Kehr v. City of Columbia

• Citation: 116 S.W. 428,136 Mo. App. 322
• Parties: KEHR et al. v. CITY OF COLUMBIA et al.
• Decision Date: 01 February 1909
• Court: Court of Appeal of Missouri (US)

116 S.W. 428

136 Mo. App. 322

KEHR et al. v. CITY OF COLUMBIA et al.

Kansas City Court of Appeals. Missouri.

February 1, 1909.

Rehearing Denied February 27, 1909.

1. INTOXICATING LIQUORS (§ 37)—LOCAL OPTION—ELECTION CONTESTS.

Rev. St. 1899, § 3031 (Ann. St. 1906, p. 1737) of the local option statute provides that the election thereby provided for and its result may be contested as provided by law for the contest of elections for county officers. Sections 7029, 7030 (Ann. St. 1906, pp. 3418, 3419) of the statute providing for contesting elections for county officers contemplate that the parties to the contest shall be the opposing candidates for the office at the election so held, and that the one claiming to have been elected shall be the contestant and the one declared elected shall be the contestee. Held, that a provision for a contest in the local option law cannot be enforced because in a local option election there are no persons elected or defeated who can take the place of contestants and contestees.

2. ELECTIONS (§ 269) — CONTEST — NATURE OF REMEDY.

Election contests are purely statutory; and, in the absence of a statute authorizing them, there can be no such contests.

3. CONSTITUTIONAL LAW (§ 70)—ENCROACHMENT BY JUDICIARY ON LEGISLATURE—SUPPLYING DEFECTS IN STATUTES.

Where there is an omission in a statute as enacted by the Legislature which renders it unenforceable, the court cannot supply such omission.

Appeal from Circuit Court, Boone County; A. H. Waller, Judge.

Action by Carl Kehr and others against the City of Columbia and others. From an order dismissing the proceedings, plaintiffs appeal. Affirmed.

Boyle G. Clark and Robertson & Robertson, for appellants. C. J. Walker, C. B. Sebastian, and W. M. Williams, for respondents.

BROADDUS, P. J.

This action was instituted to contest the election held in the city of Columbia on February 5, 1908, held under what it known as the "Local Option Law" (article 3, c. 22, Rev. St. 1899 [Ann. St. 1906, pp. 1733-1740]). The vote was canvassed and the result declared on the 18th day of February, 1908, which was "against the sale of intoxicating liquors" in said city, as provided by said law. On the 27th day of said month the plaintiffs filed a notice of contest, which failed to state that they were voters and taxpayers, but did state that they were citizens of the city. The city of Columbia, its mayor, the members of the city council, the city clerk, and seven of the parties who signed the petition for holding said election were made contestees. The notice was duly served, to which the city of Columbia, the mayor, the members of the city council, and the city clerk made no response. The parties named, the signers to the petition to hold said election, filed a counter notice of contest, which was served upon plaintiffs on the 16th and 17th of March, 1908. On the 19th day of March the plaintiffs filed an amended notice of contest, in which was recited that they were citizens and taxpayers of the city. Prior thereto the court made an order for a recount of the ballots cast at the election. Thereafter the city of Columbia, the mayor, the members of the city council, and the city clerk filed an answer to the motion to contest, in which they stated, among other things, that they had no interest in the controversy as contestees, and asked that the action be dismissed as to them. And thereafter the remaining contestees filed a motion to dismiss all of said proceedings on several grounds, among which were assigned the following: "Because there is a defect of parties contestees," and "because the contestants herein have no right or authority of law to institute and prosecute this proceeding." The motion was sustained. The plaintiffs appealed.

It seems that the court decided the case on the ground that the local option statute does not provide for parties contestant and contestee in such cases. Section 3031 of the article providing for a contest contains the following: "The election in this article provided for, and the result thereof, may be contested in the same manner as now provided by law for the contest of elections for county officers in this state." Sections 7029 and 7030 of the statute (Ann. St. 1906, pp. 3418, 3419), providing for contesting elections for county officers, contemplate that the parties to the contest shall have been the opposing candidates for the office at the election so held, and that the one claiming to have been elected shall be the contestant, and the opposite party, who has been declared elected, and has his certificate to that effect, shall be the contestee. Here, the plaintiffs are making no claim as candidates for office, and neither are the defendants. Consequently they do not come within the express language of the law, either as to contestants or contestees. But it is insisted that, as the Legislature intended that elections under the local option law might be contested as a matter of right, its purpose should not be rendered nugatory by reason of the failure in the act to declare specifically who should be contestants and contestees, and that it is the duties of the courts to exercise their powers to effectuate that purpose.

To sustain this proposition our attention has been called to some adjudicated cases. In Village of Metamora et al. v. Village of Eureka, 163 Ill. 9, 45 N. E. 209, the proceeding was to contest a county seat election. In the course of the opinion a statement was made that prior to the adoption of the statute providing for contests in county seat cases, and where no method was provided for contesting an election upon the question of removing county seats, the courts of chancery took jurisdiction under their general powers to determine the legality and the result of such election. The court dismissed the action because the county had not been made a party to the contest, as provided by the statute. In Lusk v. Thatcher, 102 Ill. 60, the case was one in equity to contest an election for organizing certain territory into a village. It was held that: "If it is impossible to make the village a party for want of the election of officers, a proper representation should be made a party; otherwise no decree would bind the corporation." In Truelson v. City of Duluth, 60 Minn. 132, 61 N. W. 911, it is held that a contest of any general or special city election can be had under the general provisions of the statute for contesting elections. The opinion reads: "So we are brought to inquire whether an omission to point out and specify the officer or officers of a city upon whom the notice shall be served presents the contesting of an election held for the purposes of the one in controversy. In view of the evident design of the act to bring within its operation all city elections, we feel inclined to make every one of its provisions effective if it can be reasonably...