Miles v. City of Macon

• Decision Date: 01 November 1915
• Docket Number: No. 11697.,11697.
• Citation: 186 S.W. 10,193 Mo. App. 306
• Parties: MILES v. CITY OF MACON.
• Court: Missouri Court of Appeals

186 S.W. 10

193 Mo. App. 306

MILES v. CITY OF MACON.

No. 11697.

Kansas City Court of Appeals. Missouri.

November 1, 1915.

Rehearing Denied May 1, 1916.

Appeal from Circuit Court, Macon County; Nat M. Shelton, Judge.

Election contest by Ed. T. Miles against the City of Macon, Mo. Judgment on demurrer dismissing the contest, and contestant appeals. Reversed, and cause remanded.

Charles P. Hess, of Macon, and Whitecotton & Wight, of Moberly, for appellant. Andrew Field, C. G. Buster, Matthews & Son, and Guthrie & Franklin, all of Macon, for respondent.

TRIMBLE, J.

Macon, a city of the third class, held a local option election on December 8, 1913. The proper officials canvassed the returns, and found that 914 ballots were cast of which 475 were "against the sale of intoxicating liquor" and 439 were "for the sale of intoxicating liquor," giving to the side opposed to the sale thereof a majority of 36. Thereupon, Ed. T. Miles brought this proceeding to contest said election under that portion of section 7242, R. S. Mo. 1909, which says:

"The election in this article provided for, and the result thereof, may be contested in the same manner as is now provided by law for the contest of the elections of county officers in this state by any qualified voter of the municipal body or of the county in which said * * * election shall be held by an action to contest as herein provided, and which shall be brought against the municipal body or the county holding said election."

Sections 5924, R. S. Mo. 1909, in relation to contests of county officers, provides that no election shall be contested unless notice be given the opposite party within 20 days after the official count. It further provides that such notice —

"shall specify the grounds upon which the contestant intends to rely, and if any objection be made to the qualifications of any voters, the names of such voters and the objections shall be stated therein."

The notice of contest, when filed in the circuit court of the county wherein such election was held, fills the same office in the pleadings that the petition does in an ordinary suit, and service thereof upon the contestee constitutes summons. Hale v. Stimson, 198 Mo. 134, 95 S. W. 885. Contestant filed his notice on December 27, 1913, and the same was made returnable to the following April term of court. Said notice, as originally filed, attacked the election upon grounds which fall into two general and distinct groups or classes: First, the reception and counting, against the sale of liquor, of more than 79 illegal ballots cast by that number of specified persons who were not qualified voters, and the rejection and refusal to count certain other legal ballots offered by certain named qualified voters who were for the sale of intoxicating liquors and who desired to vote, and would have voted, that way; second, that no legal election was held in conformity to the election laws of the state, but the election that was held was illegal and void because it was not held in compliance with nor in conformity to the Australian Ballot Law. The contestee appeared at the April term and filed a motion to strike out parts of said notice, and also a motion to make more definite and certain. Thereupon contestant filed an amended notice, and then a second amended notice. The contestee filed a motion to make this last more definite and certain, which was sustained. Thereupon contestant filed a third amended notice to which contestee demurred, and the court sustained it. Whereupon contestant obtained leave of court at said April term to file his fourth amended notice on or before September 1, 1914, in vacation. Said fourth amended notice was filed on said date, and is the one on which contestant now stands. In this last pleading, contestant abandoned, or omitted, all allegations which could be classed within the first group of grounds hereinabove stated, namely, the reception of illegal ballots and the refusal to accept legal votes. In lieu of these, contestant brought in a new class of grounds, based upon the alleged invalidity of the petition upon which the election was called, the insufficiency of the steps taken by the city council in calling the election and in declaring, publishing, and certifying to the result afterward. These matters were in no way related to any of the grounds of contest contained in the original notice, which was the only one filed within the 20 days required by law. Said new grounds were not only separate and distinct from the grounds of the original notice, but they dealt with matters so wholly unrelated thereto that they could not be said to be germane to any of said original objections to the election. Contestee filed a motion to strike out these new grounds, which motion the trial court sustained. The court also struck out another portion of said fourth amended notice which we think perhaps might have been treated as a part of the allegations relating to the nonobservance of the Australian Ballot Law in the manner of holding the election. We will speak of this later in the proper place. After the court had acted upon contestee's motion to strike out, as above stated, contestee filed a motion to make the remainder of contestant's notice more definite and certain. This the court overruled. Contestee then demurred to said fourth amended notice, and was sustained. Whereupon contestant stood upon his notice and declined to plead further. Judgment was then entered on the demurrer dismissing the contest, and contestant appealed. He complains of the court's action in striking out parts of his notice and in sustaining said demurrer.

