State ex rel. Penrose v. Killoren

• Decision Date: 08 June 1945
• Docket Number: 39371
• Parties: State of Missouri ex rel. Ione Penrose, Relator, v. William H. Killoren, Judge of the Circuit Court of the City of St. Louis, and Jesse W. Barrett, William J. Blesse, A. Sydney Johnston and Alphonse G. Eberle, Members of the Board of Election Commissioners for the City of St. Louis, Missouri
• Court: Missouri Supreme Court

188 S.W.2d 1

354 Mo. 22

State of Missouri ex rel. Ione Penrose, Relator, v. William H. Killoren, Judge of the Circuit Court of the City of St. Louis, and Jesse W. Barrett, William J. Blesse, A. Sydney Johnston and Alphonse G. Eberle, Members of the Board of Election Commissioners for the City of St. Louis, Missouri

No. 39371

Supreme Court of Missouri

June 8, 1945

Original Proceeding in Prohibition.

RULE MADE ABSOLUTE IN PART AND DISCHARGED IN PART.

Rule made absolute in part and discharged in part.

Harry N. Soffer and Joseph Nessenfeld for relator.

(1) The service of the notice of contest was insufficient to confer jurisdiction upon the circuit court over the election contest or the person of relator. The notice serves the two-fold purpose of a petition and a writ, inasmuch as no other summons or process is provided for. State ex rel. Wells v. Hough, 193 Mo. 615, 91 S.W. 905; Hale v Stimson, 198 Mo. 134, 95 S.W. 885; State ex rel Woodson v. Robinson, 270 Mo. 212, 192 S.W. 1001. (2) The notice is insufficient as a writ because it does not give contestee any notice as to the term of court at which the election is to be contested or the time at which contestee is required to appear to defend against the charges. Such information is required in order to conform to due process. Ramsey v. Huck, 267 Mo. 333, 184 S.W. 966; State ex rel. Wells v. Hough, 193 Mo. 615, 91 S.W. 905; State ex rel. Brady v. Evans, 184 Mo. 632, 83 S.W 447; Adcock v. Le Compt, 66 Mo. 40. (3) The statute provides that no election shall be contested unless notice shall be given to the opposite party within 20 days after the official count. The so-called notice given relator below is no notice at all because it fails to state when the contest will be brought or determined. The circuit court is without jurisdiction where the notice required by the statute has not been served upon contestee within the time provided. State ex rel. Hancock v. Spencer, 166 Mo. 279, 65 S.W. 984; State ex rel. Brown v. Stewart, 313 Mo. 1, 281 S.W. 768; State ex rel. Woodson v. Robinson, 270 Mo. 212, 192 S.W. 1001; Ramsey v. Huck, 267 Mo. 333, 184 S.W. 966; Sec. 11632, R.S. 1939. (4) The statute governing election contests constitutes a code unto itself and compliance therewith is necessary in order that the circuit court have jurisdiction. Armontrout v. Bohon, 349 Mo. 667, 162 S.W.2d 867; State ex rel. Hancock v. Spencer, 166 Mo. 279, 65 S.W. 984. (5) The order made by the respondent judge and which the election commissioners will enforce authorizes the disclosure of the vote of every person who cast his ballot at the election for committeewoman. It is so broad and sweeping as to violate the secrecy of the ballot protected by the Constitution and therefore is in excess of the jurisdiction of the court. No exposure of the vote of any elector is proper unless absolutely necessary, pursuant to allegations of fraud made in good faith. No such necessity appears in this case. Gantt v. Brown, 238 Mo. 560, 142 S.W. 422; Phelps v. Fenix, 345 Mo. 440, 134 S.W.2d 84; State ex rel. Funkhouser v. Spencer, 164 Mo. 23, 63 S.W. 1112; Art. VIII, Sec. 3, Mo. Constitution.

Tom R. R. Ely and George L. Stemmler, City Counselor, for respondents.

(1) The circuit court had jurisdiction over the subject matter and the person of the contestee. The contestee, relator here, entered her appearance in the election contest, and the circuit court determined from the facts before it, that it had jurisdiction, which was the province of the circuit court. State v. Shields, 141 S.W. 585; State ex rel. v. Shelton, 142 S.W. 417; State v. Johnson, 239 S.W. 844; Keirsey v. Calvird, 191 S.W. 1079. (2) The contestee entered her appearance by filing two memorandums to that effect, by accepting service on the order to show cause and by moving for a cost deposit, which waived any defect in the notice of contest. State ex rel. Tighe v. Brown, 23 S.W.2d 1092; State ex rel. Newell v. Cave, 199 S.W. 1014; State ex rel. v. Spencer, 164 Mo. 48, 63 S.W. 1118; State ex rel. v. Oliver, 163 Mo. 679, 64 S.W. 128. (3) The order made by respondent judge authorizing removal of stickers from the ballots was proper, constitutional and did not exceed the jurisdiction of the court. Gantt v. Brown, 238 Mo. 560, 142 S.W. 422.

