Higbee v. Ellison
| Decision Date | 16 May 1887 |
| Citation | 4 S.W. 258,92 Mo. 13 |
| Parties | Higbee, Appellant, v. Ellison |
| Court | Missouri Supreme Court |
Appeal from Linn Circuit Court. -- Hon. Gavon D. Burgess, Judge.
Affirmed.
J. H Shanklin, H. Lander, D. H. McIntyre and E. W. Harber for appellant.
(1) The judge erred in considering and deciding the question of jurisdiction on the motion. R. S., sec. 5550; State v Sherwood, 42 Mo. 179. (2) The judge erred in construing and applying the statute defining and fixing the tribunal before which the case should be heard and determined. R. S sec. 5554. (3) To reach the conclusion arrived at by the judge, section 5555 must be construed so as to repeal section 5554, thus defining and fixing jurisdiction by mere inference, which is deemed inadmissible. R. S., sec. 5555; State ex rel. v. Hopkins, 87 Mo. 519, 524, 527; Railroad v. Campbell, 62 Mo. 585; State v. Swope, 72 Mo. 403; Gray v. Bowles, 74 Mo. 419, 424; Coit v. Pitman, 46 Mo. 52, 57. (4) Section 5555, in adopting the provisions of sections 5550 to 5553, inclusive, as applicable to proceedings in a contest for circuit judge, adopts only the procedure as specified in those sections, and does not change the tribunal defined and fixed by section 5554. (5) To make section 5550 literally applicable to a contest for judge of the circuit court, as is contended for, the petition must be presented at the first term, or to three judges thereof in vacation. By what rule can the words "three judges" be construed to mean one judge? R. S., sec. 5550. (6) The section prescribing the tribunal in contests for judge of the Supreme Court and other offices designated is section 5549, and it should be observed that that section is not enumerated in section 5555. (7) In contests for judge of the circuit court, section 5554 defines and places jurisdiction in a a judge of the circuit court, and the proceedings prescribed for a contest in the Supreme Court are made applicable. Neither section 5554 nor 5556 places it in a judge in vacation. (8) The use of the words, "and proceedings therein in the circuit courts and before the judges thereof," in section 5555, prescribing the procedure for contests for judge of the circuit court, does not change the jurisdiction definitely fixed by section 5554. State ex rel. v. Hopkins, 87 Mo. 519.
Williams & Guthrie, Henry & Hagerman and Mullens & Huston for respondent.
(1) When the petition, notice, admitted facts and those of which the officer trying the case must take notice, show there was no authority or jurisdiction to hear and try a cause, a motion to dismiss the petition and quash the notice is always proper. Castello v. Lackland, 28 Mo. 259; Wilson v. Lucas, 43 Mo. 290; State ex rel. v. Woodson, 41 Mo. 227; Thatcher v. Powell, 6 Wheat. 119; 8 Barb. 541. (2) If the cause is triable before a judge, it is an extraordinary power, and the course prescribed by the statute ought to be exactly observed. Thatcher v. Powell, 6 Wheat. 119. (3) The contest for the office of circuit judge must be heard by the judge of the circuit court whose place of residence is nearest to that of the contestee, and at his first term of court after the election, if a term of court is held in any county of the circuit within forty days after the election. If not, then, the petition must be presented to the judge of that circuit in vacation, within forty days after the election, provided no term of court be held in said circuit within forty days. 1 W. S. 576; R. S., secs. 5551-2-3-4-5. (4) To interpret a statute the whole must be taken together. Sedgwick on Construc. of Stat. [2 Ed.] 200, 201; Proctor v. Railroad, 64 Mo. 112, 119; State ex rel. v. Gammon, 73 Mo. 426; State to use v. Heman, 70 Mo. 451. "In putting a construction upon any statute every part shall be so expounded, if practicable, as to give some effect to every part of it." Commonwealth v. Alger, 7 Cush. (Mass.) 89. "Different sections of the same act must, if possible, be construed so as to be consistent with each other." Merrill v. Harris, 26 N.H. 142; 57 Am. Dec. 359. When a statute assumes jurisdiction to exist and makes explicit provision for its exercise, that is sufficient to create jurisdiction. Sedgwick on Const. Law, 228; State v. Miller, 23 Wis. 634. (5) Presenting the petition to "Hon. Gavon D. Burgess, Judge," during the noon recess of court, was not presenting it to the judge thereof in vacation. Session Acts, 1885, 190, 191; 2 Bouvier Law Dictionary, 631, title, "Vacation." The first term of court after the election means the first session, whether regular, called, or adjourned. Adcock v. Lecompte, 66 Mo. 40. A contestor, under the statute, must present his petition to the first term of the court of the circuit begun and held after the election, no matter in what county. If there is no court held in such circuit within forty days after the election, then he must present his petition to the judge "in vacation." If he permits the first term of court to adjourn and neglects to present his petition, then he is out of time. It is intended that the court shall try these cases if possible. If no court, then the judge, in vacation.
At the general election, held on the second of November, 1886, the appellant and respondent were candidates for judge of the circuit court for the twenty-seventh judicial circuit. Mr. Ellison received a majority of four hundred and ninety-one votes. Mr. Higbee endeavored to contest the election on the ground of alleged illegality in the form of the ballots; and to that end presented his petition to the Hon. Gavon D. Burgess, judge of the eleventh judicial circuit, at the courtroom, in the town of Linneus, in Linn county, on the tenth of December, 1886, during the noon recess of the circuit court, which was then being held in said county. A copy of the petition and notice that the same would be presented to Judge Burgess at the time and place before stated was served on the contestee on the twenty-ninth of November, 1886. On the presentation of the petition the contestee moved to quash the notice and dismiss the petition, which was sustained, and from that ruling this appeal was taken.
On argument of the motion below, it was agreed that the Sullivan county circuit court, which is in the eleventh judicial circuit, met in regular session on the fifteenth of November, 1886, and remained in session from day to day until the twenty-fourth day of the same month; and that the Linn circuit court, which is also in the eleventh judicial circuit, commenced its regular session on the sixth of December, 1886, and had continued from day to day to the presentation of the petition, and that the business of the term was not then concluded. Respondent contends that the petition could only be heard by the court at the first term after the election, no matter in what county of the circuit it was held, or by the judge in vacation, within forty days after the election. The appellant insists that the contest is never heard by the court, but always by the judge, whether a court be in session or not.
Section 5549, Revised Statutes, 1879, provides: "All contested elections for judge of the Supreme Court * * * shall be heard and determined by the Supreme Court, or any three judges thereof in vacation." Section 5550: "If any person contest the election of any officer named in the preceding section, he shall present a petition to the Supreme Court, at the first term held next after the election, or to...
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