So far as concerns the striking out of that portion of the fourth amended notice setting up new grounds of contest wholly unrelated to any of those filed within the time allowed for filing a contest, the court's action was proper. Aside from the charge that the part so stricken out did not state facts, but only alleged conclusions of law as to the invalidity of the petition calling for the election and the action of the city authorities in regard thereto, the part so stricken out attempted to raise new issues presenting an entirely new theory and requiring a new and different defense. In other words, it was in the nature of a departure from the cause of action or grounds alleged in the original notice. The object sought by contestant in bringing the suit originally was to either change the result of the election, or to have it annulled for certain specified reasons. The facts creating these grounds constituted, or went to make up, his cause of action. If now, after having begun his suit based upon a cause of action inuring to him by virtue of one or more given state of facts, he introduces a cause of action arising out of a new and wholly different state of facts, it would seem that the new matter ought to be stricken out as a departure. But regardless of whether or not it was a departure, considered as a mere matter of pleading, still we do not think a contestant of such an election should be allowed, after the lapse of the time provided by law for that purpose, to bring in, by way of amendment, new grounds in no way related to those alleged within the proper time. The law evidently contemplates that if any one has any objections to an election, he will present them and give notice thereof within 20 days. The matter is not to be left open indefinitely, but the objections must be raised within a limited time when the facts are fresh in the minds of all and the evidence regarding the issue is still in existence. It is to the interest of the public that, when the validity of a local option election is called in question, the reasons for such contest should be promptly stated, so that they may be as promptly investigated and determined. For a contestant to file a contest within 20 days alleging one ground of contest, and then, after the lapse of time has blurred the memory of witnesses, or they have become scattered, and the evidence as to the true facts has become unavailable, bring in an entirely new ground of attack by way of amendment to his original notice, would prolong the time in which such a contest could be brought beyond the limits prescribed by the terms as well as the true spirit, intent, and meaning of the law. We are not saying that if a contestant files his notice within the proper time and alleges all the grounds available, and then in the course of the investigation an additional ground is disclosed, which until then had been hidden and undiscoverable, he cannot add that to his other charges. We are not passing upon that question, since that is not the state of facts existent here. The new grounds contestant seeks to bring in by way of amendment, and which the court struck out, did not relate to hidden and undiscoverable matter unearthed by testimony given in the course of the judicial investigation, but related solely to matters of record known, or which could have been known, to contestant the very moment he first started his contest. This being true, the law gave him 20 days in which to base a contest on them, and, if he failed to do so within that time, we do not think he should be allowed to avail himself of them afterward. To do so would be to render local option elections open to attack indefinitely, and keep disturbed and unsettled matters which the law and the public interest demand should be speedily settled and determined. The court, therefore, ruled correctly in striking out the new grounds set up in the fourth amended notice.

The next question is, should the demurrer have been sustained? The various allegations of said fourth amended petition, aside from those already discussed and the merely formal parts relating to the qualifications of contestant, may be summarized as follows:

(1) That no legal election was held as required by law for the reason that the same was not held in substantial compliance with and conformity to the...