State v. Southern

• Decision Date: 14 June 1919
• Docket Number: No. 21319.,21319.
• Parties: STATE ex rel. BULGER v. SOUTHERN, Judge, et al.
• Court: Missouri Supreme Court

214 S.W. 100

278 Mo. 610

STATE ex rel. BULGER v. SOUTHERN, Judge, et al.

No. 21319.

Supreme Court of Missouri, in Banc.

June 14, 1919.

Original petition by the State, on relation of Miles Bulger, for a writ of prohibition against the Honorable Allen C. Southern, Judge of the Circuit Court of Jackson County, Missouri, at Kansas City, and of the Assignment Division thereof, and another. Preliminary rule made absolute.

H. S. Julian, T. A. J. Mastin, and A. L. Cooper, all of Kansas City, for petitioner.

O. H. Dean and Watson, Gage & Watson, all of Kansas City, for respondents.

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, Mo., up to and including 2 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 15 years, at his usual place of abode in Jackson county, Mo., up to and including 2 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 15 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, R. S. Mo. 1909."

The court overruled this motion and a like motion to quash, for like reasons, a notice to take depositions. On January 10, 1919, the court sustained the application of Welch. Relator, on the same day, applied here, and a preliminary rule in prohibition was issued.

I. It is argued there is no act regulating the course of the election commissioners in making a recount, and therefore no such recount can be had in Kansas City. Section 6143, R. S. 1909, contains the following:

"Provided, that if any contest of the election of any officer voted for at such election, * * * shall be pending * * * the said ballots shall not be destroyed until such contest * * * be finally determined. In all cases of contested elections, the parties contesting the same shall have the right to have said ballots opened and counted, and to have all errors of the judges in counting or refusing to count any ballot corrected by the court or body trying such contest."

This section applies to Kansas City. Section 5922, It. S. 1909, provides that —

"The powers and duties herein given to and imposed upon the clerks * * * of the several counties shall be exercised in reference to St. Louis and Kansas City, and to any other city hereafter having a registration of voters, by the board of election commissioners of such city."

This section includes all cities within the class at the time and all which might thereafter come into that class. It is applicable to contested elections. State ex rel. v. Klein, 116 Mo. loc. cit. 265 et seq., 22 S. W. 693. It is true the article relating to contests has been said to be a Code unto itself so far as concerns procedure in an election contest, but this does not argue that the usual rules of construction do not apply in determining whether particular provisions of other articles of the same chapter are, in effect, parts of the article relating to contests.

II. A term of court opened at Independence on December 2, 1918. It is contended the contest should have been filed at Independence, and that the Kansas City division had no jurisdiction. Section 5928, R. S. 1909, reads as follows:

"Every court authorized to determine contested elections shall hear and determine the same in a summary manner, without any formal pleading; and the contest shall be determined at the first term of such court that shall be held fifteen days after the official counting of the votes, and service of notice of contest, unless the same shall be continued by consent, or for good cause shown."

Section 5924, R. S. 1909, provides that no election of county officers shall be contested unless notice of such contest shall be given the opposite party within 20 days after the votes shall have been officially counted.

Prior to 1879 (section 57, p. 67, R. S. 1865), the clause, "and service of notice of contest," did not appear in the statute. The cases of Castello v. Court, 28 Mo. 259, and Adcock v. Lecompt, 66 Mo. loc. cit. 42, 43, upon which relator relies, were decided under the old statute. Under that statute the contest was triable at the first term held "fifteen days after the official counting of the votes." It seems to have been held that this provision applied whether or not there would be left 20 days for service. Then came the amendment inserting the clause quoted. Than those of the amendment words could not well be more apt to change the former rule. The triability of the contest at a particular term of court was made to depend upon two things, i. e., that the term began 15 days (1) after the official count, and (2) after the service of notice of contest. The question in Montgomery v. Dormer, 181 Mo. loc. cit. 14, 79 S. W. 913, and State ex rel. v. Evans, 184 Mo. loc. cit. 640, 641, 83 S. W. 447, was whether an adjourned term filled the statutory description of a "term" of court. Those decisions are not applicable to this case.

III. There was no service of the notice of contest. The statute (section 5924, R. S. 1909) provides that—

"No election of any * * * county * * * officers, 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 must be served "by delivering a copy thereof to the contestee or by leaving such copy at his usual place of abode, with some member of his family over the age of fifteen years; or, if neither such contestee nor his family can be found in the county, and service cannot be had as aforesaid, it shall be a sufficient service of such notice for the contestant to post up a copy thereof in the office of the clerk of the court wherein the contest is to be heard." The official count was completed and the result announced November 11, 1918. The statute (section 8057, R. S. 1909) prescribes the applicable rule for computing time as follows:

"Fourth, the time within which an act is to be done shall be computed by excluding the first day and including the last, if the last day be Sunday it shall be excluded."

December 1, 1918, fell on Sunday. Had it been any other day of the week, it would have been the last day for service under the statute. Being Sunday, the statute requires it to be excluded. It is at this point a difference of opinion arises. Respondent contends that when it is excluded Saturday, November 30th, became the last day for service. Respondent thus seeks to exclude Sunday, December 1st, from the time for service. This loses sight of the language and purpose of the statute. What the statute lays down is a rule for computing the time within which an act is to be done. The words "Sunday shall be excluded" means it shall be excluded from the computation, not from the time within which the act shall be done. Excluding Sunday, December 1, 1918, from the computation, leaves Monday, December 2d, as the last day upon which service could have been made. The construction contended for by respondent was given this statute by this court at the January term, 1870. Patrick v. Faulke, 45 Mo. 312. At the March term, 1870 (Bank v. Williams, 46 Mo. loc. cit. 19), as is pointed out in Jordan v. Railroad. 92 Mo. App. loc. cit. 85, the Patrick Case was "virtually overruled." In Keys v. Keys, 217 Mo. loc. cit. 65, 116 S. W. 537, in an opinion by Graves, J., this view of the Court of Appeals is approved and abundant other authorities cited. In Walker v. Sundermeyer, 175 S. W. loc. cit. 187, in an opinion by Roy, C., Keys v. Keys was approved and followed. There are other decisions in point announcing the same rule. The statute is not fairly susceptible of any other construction. State ex rel. v. McElhinney, 199 Mo. loc. cit. 80, 97 S. W. 159, is relied upon by respondent. It is to be observed that the court was not deciding the point now in issue. The statement there made of the rule did not affect the decision in that case. The fact that Sunday was excluded answered the argument the court was examining, and no occasion arose to discriminate between the rule now contended for...