State ex rel. Bulger v. Southern

• Decision Date: 14 June 1919
• Citation: 214 S.W. 100,278 Mo. 610
• Parties: THE STATE ex rel. MILES BULGER, Petitioner, v. ALLEN C. SOUTHERN, Judge of Circuit Court of Jackson County at Kansas City, and BERT W. WELCH
• Court: Missouri Supreme Court

214 S.W. 100

278 Mo. 610

THE STATE ex rel. MILES BULGER, Petitioner, v. ALLEN C. SOUTHERN, Judge of Circuit Court of Jackson County at Kansas City, and BERT W. WELCH

Supreme Court of Missouri

June 14, 1919

Preliminary rule made absolute.

H. S Julian, T. A. J. Mastin and A. L. Cooper for appellant.

(1) Election contest proceedings are everywhere regarded and treated as special statutory proceedings, and are not civil suits, and the statute in reference to contests must be strictly construed. There is no implication in its favor and resort cannot be had to the Code of Civil Procedure. State ex rel. v. Spencer, 166 Mo. 279; State ex rel v. Hough, 193 Mo. 643; Castello v. Court, 28 Mo. 277; Bowen v. Hixon, 45 Mo. 340. (2) Where a right depends upon giving a notice in a given time, and the notice is not given in the required time, it is jurisdictional, and unless strictly complied with, the court is without authority to proceed. Bowen v. Hixon, 45 Mo. 344; 15 Cyc. 400; Barker v. Railroad, 91 Mo. 86; McIntosh v. Railroad, 103 Mo. 131; Mathewson v Railroad, 219 Mo. 542 to 549; Chandler v. Railroad, 251 Mo. 592, 600. (3) The notice of contest constitutes both a petition and a writ. Castello v. Court, 28 Mo. 277; State ex rel. v. Klein, 116 Mo. 259. (4) If it was a writ, the sheriff had twenty days in which to serve it personally upon the contestee, or by leaving a copy at his usual place of abode with some member of his family over fifteen years of age, and had no right to resort to constructive service by posting it up in the clerk's office, until the twenty days had expired. And, if he resorted to constructive service at two o'clock p. m. November 30, 1918, it was premature and the constructive service did not bring the contestee into court. Lumber Company v. McCabe, 220 Mo. 167; Van Natta v. Real Estate Company, 221 Mo. 377; Tooker v. Leake, 146 Mo. 419; Cummings v. Brown, 181 Mo. 711. (5) Sec. 5928, R. S. 1909, is mandatory that this contest, if brought at all, should have been brought at Independence, where the regular term of court opened December 2, 1918. State ex rel. v. Evans, 184 Mo. 632; Montgomery v. Dormer, 181 Mo. 5; Adcock v. Lecompt, 66 Mo. 40. (6) There is no authority given in Article 6 of Chapter 42, or anywhere else in the statutes, to the court to make an order upon the board of election commissioners. (7) Sections 5939, 5940, 5941, 5942 and 5943 show that the General Assembly has acceded to the demands of the Constitution in placing safeguards around the secrecy of the ballot, so far as the Clerk of the county court is concerned, but it has been derelict in that regard so far as the board of election commissioners is concerned. State ex rel. v. Dillon, 87 Mo. 487; State ex rel. v. Spencer, 164 Mo. 23; Ex parte Arnold, 128 Mo. 256; State ex rel. v. Frances, 88 Mo. 557; State ex rel. v. Board of St. Louis Public Schools, 112 Mo. 213.

Watson, Gage & Watson for respondents.

