard, 97 Mo. 311; Castello v. Circuit Court, 28 Mo. 259; Shields v. McGregor, 91 Mo. 547. (2) The circuit court possessed no authority to make an order to examine the ballots prior to the June term, 1893, of said court, at which term the contestee, under the notice for the first time, is bound to appear in the proceeding. Revised Statutes, secs. 4706, 4708, 4721; State Constitution, sec. 3, art. 8. (3) Under the constitution and laws of this state the circuit court has no power, jurisdiction nor authority to cause the ballot boxes to be opened and the ballots to be counted and examined in an election contest over an office purely and exclusively municipal. State Constitution, secs. 3, 9, art. 8; O'Connell v. Public Schools, not yet reported; State v. John, 81 Mo. 13; State v. Lobsinger, 7 Mo.App. 106; Revised Statutes, secs. 4721-4726; State v. Dillon, 87 Mo. 487; State v. Francis, 88 Mo. 557; Laws of 1891, p. 106; Revised Statutes, sec. 4706; Laws of 1883, p. 91.

John P. Ellis and Ford Smith for defendant.

(1) By the amendment of 1891 our legislature intended to supply the casus omissus pointed out in Ewing v. Francis, 87 Mo., and this purpose should be made effectual by giving such construction to the amendment as will remedy the defects intended by the legislature to be remedied. Amendment of 1891 (Acts 1891, p. 106); secs. 3, 9, art. 8, Missouri Constitution; State ex rel. v. Ewing, 87 Mo. 487; State ex rel. v. Francis, 88 Mo. 557; Neenan v. Smith, 50 Mo. 525; Spilter v. Young, 63 Mo. 42; State v. Daveling 66 Mo. 375; Smith's Commentaries [1 Ed.], p. 710, sec. 575; ibid. p. 671; ibid. sec. 547, p. 692. (2) The amendment of 1891 must be read as though originally a part of section 4706, when the latter section was placed in the Revised Statutes of 1879, (Revised Statutes, 1879, sec. 5528); that is, when the act of 1883 was passed authorizing the opening of ballots "in any contested election" (1 Revised Statutes, sec. 4721), it must be held to include the municipal contest added by the amendment of 1891, just as though the word "municipal" had been in Revised Statutes (1879), sec. 5528 -- five years before the act of 1883. Potter's Dwarris (1871), p. 190; Endlich Interpretation of Statutes., sec. 294; Holbrock v. Nichols, 36 Ill. 161; Farrell v. State, 24 A. 725; People v. Sweetser, 1 Dak. Rep. 308; Conrad v. Nall, 24 Mich. 277; People ex rel. v. Circuit Judge, 37 Mich. 287; Kamerick v. Castleman, 21 Mo.App. 587; McKibben v. Lester, 9 Ohio State, 627; Queen v. St. Giles, 3 Ellis & Ellis Rep. 224; Louisville v. Commonwealth, 9 Dana (Ky.), 70; Jacoby v. Shafer, 105 Pa. St. 610. (3) The rule of "in pari materia" applied to the construction of statutes, brings all the statutes on the same subject, whenever enacted, into one act and treats them as a whole, and this rule dispenses with the necessity, and even the propriety, of legislation stating that the different acts or amendments are mutual and interdependent. Sutherland Statutory Construction, secs. 284, 288; Farrell v. State, 24 A. 725; State v. Babcock 33 N.W. 247; Potter's Dwarris, p. 189; Linton's Appeal, 104 Pa. St. 228; and cases cited under second heading, supra.


[116 Mo. 262] Prohibition.


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