Tipton, J. Westhues and Barrett, CC., concur.

OPINION

TIPTON

This is an original proceeding in prohibition to prohibit respondents from further exercise of jurisdiction of a purported election contest involving the office of Republican Committeewoman for the Eighteenth Ward of the City of St. Louis, Missouri, wherein Naomi Hughes Oldham is contestant and the relator is contestee.

At the primary election held on August 1, 1944, an election was held for the office of Republican Committeewoman for the Eighteenth Ward of the City of St. Louis. There were three candidates for that office. Their names and the votes received by each were Ione Penrose, 1,501 votes, Naomi Hughes Oldham, 1,023 votes, and Sarah H. Oldham, 396 votes. Ione Penrose was declared elected to the office, a certificate of election was duly issued to her, and she duly qualified as Republican Committeewoman of that ward.

On August 23, 1944, Naomi Hughes Oldham caused to be delivered to relator an instrument entitled: "Notice of Election Contest for the Office of Republican Committeewoman of the Eighteenth Ward of the City of St. Louis, Missouri." This paper was entitled in the Circuit Court of the City of St. Louis, Missouri, was addressed to Mrs. Ione Penrose, Contestee, and stated as follows:

"I, Mrs. Naomi Hughes Oldham, hereinafter referred to as Contestant, do hereby notify you, Mrs. Ione Penrose, hereinafter referred to as Contestee, of my intention to contest your election to the office of Republican Committeewoman of the Eighteenth Ward of the City of St. Louis, Missouri, which you now hold, and that said contest will be filed in the Circuit Court of the City of St. Louis, Missouri, and you are hereby notified of the facts hereinafter set out, upon which I intend to rely for grounds of said contest."

The notice stated various grounds for the election contest, which will later be discussed in this opinion. The notice then stated that "the undersigned, Naomi Hughes Oldham, will in due time make application to the Circuit Court of the City of St. Louis, Missouri, for the issuance of a writ directed to the Board of Election Commissioners of said City commanding said Board . . ." (Italics ours.)

The relator first contends that the service of the notice of contest was insufficient to confer jurisdiction upon the circuit court over the election contest or over the person of the relator.

Section 11632, R.S. Mo. 1939, provides ". . . no election . . . shall be contested unless notice of such contest be given to the opposite party within twenty days after the votes shall have been officially counted; the notice shall specify the grounds upon which the contestant intends to rely, . . . and the notice shall be served fifteen days before the term of court at which the election shall be contested, . . ."

It is the relator's contention that the contestant wholly failed to give any notice to her of the term of court at which the election would be contested, and, therefore, the circuit court was without jurisdiction to try the cause. The notice did not state the term at which the contest would be filed, but did state it would be filed "in due time."

Election contests are purely statutory, and the notice of an election contest as provided in Section 11632, supra, serves a double purpose. The notice of contest takes the place of a petition in an ordinary suit and the service of the notice upon the contestee fills the office of a summons in an ordinary suit. State ex rel. Wells v. Hough, 193 Mo. 615, 91 S.W. 905; Hale v. Stimson, 198 Mo. 134, 95 S.W. 885; State ex rel. Brown v. Stewart, 313 Mo. 1, 281 S.W. 768.

It is to be noted that the above statute requires that the notice of contest shall be served fifteen days before the term of the court at which the election shall be contested. The relator's position is that the contestee must be notified of the term of court at which her election shall be contested, in order that she may be apprised of the time at which she is called upon to appear and defend herself in the circuit court; otherwise, she is denied due process of law.

The notice in the instant case said "in due time" but failed to state the term of court at which the same would be filed. That part of the notice filled the office of a summons, and, if defective, it failed to give the circuit court jurisdiction over the person of the relator. There is no contention by the relator that some of the grounds stated in the notice were not sufficient to sustain an order of the court for a recount. Therefore, the question before us on this point is, did the court have jurisdiction over the person of the relator? Respondents contend that the relator entered her appearance, and, therefore, the circuit court had jurisdiction of the person of relator. If so, it is not necessary to decide if the phrase "in due time" is a substantial compliance with the statute.

On several occasions, we have held that in election contest cases, if the contestee enters his or her appearance, it waived a defective notice, if the defect in the notice went to that part of it that brought the contestee into court. State ex rel. Young v. Oliver et al., 163 Mo. 679, 64 S.W. 128; State ex rel. Folk v. Spencer, 164 Mo. 48, 63 S.W. 1118; State ex rel. Sale v. McElhinney, 199 Mo. 67, 97 S.W. 159; State ex rel. Tighe v. Brown, 224 Mo. 844, 23 S.W. 2d 1092.

We think the relator entered her appearance, for the reason that on September 21, 1944, the relator moved that the...