Bowen v. Hixon

• Decision Date: 31 January 1870
• Citation: 45 Mo. 340
• Parties: WM. H. BOWEN, Plaintiff in Error, v. WM. HIXON, Defendant in Error.
• Court: Missouri Supreme Court

45 Mo. 340

WM. H. BOWEN, Plaintiff in Error,

v.WM. HIXON, Defendant in Error.

Supreme Court of Missouri.

January Term, 1870.

Error to First District Court.

Ewing & Smith, for plaintiff in error.

Johnson & Budd, for defendant in error

I. A notice to contest the office of county clerk must be made within twenty days after the official count of the votes cast for such office has been made. (Gen. Stat. 1855, ch. 2, § 52; Castello v. St. Louis Circuit Court, 28 Mo. 259; Wilson v. Lucas, 43 Mo. 290.)

II. The first count made within eight days after the election was the official count, and after that count was made the board of canvassers was functus officio, and the second count was utterly void. (Gen. Stat. 1855, ch. 2, § 5; Ingerson v. Berry, 14 Ohio St. 321; People ex rel. Bailey v. The Supervisors of Greene, 12 Barb. 217; State ex rel. Attorney-General v. Hixon, 41 Mo. 210.)

III. Notwithstanding Hixon held by virtue of a certificate and commission derived from proceedings which were in themselves void, still he has a prima facie right to the office, and is entitled to hold under his commission until ousted by the government, or a better title is shown in accordance with the requirements of law. The fact that Bowen could not know until more than twenty days after the official count that it was necessary to contest can not change the positive provision of the statute. (Wilson v. Lucas, 43 Mo. 290.)

IV. Notwithstanding Bowen's right to contest the election was defeated by the means and time of Hixon's getting possession of the office, still he had his remedy by an information in the nature of a quo warranto at his relation.

BLISS, Judge, delivered the opinion of the court.

At the general election of 1866, plaintiff and defendant were candidates for the office of county clerk. The record shows that within eight days after the election the county clerk, taking to his assistance two justices of the County Court, proceeded to examine and cast up the votes given for the candidates, and gave a certificate of election to the plaintiff, Bowen. Within twenty days from this official count, Hixon gave him notice that he would contest his election; and it appears that on the 24th of December, after the twenty days had expired, and before the session of the County Court where the contest was to be had, the clerk, again taking to his aid two justices of the County Court, made another canvass, and gave a certificate to defendant, Hixon, who received a commission from the governor and took possession of the office. The plaintiff then gave defendant notice that at the next term of the County Court he would contest his right to the place, which notice was served on the 4th of January, 1867, over fifty days after the first, and some ten days after the second count. At the session of the County Court the defendant moved to dismiss the proceedings for want of proper notice, which motion was overruled, whereupon he suffered judgment and appealed to the Circuit Court, where the same motion was again overruled, and he appealed to the District Court. The latter court reversed the judgment, and the case is brought here upon error.

It is impossible to understand some of these preliminary proceedings. The record fails to throw any light upon their inducement or the circumstances surrounding them; but it is presumed that this is but a chapter of the same controversy considered in some of its aspects in State v. Hixon, and State v. Bowen, 41 Mo. 210-21. The questions we are called upon to decide are purely technical, and their decision must be governed by views long settled and universally acquiesced in. After the first canvass, and the election returns had been regularly and lawfully made, it seems there was an attempt to make a new one, and that the governor's commission was issued to the person declared to be elected on this second canvass. The notice required by the statute was made within twenty days of the second count of the votes, though more than twenty from the first; and we must first consider which was the official count referred to in the statute. Section 52 of the chapter of elections (Wagn. Stat. 573) provides that “no election of any county officer shall be contested unless legal notice of such contest be given in writing to the opposite party within twenty days after the votes shall be officially counted.” The official count referred to is provided for by section 25 of the same chapter, which declares that “the clerk of each county shall, within eight days after the close of each election, take to his assistance two justices of the peace of his county, or two justices of the County Court, and examine and cast up the votes of each candidate, and give to those having the highest number of votes a certificate of election.” It does not appear that the first count, had within the eight days after the election, was not in all respects...