Messick v. Duby

• Decision Date: 20 November 1917
• Citation: Messick v. Duby, 86 Or. 366, 168 P. 628 (Or. 1917)
• Parties: MESSICK v. DUBY.
• Court: Oregon Supreme Court

168 P. 628

86 Or. 366

MESSICK v. DUBY.

Supreme Court of Oregon

November 20, 1917

In Banc.

Appeal from Circuit Court, Baker County; Gustay Anderson, Judge.

Election contest by J. B. Messick against William Duby. From a judgment dismissing the proceeding, the contestant appeals. Reversed and remanded.

This is a special proceeding to contest an election to the office of county judge of Baker county, Or. Prior to the election J. B Messick, plaintiff herein, was the duly elected, qualified and acting county judge of that county. On June 4, 1917, a special recall election was held therein to recall that official and elect his successor. It is alleged that upon an official canvass of the returns from various precincts of the county of the poll books and tally sheets of the election the canvassing board erroneously found that the number of votes cast in favor of the recall of plaintiff and contestant for the office above named was 2,166, and those against his recall numbered 2,134, and that the defendant and contestee received 2,171 votes for that office, and plaintiff 2,075. Desiring to contest the election of the defendant, William Duby, to that office, on June 14, 1917, plaintiff filed in the circuit court of the state of Oregon for Baker county his notice of contest stating the grounds in compliance with the provisions of sections 3426-3430, L. O. L. The service of notice made was in conformity with the provisions of those sections. Counsel for William Duby, contestee, appeared specially and moved the court to quash the attempted service of notice upon the grounds that the court was without jurisdiction to determine the cause, for the reason that the notice served upon the defendant did not cite the defendant to appear and answer therein not less than three nor more than seven days after the filing of the petition, and in effect that the proceedings had not been commenced and proceeded with in accordance with the requirements of section 3529 et seq., L. O. L., which constitute a part of the Corrupt Practices Act, contained in Laws 1909, pp. 15-38. The trial court being of the opinion that sections 3426-3430, L O. L., had been repealed by implication upon the passage of the above act sustained the motion and entered judgment dismissing plaintiff's proceeding, from which judgment he appeals.

John L Rand, of Baker (Wm. H. Packwood, Jr., and C. T. Godwin, both of Baker, on the brief), for appellant. M. D. Clifford and Wm. Smith, both of Baker (Clifford & Correll and Smith & Smith, all of Baker, on the brief), for respondent.

BEAN J. (after stating the facts as above).

The only question for determination in this case is whether or not sections 3426-3430 were repealed by implication by the enactment of the Corrupt Practices Act in 1909. It is the contention of counsel for contestee that the old statute, chapter 7, title 27, has been superseded entirely by that act, and that this election contest should have been begun and proceeded with under the later law.

Section 3426, L. O. L., provides:

"Any person wishing to contest the election of any person to any county, district, township, or precinct office, may give notice in writing to the person whose election he intends to contest that his election will be contested, stating the cause of such contest briefly, within thirty days from the time said person shall claim to have been elected."

Under this section no election contest is permissible except by persons claiming the office. Marsden v. Harlocker, 48 Or. 90, 85 P. 328, 120 Am. St. Rep. 786.

The title of the Corrupt Practices Act is as follows:

"To propose by initiative petition a law to limit candidates' election expenses; to define, prevent and punish corrupt and illegal practices in nominations and elections; to secure and protect the purity of the ballot; to amend section 2775 of Bellinger & Cotton's Annotated Codes and Statutes of Oregon; to provide for furnishing information to the electors and to provide the manner of conducting contests for nominations and elections in certain cases." Laws Or. 1909, p. 15.

This act is embraced in sections 3486 to 3539, L. O. L., inclusive. Section 3529, L. O. L., is as follows:

"Any elector of the state, or of any political or municipal division thereof, may contest the right of any person to any nomination or office for which such elector has the right to vote, for any of the following causes: 1. On the ground of deliberate, serious and material violation of any of the provisions of this act, or of any other provisions of the law relating to nominations or elections. 2. When the person whose right was contested was not, at the time of the election, eligible to such office. 3. On account of illegal votes, or an erroneous or fraudulent

count or canvass of votes."

Many of the general provisions of the act of 1909 are set forth at length in Livesley v. Landon, 69 Or. 280, 138 P. 853, and need not be detailed here.

In the determination of the question of whether or not a former statute has been repealed by a later one, the intention of the lawmakers controls the courts, the same as in the construction of a law. It is a universal rule that a later act does not by implication repeal a former, touching the same subject-matter, where there is no repugnancy between them, and both can be sustained and enforced. Repeals by implication are not favorites of the law, and if it is not perfectly manifest either by repugnancy which cannot be reconciled, or by some other means clearly showing the intent of the lawmakers to abrogate the former statute, both must be held to be operative. State v. Benjamin, 2 Or. 125, 126; Strickland v. Geide, 31 Or. 373, 49 P. 982; Cunningham v. Klamath Lake R. Co., 54 Or. 13, 20, 101 P. 213, 1099; Booth's Will, 40 Or. 154, 156, 61 P. 1135, 66 P. 710; Sandys v. Williams, 46 Or. 327, 331, 80 P. 642; P. Elevator Co. v. Portland, 65 Or. 349, 387, 133 P. 72, 46 L. R. A. (N. S.) 363; Du Bois Lumber Co. v. Clatsop Co., 74 Or. 409, 145 P. 653. The enactment of the Corrupt Practices Act by the people of the state does not indicate that it was the intention to supplant or repeal the former statute relative to the contest of an election to a county, district, or precinct office. We find no repugnancy between the two statutes. They are not inconsistent. Both can be harmoniously enforced. As we have heretofore said in effect: The later act covers a wide field and makes various provisions relating to "the manner of conducting contests for nominations and elections in certain cases." But we think it does not contain all the provisions for such a proceeding. The older law (section 3430, L. O. L.) contains a plain command that the same shall not be construed so as to impair the right to contest any election in the manner otherwise provided by law. While the later statute does not provide for an appeal from the judgment of the circuit court, it in no way displays an intention to take away the right of appeal conferred by the old act. See Livesley v. Landon, 69 Or. 275, 280, 138 P. 853; Tazwell v. Davis, 64 Or. 325, 330, 130 P. 400. Neither does the Corrupt Practices Act purport to take away the right of one claiming the office to contest the election of another person to any county, district, or precinct office under the former law without giving a bond for costs. The act of 1909 provides for the contest of nominations and elections of offices not embraced in the older law and on different...