Livesley v. Landon

• Decision Date: 10 February 1914
• Citation: 138 P. 853,69 Or. 275
• Parties: LIVESLEY v. LANDON.
• Court: Oregon Supreme Court

138 P. 853

69 Or. 275

LIVESLEY v. LANDON.

Supreme Court of Oregon

February 10, 1914

Department 1.

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

Contest of election by P. A. Livesley against J. R. Landon. From a judgment for the contestant, contestee appeals. Motion to dismiss appeal sustained.

This is a proceeding instituted by the contestant and respondent to contest the election of the contestee and appellant to the office of mayor of Woodburn. In the court below, judgment of ouster was rendered against the contestee. The contestee has brought the case to this court on an attempted appeal. The contestant and respondent moved for an order dismissing the attempted appeal. The facts appear in the opinion of the court. Motion sustained.

H Overton, of Woodburn, and E. A. Baker, of Portland, for appellant. Blaine McCord, of Woodburn, for respondent.

RAMSEY J.

At the election held in the city of Woodburn, on November 4, 1913 the contestant and the contestee were opposing candidates for the office of mayor of the city of Woodburn, and at this election the contestee received 383 votes and the contestant 378. The contestee was declared elected to said office. On November 12, 1913, the contestant began this proceeding to contest the contestee's election to said office, and to oust him therefrom, on the alleged ground that the contestee was not eligible to said office for the reason he is not a citizen of the United States. Section 1 of chapter 3 of the charter of Woodburn (Laws 1899, p. 532) provides that the mayor of said city shall be a citizen of the United States, etc. This contest was begun under section 3532 and 3537, L. O. L. (the Corrupt Practices Act), and the trial was conducted under section 3533, L. O. L. The court below rendered a judgment ousting the contestee from said office and awarding it to the contestant. The contestee has brought the case to this court on an attempted appeal.

The contestant has filed a motion for an order dismissing the attempted appeal, on the ground that there is no right of appeal from said judgment. Section 3529, L. O. L., provides that any elector of any municipal division of the state may contest the right of any person to any office for which such elector has the right to vote. Section 3537, L. O. L provides a form for the petition for such a contest. Section 3525, L. O. L., confers jurisdiction to hear and determine such a contest, upon circuit courts. Section 3532, L. O. L., provides that, on the filing of a petition for a contest, the clerk shall immediately notify the judge of the court, and issue a citation to the person whose office is contested, citing him to appear and answer, not less than three nor more than seven days after the date of the filing of the petition. Said section provides, also, that the court shall hear such contest, and that cases of contest shall take precedence over all other business on the court docket, and that such cases shall be tried and disposed with all convenient dispatch. It provides, also, that the court shall always be deemed in session for the trial of such cases. Section 3533, L. O. L., provides that the court " shall finally determine all questions of law and fact, save only that the judge may in his discretion impanel a jury to decide on questions of fact." This section requires the court to "forthwith certify its decision to the board or official issuing certificates of * * * election, which board or official shall thereupon issue certificates * * * of election to the person * * * entitled thereto by such decision." The sections referred to supra are parts of what is termed the Corrupt Practices Act. The last clause of the title of said act (Laws of 1909, p. 15) contains the following words relating to contests of elections: "* * * And to provide the manner of conducting contests for nominations and elections in certain cases."

It will be seen that the contests provided for by the sections cited supra are summary special proceedings. They are neither actions nor suits in the ordinary sense of those terms. An ordinary action or suit is commenced by filing a complaint. The plaintiff or his attorney then issues a summons, signed by the plaintiff or his attorney, and this summons requires the defendant to appear and answer if served within the county in 10 days or within 20 days from the date of the service upon him, if served within any other county. In the contest proceeding the clerk issues a citation requiring the contestee to answer not less than three nor more than seven days from the date of the filing of the petition. In an ordinary action or suit, the issues are made up, and the case is tried in term time, when it is reached by the court in the ordinary course of judicial business. The contest proceedings referred to are to have precedence over everything on the docket, and the courts are declared to be in session at all times for the trial of such cases. These contest cases are to be tried without a jury, unless the court, in its discretion, shall submit the facts to a jury. Section 3533, supra, expressly provides that the court shall finally determine all questions of law and fact "unless it impanels a jury to try the facts." Said act makes no provision whatever for an appeal from the decision of the circuit court. The requirement that the circuit court shall " finally determine all questions of law and fact," in view of the further fact that said act makes no provision for an appeal, seems to indicate that the people, in adopting said act, did not intend that the defeated party should have a right of appeal to this court. The contest provided for is clearly a summary special proceeding, and there is nothing in said act manifesting an intention that there should be any appeal. By stating that the lower court should " finally determine the law and the facts," the people seem to evince an intention that the contest proceeding should end with the decision of the circuit court.

In Simon v. Portland Common Council, 9 Or. 437, the facts were that the charter of the city of Portland provided that the common council of that city was " the final judge" in a contest for the office of mayor of said city, and this court held in that case that the decision of the common council could not be reviewed by this court.

15 Cyc. p. 435, says: "The right to appeal from the decisions of inferior courts and tribunals in election cases does not exist, unless it has

been conferred by some constitutional or statutory provision. And statutes authorizing appeals or writs of error to be taken from judgments rendered in civil cases do not apply to contested election proceedings under the statute, as they are not civil cases. But in some jurisdictions appeals and writs of error are authorized in such cases, either by constitutional or statutory provisions."

Volume 7 of the Ency. of Pl. & Pr. p. 394, says: "The right of appeal from judgments and orders in election cases, as in other cases, exists only when granted by some constitutional or statutory provision."

In French v. Lighty, 9 Ind. 476, the court says: "We have found that the act providing for contested elections gives no appeal to the Supreme Court that the act regulating the practice in civil suits only gives an appeal in the cases embraced in that statute, that the act relative to practice in criminal cases only gives an appeal in that class of cases, and that no other statute gives this court jurisdiction of that under consideration; while it is conceded that the court cannot entertain...