The State ex rel. Brown v. Klein

Citation22 S.W. 693,116 Mo. 259
PartiesThe State ex rel. Brown v. Klein
Decision Date30 May 1893
CourtUnited States State Supreme Court of Missouri

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.

OPINION

Prohibition.

Sherwood J.

This is an original proceeding in this court. Upon a rule to show cause why he should not be prohibited from issuing a writ commanding that the ballot boxes in a certain election contest be opened, the Hon. Jacob Klein, a judge of the circuit court of the city of St. Lonis, has made the following return: "That such writ should not issue because it appears by the relator's petition and by the copy of notice of contest and notice of application accompanying said petition, that under the statutes of the state of Missouri, relating to election contests and to the opening of ballot boxes, by order of circuit courts, that the respondent, as judge of the circuit court, city of St. Louis, before whom said election contest was and is pending, was and is duly authorized to issue a writ directed to the recorder of voters of the city of St. Louis, instructing him to open the ballot boxes, as asked for in the application of the contester named in said notice of contest."

To this return relator demurs on the ground that it does not state facts, etc.

The truth of the return being admitted by the demurrer, the only issue presented for determination is the jurisdiction of respondent to order the opening of the ballot boxes. The issue thus raised brings under review certain constitutional and statutory provisions pertaining to the subject of such jurisdiction.

After providing for the secrecy of the ballot, section three of article eight of the constitution declares: "That in all cases of contested elections the ballots cast may be counted, compared with the list of voters, and examined under such safeguards and regulations as may be prescribed by law." Section nine of the same article commands that: "The general assembly shall, by general law, designate the court or judge by whom the several classes of election contests shall be tried, and regulate the manner of trial and all matters incident thereto,"

In obedience to the requirements of the organic law, the legislature passed a statute which conferred jurisdiction on the circuit courts "in cases of contested elections for county offices." 2 Revised Statutes 1879, sec. 5528; 1 Revised Statutes 1889, sec. 4706. By the act of 1883, laws of that year, page 91, now section 4721, Revised Statutes, 1889, authority was bestowed on "any court before which any contested election may be pending" to issue a writ to have the boxes opened. In State ex rel. v. Dillon, 87 Mo. 487, this court decided under the then existing laws that the circuit court of the city of St. Louis had no jurisdiction to try a contested election cause in regard to a municipal office of that city. In 1891, the general assembly enacted an amendment to section 4706 aforesaid, by inserting therein the words "and municipal," so that that section now reads: "The several circuit courts shall have jurisdiction in cases of contested elections for county and municipal offices," etc. (Laws 1891, p. 106).

The object of the amendatory act is quite plain, it was evidently designed to supply a casus omissus, to confer jurisdiction on circuit courts where, under the former ruling of this court, none existed before, to-wit, in regard to "municipal" offices. The only question therefore is: Did the amendment have the desired and intended effect, or did it fail of its manifest purpose? The statutory provisions already quoted evidently relate to one subject, and have but one object in view. The title of the laws as found in the Revised Statutes of 1879 and of 1889, is "Elections," and the act of 1883 already quoted is "An act to provide for counting, etc., ballots in cases of contested elections." And the act of 1891, before mentioned, is entitled "An act to amend section 4706, etc., in relation to elections." It is readily seen, therefore, from the titles of these acts, both original and amendatory, and the matters therein contained, that they are parts of one common system, and have in contemplation the effectuation of but one common object, to-wit: the conferring of jurisdiction on circuit courts in relation to certain offices and the regulation of the manner of the exercise of the jurisdiction thus conferred.

This being the case, the canon of construction is a familiar one, that: "It is to be inferred that a code of statutes relating to one subject, was governed by one spirit and policy, and was intended to be consistent and harmonious in its several parts and provisions. It is therefore an established rule of law, that all acts in pari materia are to be taken together, as if they were one law; and they are directed to be compared in the construction of statutes, because they are considered as framed upon one system, and having one object in view. If one statute prohibit the doing a thing, and another statute be afterward made, whereby a forfeiture is inflicted upon the person doing that thing, both are considered as one statute. Where an action founded upon one statute, is given by a subsequent statute in a new case, everything annexed to the action by the first statute is likewise given. Indeed, the latter act may be considered as incorporated with the former." Potter's Dwarris on Statutes and Constitutions, pages 189, 190.

Under the operation of this rule of in pari materia the amendment of 1891, became as indissolubly blended with the former acts as if it had been part and parcel of them; as much so as if it had been incorporated in the first instance in the original act which conferred jurisdiction on the circuit courts in relation to contested elections for "county" offices. This view is elsewhere expressed in a somewhat recent work of merit: "No doubt, a statute which is amended is thereafter, and as to all acts subsequently done, to be construed as if the amendments had always been there, and the amendment itself so thoroughly becomes a part of the original statute, that it must be construed in view of the original statute, as it stands after the amendments are introduced." (Endlich Interpretation Statutes, sec. 294.)

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