State v. Schult

• Decision Date: 27 September 1940
• Docket Number: No. 6238.,6238.
• Citation: 143 S.W.2d 486
• Parties: STATE ex rel. BESS v. SCHULT, Judge.
• Court: Missouri Court of Appeals

143 S.W.2d 486

STATE ex rel. BESS v. SCHULT, Judge.

No. 6238.

Springfield Court of Appeals. Missouri.

September 27, 1940.

Original proceeding.

Proceeding by the State of Missouri, on the relation of John M. Bess, against Louis H. Schult, Judge of the Circuit Court of Stoddard County, to compel respondent to hear and determine a primary election contest.

Peremptory writ denied.

Ralph Wammack, of Bloomfield, and C. A. Powell, of Dexter, for relator.

George Munger and R. Kip Briney, both of Bloomfield, and Langdon R. Jones, of Kennett, for respondent.

TATLOW, Presiding Judge.

I. This is an original proceeding by mandamus to compel the respondent, as Judge of the Circuit Court of Stoddard County, to hear and determine a primary election contest. The relator was apparently defeated by 38 votes at the primary election held in Stoddard County, Missouri, on August 6, 1940. He contends that certain alleged fraud, misconduct and irregularity was practiced at the primary election and that many illegal votes were cast and that he, in fact, was nominated for said office, and not his opponent, one Alvin Smyth. Within five days after the canvassing board had certified its returns, the relator served upon the contestee the following notice:

"State of Missouri, County of Stoddard — ss.

"In the Circuit Court August Term, 1940.

"John M. Bess, Contestant, vs. Alvin Smyth, Contestee. Primary Election Contest.

"To Alvin Smyth, Contestee, Greetings:

"You are hereby notified that it is my intention to file in the office of the Clerk of the Circuit Court of Stoddard County, Missouri, on this date, and after the service of this notice upon you, a verified petition, a true and correct copy of which is attached hereto and made a part hereof.

"The purpose of the filing of this petition in said court is to challenge the correctness of the count and the returns for the office of Treasurer and Ex-Officio Collector of Stoddard County, Missouri, for the primary election held in Stoddard County, Missouri, on August 6, 1940. At said election you and I were the only candidates for said office on the Democratic ticket. According to the returns heretofore made by the canvassing board for said primary election, which made its return on the 9th day of August, 1940, you received for said office, 2,928 votes and I received 2,890 votes.

"At said primary election held on the 6th day of August, 1940 many illegal ballots were cast and counted for you, and fraud, misconduct and irregularity in the count of the ballots and in the returns thereof was committed in several of the election precincts in Stoddard County, Missouri. An itemized statement of the particulars of said alleged fraud, misconduct and irregularity and of the precincts where the same was committed and the names of the illegal voters who voted for you and whose vote was counted for you is set forth in detail in the attached petition, and all of which is made a part hereof.

"Dated this 14th day of August, 1940.

                                    "John M. Bess
                                    "J. M. Bess
                                          "Contestant"
                

Attached to said notice, and, as relator contends, made a part thereof, was a copy of the petition which the relator filed in the Circuit Court of Stoddard County, Missouri, on the same day, but after said notice was served. In said petition and copy thereof the particulars of the alleged fraud, etc., were set out in detail.

The said Alvin Smyth filed a motion to dismiss or plea to the jurisdiction of the Circuit Court of Stoddard County, Missouri, for the alleged reason that the notice proper did not state briefly the particulars of the alleged fraud, etc.

At a hearing on this motion and plea the relator contended that the copy of the petition which was attached to the notice and all of which was served upon the contestee constituted sufficient notice under the statute below. The contestee, Alvin Smyth, contended that the copy of the petition attached to the notice was not a part thereof, and, therefore, no notice was properly given to the said contestee. The special judge who heard this motion and plea sustained the motion and dismissed the cause. The relator contends that such notice was sufficient. That is the question and the only question involved in this case.

The controversy here is over the notice given Alvin Smyth, contestee. The notice we have above quoted. It is contended on the part of the respondent that the notice was not sufficient compliance with the provision of Section 1 of the act, Mo.St.Ann. § 10293a, p. 3737. The notice given had attached to it a copy of the petition which was later filed with the clerk of the circuit court.

It being contended by the respondent that the notice itself is not sufficient, and that the exhibit attached to the notice is no part of the notice even though it is so stated in the notice.

