Kehr v. City of Columbia
| Decision Date | 01 February 1909 |
| Citation | 116 S.W. 428,136 Mo.App. 322 |
| Parties | CARL KEHR et al., Appellants, v. THE CITY OF COLUMBIA et al., Respondents |
| Court | Kansas Court of Appeals |
Appeal from Boone Circuit Court.--Hon. Alonzo D. Burnes, Acting Judge.
AFFIRMED.
Judgment affirmed.
Boyle G. Clark and Robertson & Robertson for appellants.
(1) The statute provides a complete method for the contest of an election held under art. III of chapter 22 of the Revised Statutes of 1899. R. S. 1899, secs. 3031, 7029, 7031, 7033; State ex rel. v. Smith, 104 Mo. 661; Montgomery v. Dormer, 181 Mo. 5; State ex rel. v. Evans, 184 Mo. 632; State v. McIlhaney, 199 Mo. 67. (2) In contesting the election on any proposition submitted to a popular vote, it is necessary that the public in some way be made a party to the contest. 15 Cyc. 403; Metamora v Eureka, 163 Ill. 9, 45 N.E. 209; Lisk v Thatcher, 102 Ill. 60; Perry v. Whittaker, 71 N.C. 477. (3) The party to the contest is provided by section 3031 by necessary implication. Whenever a power is conferred by statute, everything necessary to carry out the power and make it effectual and complete will be implied. 26 Am. and Eng. Ency. of Law, 613, 614; Wilson County v. Bank, 103 U.S. 770; State ex rel. v. Rombauer, 104 Mo 619; Bowers v. Smith, 111 Mo. 45; Cain v. Railway, 112 Mo. 34. (4) A cardinal rule of statutory construction is that every part of an existing statute should be given force rather than any part should perish by construction. Duff v. Karr, 91 Mo.App. 16; Springfield v. Starke, 93 Mo.App. 70; O'Laughlin v. Kirkwood, 107 Mo.App. 302.
Charles J. Walker, C. B. Sebastian and W. M. Williams for respondents, Cole, Stewart and others.
(1) Election contests are purely statutory. There must be legislative authority to authorize the courts to entertain them. Those, who institute such proceedings, must be able to put their finger upon a statute conferring the right upon them to conduct such contests. State ex rel. v. Dillon, 87 Mo. 487; State ex rel. Ewing. v. Francis, 88 Mo. 557; Taafe v. Ryan, 25 Mo.App. 563; State ex rel. v. Elkins, 130 Mo. 10; 15 Cyc. 393, note 66. (2) "At common law, there was no such proceeding know as a contested election." State ex rel. v. Hough, 193 Mo. 643. (3) The law regulating the manner of conducting contested election in a code unto itself. State ex rel. v. Spencer, 166 Mo. 285. (4) Contestants, who are appellants in this court, have no interest in the subject-matter of the action different from other citizens and electors of the community and have no right to sue or appear in behalf of the public, except as specially authorized by statute. Baker v. McDaniel, 178 Mo. 447; Warren v. Kavanaugh, 33 Mo.App. 102; Chicago, K. & W. R. Co. v. Evans, 21 P. 216; Williams v. People, 88 P. 463; Beason v. Shaw, 42 So. 611; Thomas v. Franklin, 60 N.W. 568; Sebering v. Basedo, 67 N.W. 148; Damerest v. Wickham, 63 N.Y. 320. (5) The provision of section 3031, Revised Statutes 1899, stating, that elections under the Local Option Law may be contested, in the same manner as provided for contests of election of county officers, does not confer upon contestants the right to maintain this proceeding and is insufficient to justify this contest, and the trial court properly dismissed the same. Beason v. Shaw, 42 So. 611; Thomas v. Franklin, 60 N.W. 568; Sebering v. Bastedo, 67 N.W. 148; Williams v. People, 88 P. 463. (6) If the lawmaking power of the State has not declared who may institute such a contest and against whom it is to be brought, the courts cannot supply the omission. Where there is a deficiency in the law--a casus omissus--the courts cannot supply it by intendment. The legislative power can alone furnish the remedy. Ex parte Donaldson, 44 Mo. 149; State ex rel. v. Clark, 57 Mo. 26; Belkin v. Hill, 53 Mo. 496.
This action was instituted to contest the election held in the city of Columbia on February 5, 1908, held under what is known as the Local Option Law, article III, chapter 22, Revised Statutes 1899.
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 7079 and 7030 of the statute 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 duty 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 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 (Minn.), 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, As the act provided, for notice of contest to be served on the board of county commissioners, the court held that notice of contest served "on the official body of the city or one of its members was sufficient as that body corresponded with the board of county commissioners." Whaley v. Bayer (Minn.), 109 N.W. 820, was a case involving an election contest. Section 203 of the statute authorized the district courts of the State to hear and determine election contests instituted thereunder by the filing of an affidavit and the issuing of an order to show cause. The court said, ...
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