(1) Under the various statutes there can be no question about the power and duty of the court in an election contest to command the election commissioners to open the ballot boxes. (2) The official count was completed on the 11th day of November. The contestant had twenty days from that date within which to serve his notice of contest. The notice was filed on the 27th day of November, and posted November 30th. The first day of the term at Independence began on the 2d day of December. There were not fifteen days intervening. But the notice was filed and served within twenty days. The notice of contest was, therefore, filed less than fifteen days before the December Term, and hence could not be returnable at that term. Ramsey v. Huck, 267 Mo. 339; State ex rel. v. Hough, 193 Mo. 647. The language of the statute is specific that it shall be tried at the first term held fifteen days after the official count and service of notice of contest. The service of notice of contest was had within the twenty days, and this contest is brought to the first term of the Circuit Court of Jackson County held fifteen days after the filing of the notice of contest. (3) The court will take judicial notice of the fact that December 1st came on Sunday, and under Sec. 8057, R. S. 1909, Sunday was excluded, and the last day for service was the day previous, or Saturday, November 30th, the day upon which this notice was posted. State ex rel. v. McElhinney, 199 Mo. 80. The only question, then is, whether the sheriff, having held this notice from November 27th up to and including two o'clock, p. m. of the last day upon which service could be had, made a premature return by posting up this notice in the office of the clerk. The officer certifies that he had made diligent search for and failed to find Miles Bulger in Jackson County, from the 27th day of November up to and including two o'clock, p. m. November 30th, the last day for service, and that he also made diligent search for and failed to find any member of his family over the age of fifteen years, in Jackson County, from November 27th up to and including November 30th, at two o'clock, p. m. The remarkable contention is made in this case that the sheriff should have held the writ the full twenty days in order to get personal service on Bulger before posting the same in the office of the clerk of the circuit court. In other words, that he must give full twenty days' time in which to serve Bulger personally before he could resort to constructive service. Such a contention absolutely nullifies this statute. It is clear from all the authorities, "that when an act is to be done within a given number of days from the date or day of the date or act done, the day of the date is excluded. Otherwise, an act to be done in one day must be done on the same day, and as there is no fraction of a day, such a stipulation must create an obligation to do it instanter." Inhabitants v. Inhabitants, 8 Cush. 374. It is a well settled rule in this State, and wherever the common-law rule prevails, that fractions of a day are not counted in the service of process or pleadings, or other legal documents. Kimm v. Osgood, 19 Mo. 60; Shaffer v. Detie, 191 Mo. 387; Ball v. Mander, 19 How. Pr. (N. Y.) 468; In re Puglisi, 230 F. 189; Portland Bank v. Maine Bank, 11 Mass. 205; Freeman on Judgments, sec. 370; Bruce v. Vogel, 38 Mo. 104; United States v. Lumber Co., 142 F. 432; National Bank v. Burkhardt, 100 U.S. 689. (4) A failure to serve the notice of an election contest for county office within the time prescribed by statute, and defect in the manner of service are waived by a general appearance of the contestee. It has been decided, that in a writ of prohibition the sufficiency of the petition cannot be challenged. State ex rel. v. Cave, 272 Mo. 653; State ex rel. v. Klein, 116 Mo. 268; Newcomb v. Railroad Co., 182 Mo. 707; Peter v. Railroad, 59 Mo. 408; Tower v. Moore, 52 Mo. 118; Pry v. Railroad, 73 Mo. 127; Orear v. Clough, 52 Mo. 55; Hill v. Barton, 194 Mo.App. 325.

BLAIR, J. Faris and Williams, JJ., concur; Graves, J., concurs in separate opinion; Walker, J., concurs in paragraphs 1, 2 and 3, and in the opinion of Graves, J.; Woodson, J., dissents in an opinion in which Bond, C. J., concurs.

OPINION

In Banc

Prohibition.

BLAIR J.

Relator seeks to prohibit the Circuit Court of Jackson County from proceeding further in an election contest. November 5, 1918 relator and respondent Welch were opposing candidates for Presiding Judge of the County Court of Jackson County. The official count was completed and, as announced on November 11th, showed the election of relator by several thousand votes. November 27th Welch filed in the circuit clerk's office at Kansas City a notice of contest, which was delivered to the sheriff for service on the same day. The sheriff made return that he had "made diligent search for and failed to find the said Miles Bulger in Jackson County, Missouri, up to and including two o'clock p. m. of November 30, 1918, and made diligent search for and failed to find any member of the family of said Miles Bulger, over the age of fifteen years, at his usual place of abode in Jackson County, Missouri, up to and including two o'clock p. m. of November 30, 1918," and on the same day, at the same hour, the sheriff posted a copy of the notice in the office of the circuit clerk at Kansas City. On December 20, 1918, Welch filed an application for an order to open the ballot boxes. About December 30, 1918, relator filed a motion which recited that the appearance "is for the purpose of this motion only." The first four grounds directly charged a lack of service of the notice of contest. The fifth charged that the court was without jurisdiction to hear and determine the contest "for the reason that the pretended notice of contest given by said contestant is based upon alleged objections to the qualifications of voters, and the names of none of said voters are stated in said notice, and the alleged objections are not specified." The sixth ground was that the court had no jurisdiction, because the term at Kansas City was not the first term held in Jackson County fifteen days after the official count; that the contest should have been filed at Independence. The other grounds were that the notice was (7) not legally sufficient, and (8) had not been so filed that any contest was pending. This motion was withdrawn, and another filed January 6, 1919. The first four and the sixth grounds were the same as in the first motion. The fifth ground was as follows: "Said court is without jurisdiction to make said order for the reason that it is not empowered so to do in Article 6 of Chapter 43, Revised Statutes 1909." The court overruled this motion and a like motion to quash, for like reasons, a notice to take deposition. On January 10, 1919, the court...