The State ex rel. Sale v. McElhinney
| Decision Date | 23 October 1906 |
| Citation | 97 S.W. 159,199 Mo. 67 |
| Parties | THE STATE ex rel. SALE, Judge, v. McELHINNEY, Judge of Circuit Court of Thirteenth Judicial Circuit, et al |
| Court | Missouri Supreme Court |
Peremptory writ denied.
David Goldsmith, Jos. W. Jamison and W. Frank Carter for relator.
(1) Under the decisions of this court in State ex rel. v Spencer, 164 Mo. 23, and State ex rel. v Spencer, 166 Mo. 279, it is settled that it was incumbent upon the contestant to give the notice required by section 7057 of the Revised Statutes with respect to the contest proceeding, and that the failure of the contestant to give such notice constitutes a jurisdictional defect warranting the issue of the writ of prohibition sued for in this action. The contestant undertook to give this notice with respect to the filing of the contest, but the notice which he gave fails to comply with essential requirements. The statute required the notice of contest to be filed in the office of the clerk of the circuit court of the city of St Louis (R. S. 1899, sec. 7062); the notice of contest, however, did not state that the petition would be filed in that office. Indeed, it was indefinite both as to the specification of the place and time of the filing of the petition, and too uncertain in these respects to answer the purpose of any notice. As to the time of filing, it stated that the petition would be filed ten days after the date of its service and within forty days after the date of the election; and as to the place of filing, it stated that it would be filed "in the circuit court of the city of St. Louis, and also with the Honorable J. W. McElhinney, judge of the circuit court of the Thirteenth Judicial Circuit for the State of Missouri . . . and with such other qualified circuit judge, if any there be, whose residence is nearer than that of Judge McElhinney." Section 7057 requires the notice to state the time and place of presentation; and it follows that the time and place must be definitely specified. It is doubtful whether a notice stating that the petition would be filed ten days after the service of the notice, and within forty days after the election, specifies time with sufficient clearness, even when only one day answers both requirements, that is, is ten days after the service of the notice within forty days after the election? It seems that the party notified should not be called upon to make calculations of this kind; and, therefore, that while such a notice would be definite as to time in the sense that that is certain which can be made certain, still it does not suffice for the purpose of practical notification. However, in this case, the time was uncertain because there were two days which answered the specification, that is, which were ten days after the service of the notice and within forty days after the election, namely, December 17th and December 18th, 1904. It is true that December 18th was a Sunday, but it was not beyond the realm of possibility for the contestant to file his petition on a Sunday. The notice states that the petition would be filed in the circuit court of the city of St. Louis, with Judge McElhinney and also with any other judge whose residence might be nearer than that of Judge McElhinney. Certainly the petition could have been filed with either Judge McElhinney or any such other judge on a Sunday, and, if the designation of the circuit court as the place of filing is to be treated as meaning that the petition was to be filed in the office of the clerk, then, since the petition could have been filed in the office of the clerk on a Sunday, it was also possible to comply with the notice in this respect on that day. Indeed, even if the filing was to be made strictly in the circuit court of the city of St. Louis, that is, while the court, or one of its subdivisions, was in session, it could not at the date of the service of the notice have been said to be impossible for the contestant to file his petition in court on December 18th, since the circuit court is composed both of civil and criminal divisions, and either division may, as a matter of possibility, be in session on a Sunday. [R. S. 1899, sec. 1615.] What we have said seems to us to necessarily lead to the conclusion that the notice in question was uncertain and insufficient in its specification of the time of the filing of the petition; but it was also inadequate as to the place of the filing. The statute requires the petition to be filed in the office of the clerk of the circuit court. The notice stated that it would be filed in the circuit court with Judge McElhinney and also with any nearer judge, if there was one. None of these designations constitutes a designation of the proper place. The only one which will be claimed as such a designation is that which states that the petition would be filed in the circuit court. But a notice that a petition will be