Noonan v. Walsh

• Decision Date: 13 December 1954
• Docket Number: No. 44105,No. 2,44105,2
• Citation: 364 Mo. 1169,273 S.W.2d 195
• Parties: Anna B. NOONAN, Appellant, v. Jennie S. WALSH, Respondent
• Court: Missouri Supreme Court

Page 195

273 S.W.2d 195

364 Mo. 1169

Anna B. NOONAN, Appellant, v. Jennie S. WALSH, Respondent.

No. 44105.

Supreme Court of Missouri, Division No. 2.

Dec. 13, 1954.

Louis B. Sher, Donald J. Sher, St. Louis, for appellant.

Jesse E. Bishop, Michael J. Aubuchon, St. Louis, for respondent.

BARRETT, Commissioner.

On the face of the returns at the August 1952 primary, Jennie S. Walsh was elected to the four year term, V.A.M.S. Sec. 120.790, of Democratic committeewoman from the seventeenth ward of the City of St. Louis, by a vote of 2,428 to 2,193. Her opponent in the election, Anna B. Noonan, instituted this proceeding in the Circuit Court of the City of St. Louis to contest Mrs. Walsh's election. Upon motion the trial court dismissed the proceeding with prejudice, and Mrs. Noonan has perfected her appeal to this court. V.A.M.S. Sec. 124.380.

A committeewoman is elected under the statutes enacted by the General Assembly and is charged with the duty of performing certain functions of government, State ex rel. Ponath v. Hamilton, Mo., 240 S.W. 445, and is, therefore, a 'public officer.' State ex rel. Kaysing v. Ryan, 334 Mo. 743, 67 S.W.2d 983; State ex rel. Dawson v. Falkenhainer, 321 Mo. 1042, 15 S.W.2d 342. And, since an election contest involves 'the title to any office under this state', V.A.M.S.Const.Mo. art. 5, Sec. 3, appellate jurisdiction of the appeal is appropriately in this court. State ex inf. Barrett ex rel. McCann v. Parrish, 307 Mo. 455, 270 S.W. 688; State ex rel. Davidson v. Caldwell, 310 Mo. 397, 276 S.W. 631; Armantrout v. Bohon, Mo.App., 157 S.W.2d 530.

While the election was at a primary, the parties agree that the laws relating to general election contests govern this appeal and the issue involved, rather than the laws relating to primary election contests. State ex rel. Reardon v. Hartmann, 331 Mo. 771, 55 S.W.2d 270. Furthermore, the parties agree that the appeal involves but a single issue and that is whether Mrs. Noonan's notice to contest the election was timely filed, if not the trial court properly sustained the motion to dismiss for lack of jurisdiction. Castello v. St. Louis Circuit Court, 28 Mo. 259; Bowen v. Hixon, 45 Mo. 340; State ex rel. Kaysing v. Ryan, supra; State ex rel. Addison v. Bowron, 335 Mo. 1052, 75 S.W.2d 850; 29 C.J.S., Elections, Sec. 259, page 370; 18 Am.Jur., Sec. 290, p. 368.

The single issue for decision results from this sequence of events: The election was held and the judges and clerks of election counted the ballots and forwarded their tabulations to the Board of Election Commissioners of the City of St. Louis on August 5th. The Board of Election Commissioners met on the 14th day of August and certified the results of the election. The Circuit Clerk received the certified abstract of the votes on the 15th and on August 25th eleven of the circuit judges 'sitting in general term,' upon motion, ordered the abstract of votes filed and made a part of the court's record. On September 15th Mrs. Noonan instituted this proceeding by filing and causing to be served upon Mrs. Walsh her notice of intention to contest the election.

Since the notice of contest was not served within twenty days after the Board of Election Commissioners certified the results of the election on August 14th, Mrs. Walsh contends that the notice was not timely. Because the notice was served within twenty days after the certified abstract had been ordered filed by the Circuit Court on August 25th, thereby enabling the Clerk of the Circuit Court to issue a certificate of election, Mrs. Noonan contends that the notice was timely. The statutes governing general election contests provide, in part, that, 'The several circuit courts shall have jurisdiction in cases of contested elections for county, municipal and township offices * * * but no election of * * * any county, municipal or township officers shall be contested unless notice of such contest is given to the opposite party within twenty days after the votes have been officially counted.' V.A.M.S. Sec. 124.250. It is urged by the appellant that the key words are 'officially counted' and that as applied to this election the votes had not been 'officially counted' until the entire ministerial process had been completed, which was August 25th when the Circuit Court ordered the abstract of votes filed, thereby authorizing the Circuit Clerk to issue a certificate of election. To substantiate her interpretation of the meaning of the statute, the appellant points to the fact that the words have been in our election contest statutes since 1845; 'No election of any county officer shall be contested, unless legal notice of such contest be given in writing to the opposite party, within twenty days after the votes shall be officially counted.' Mo.R.S.1845, Ch. 56, Sec. 53. It is urged that in those days the judges and clerks of election reported the returns to the county clerk after which the clerk was obliged to 'examine and cast up the votes given to each candidate, and give to those having the highest number of votes, a certificate of election.' Mo.R.S.1845, c. 56, Secs. 20-21. It is pointed out that the key words have not been deleted from the election contest statutes and that even now the judges and clerks of election transmit their returns to the county clerk who examines and casts up the votes and issues an election certificate. V.A.M.S. Secs. 111.690, 111.710. In this situation it is urged that the twenty days within which the notice of contest must be given would not start to run until the county clerk had performed all his duties, down to the point of determining who had received the most votes so that the individual could demand and get a certificate of election. As to St. Louis it is urged that the duties historically performed by county clerks under the general election laws have been divided by the General Assembly between three officers, a Board of Election Commissioners, the Circuit Court of The City of St. Louis, and the Clerk of the Circuit Court. And that, by analogy, under this division the Board of Election Commissioners examines the votes, tabulates them and certifies its conclusions to the Circuit Court, the Circuit Court 'meets and orders the abstract entered of record' and finally the clerk issues a certificate of election 'to each person having the highest number of votes, as declared by the order of the circuit court.' V.A.M.S. Sec. 118.610. Therefore, it is contended that the votes were not 'officially counted' until August 25th and that the notice of...