II. From the foregoing statement it will be seen that the sole question for determination is whether the notice provided for by the 1935 session acts of Missouri, page 263, Sec. 1, Mo.St.Ann. § 10293a, p. 3737, relating to primary election contest proceedings is a mere auxiliary paper required as a condition precedent to the contest of a nomination for office, to be pleaded in the petition and offered in evidence on the trial of the case, and governed by the authorities relating to notices, or whether it is the initial pleading in such a case which is required to state a cause of action and be judged by the rules pertaining to the sufficiency of the petition under our civil code. The correct answer to this question decides the case.

The relator contends that the paper is a mere notice and not a pleading and its sufficiency as a notice is to be determined by the decisions relating to notices, instead of by the decisions relating to pleadings, and that the exhibit referred to in the notice and made a part thereof is a part of the notice and is sufficient under the authorities. Berkshire Lumber Co. v. J. S. Chick Investment Co., 170 Mo.A. 1, loc. cit. 16, 155 S.W. 904, loc. cit. 909; Towner v. Remick, 19 Mo.App. 205; State ex rel. Conran v. Duncan, 333 Mo. 673, loc. cit. 690, 63 S.W. 2d 135, loc. cit. 143; Reid v. Kansas City, 195 Mo.App. 457, loc. cit. 462, 192 S.W. 1047, loc. cit. 1049; Ogle v. Kansas City, Mo.App., 242 S.W. 115; Harding v. City of St. Joseph, 222 Mo.App. 749, 7 S.W.2d 707; Costello v. Kansas City, 280 Mo. 576, loc. cit. 586, 219 S.W. 386, loc. cit. 389; 46 C.J. 553, Title "Notices", Sec. 53.

The respondent, on the other hand, contends that the notice is the initial pleading in the case and must state a complete cause of action, and that, as such pleading, it cannot be aided or assisted by an exhibit referred to therein and purported to be made a part thereof, under the uniform decisions of our Supreme Court. Merchants Exchange Bank v. Bankers Life Co., 231 Mo.App. 674, 104 S.W.2d 744, loc. cit. 746; Tollerton v. Woods, 230 Mo.App. 64, 89 S.W.2d 567, loc. cit. 568; National Bond & Investment Co. v. Miller, Mo.App., 76 S.W.2d 703, loc. cit. 705.

It will be seen that the parties do not disagree as to what the authorities hold, but the sole controversy is with reference to which line of authorities is applicable. Which contention is correct must be determined by the provisions of the act under which this proceeding is instituted. There are certain well settled rules established by our Supreme Court relating to this matter, which this court must observe in construing the act, and which it has no power to change even if it should desire to do so. They are:

(1) The act is somewhat a code unto itself and we cannot draw on our code of civil procedure to piece out its meaning except as the act may expressly or by implication direct us to do so.

(2) If the notice under the terms of the act performs the functions, or fills the office of a petition under the code of civil procedure — in other words, if the notice must state the cause of action — its sufficiency must be judged by the rules relating to the sufficiency of a petition under our code and not by the rules relating to an auxiliary notice. Hale v. Stimson, banc, 198 Mo. 134, loc. cit. 145, 146, 95 S.W. 885, loc. cit. 887; State ex rel. Wells v. Hough, 193 Mo. 615, 91 S.W. 905; State ex rel. Funkhouser v. Spencer, 164 Mo. 23, 63 S. W. 1112; Id., 166 Mo. 271, 65 S.W. 981.

(3) The rule is well settled in this state, in accordance with a long line of decisions, that the legislative intent must be determined from the statute as a whole, and all of its provisions harmonized if reasonably possible. Particular words may be given a broader or a more restricted meaning than the dictionary definition, and, in extreme cases, words may be stricken out of the statute in order to harmonize it. The reason of the law prevails over its letter, "for the letter killeth, the spirit maketh alive". The court should give a meaning to every word of the statute if it is reasonably possible to do so. On the other hand, the court cannot make a statute by judicial construction. An act of the legislature cannot be nullified for uncertainty if it is susceptible of any reasonable interpretation; if any reasonable or practical construction can be given to its language, mere difficulty in that respect will not render it nugatory. Ex parte Diemer v. Weiss, 343 Mo. 626, 122 S.W.2d 922.

These rules of construction are so well fortified by authorities in and out of this state that it is unnecessary to lengthen this opinion by citing them.

With these rules in mind we will endeavor to ascertain the meaning of the statute involved. The statute provides: "Any candidate whose name appeared upon the primary ballot of any political party at any primary election held in any of the election precincts or voting districts in this state who desires to challenge the correctness of the count and returns for the office for which he was a candidate, may at any time within five days after any canvassing...