filed in court is not equivalent to a notice that it will be filed in the office of the clerk of the court, especially when there are, as there were in this case, eleven subdivisions of that court sitting in different parts of the city. National Docks, etc., Company v. United New Jersey, etc., Co., 52 N.J.Eq. 336. Moreover, the notice stated that the petition would be filed in the circuit court and with Judge McElhinney, and with any other judge, if there was one, whose residence was nearer. It thus specifies at least two different places for the filing of the petition, and in that respect was uncertain. The authorities with regard to service of notice for the taking of depositions are analogous. With respect thereto it has been held that a notice, which states that the depositions would be taken on two or more successive days, is deficient for uncertainty in point of time. Benton v. Craig, 2 Mo. 198; Collins v. Richart, 14 Bush. 621; Uhle v. Burnham, 44 F. 729; Carmalt v. Post, 8 Watts 406; and Humphries v. McCraw, 9 Ark. 91. Also that, when the statute requires the notice to state before whom the depositions are to be taken, a notice that they will be taken before one of two magistrates will not suffice. Clough v. Bowman, 15 N.H. 504. And that a notice for the taking of depositions "at the court house in the city of New Orleans, in the State of Louisiana," does not adequately designate the place, when several courts are held in the building mentioned. Harris v. Hill, 7 Ark. 452. (2) The contestant cannot succeed in his present contest, because he cannot in this proceeding assail or question the vote in favor of Mr. Rule, nor the plurality of Mr. Rule's vote over his own returned by the election commissioners. It is clear that the contestant cannot succeed in his election contest without establishing that this canvass was incorrect, both in declaring the vote in favor of the contestee to have been greater than his own, and in declaring the vote in favor of Mr. Rule to have been greater than his own. The mere fact that Mr. Rule did not contest the election of the contestee does not entitle the contestant to the office, even if the contestant's right is superior to that of the contestee. The contestant cannot succeed without proof that he was elected, for which it is essential that he should have received the highest vote of any of the candidates other than the four whose election is conceded. Sheridan v. St. Louis, 183 Mo. 25. But the contestant cannot, in his contest proceeding, establish by a recount that the Board of Election Commissioners erred in returning the vote in favor of Mr. Rule as greater than his own. To do this a recount of the votes cast for Mr. Rule would be necessary, since no comparison could be made without it; and such recount cannot be made for several reasons, namely: 1. Because it is not ordered by the writ, whose enforcement is sought to be prohibited; 2. because the petition of contest does not assail the vote in favor of Mr. Rule, or its plurality over that in favor of the contestant; 3. Because Mr. Rule is not a party to the contest proceeding. The statute speaks throughout of the contestant and contestee as the parties to the proceeding. The term "contestee" should, however, be held to be used in a generic and not in a particular sense, and therefore to include all parties whose rights are assailed by the contestant. That construction is required for a beneficial and fair administration of the law. It would be permissible at common law. Escheman's Appeal, 74 Pa. St. 47; Endlich on Interpretation of Statutes, sec. 38, p. 48; 2 Lewis's Sutherland on Statutory Construction, sec. 374, p. 717. In our State it is authorized by express statutory provision. R. S. 1899, sec. 4158; Cook v. Redman, 45 Mo.App. 397.
Thomas J. Rowe and W. E. Fisse for respondents.
(1) It is admitted that the petition was actually filed in the office of the clerk of the circuit court. It is also admitted that the contestee filed in the circuit court of the city of St. Louis an answer to the petition of the relator. It also clearly appears from the record in this case that no election contest proceeding between the parties is going on elsewhere than in the circuit court of the city of St. Louis. The expressions, filing in court, and filing with the clerk of the court, are identical in meaning. No paper can be filed in court except it be delivered to the clerk of the court, and be by him received to be kept on file, and, conversely, every paper filed with the clerk of a court is thereby filed in court. This is especially true of filings in the circuit court of the city of St. Louis. Consideration of the provisions of the statute with respect to what it is that a contestant is required to file, and consideration, also, of the effect which is by the statute given to this act of filing, enforces the conclusion that the object of any filing is to...
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