The State ex rel. Woodson v. Robinson

• Decision Date: 26 February 1917
• Parties: THE STATE ex rel. STEPHEN C. WOODSON v. HARRIS ROBINSON, Judge of Circuit Court, and FRANCIS E. PARKER
• Court: Missouri Supreme Court

192 S.W. 1001

270 Mo. 212

THE STATE ex rel. STEPHEN C. WOODSON v. HARRIS ROBINSON, Judge of Circuit Court, and FRANCIS E. PARKER

Supreme Court of Missouri

February 26, 1917

Writ issued.

H. S Julian, E. H. Wright, T. A. J. Mastin, A. L. Cooper and J. G L. Harvey for relator.

(1) The requirements of the statute as to notice are jurisdictional and must be complied with. Election contest proceedings are everywhere regarded and treated as special statutory proceedings. State ex rel. v. Hough, 193 Mo. 643. They are not civil suits. Castello v. Court, 28 Mo 277; State ex rel. v. Spencer, 166 Mo. 279; State ex rel. v. Hough, 193 Mo. 643. The courts inherently possess no jurisdiction of election contests and where the statutes confer such jurisdiction upon the courts they possess jurisdiction only as defined and limited by statute. Said jurisdiction is not general, but is special and restricted. 15 Cyc. 394. Accordingly it is uniformly held that in election contests statutory provisions in relation to time of notice are mandatory requirements, compliance with which is essential to the court's jurisdiction, and that if notice has not been given as required by statute the court has no jurisdiction, and must dismiss the proceedings. Castello v. Court, 28 Mo. 259; Wilson v. Lucas, 43 Mo. 290; Bowen v. Hixon, 45 Mo. 340; Higbee v. Ellison, 92 Mo. 13; Montgomery v. Dormer, 181 Mo. 5; 7 Ency. Pl. & Pr., 390; 15 Cyc. 400. (2) The statutory requirement that the notice be served within a prescribed time is not in the nature of a statute of limitations, for the reason that the requirement does not affect merely the remedy, that is to say the manner of enforcing a legal right, but the requirement is a part of the right itself which the statute creates and makes conditional, the condition being that the notice be served within the specified time. And, therefore, the right does not exist unless the condition is performed. A mere limitation is a defense to be taken advantage of, or not, as the defendant may please, but where a statute creates a new right and makes the right depend upon the performance of a condition, performance of the condition is the basis of the right and a plaintiff, who asserts the right, must both allege and prove performance of the condition. Barker v. Railroad, 91 Mo. 86; McIntosh v. Railroad, 103 Mo. 131; Matthieson v. Railroad, 219 Mo. 549; Chandler v. Railroad, 251 Mo. 600. (3) A notice of contest, therefore, must show on its face when the official count of votes was completed in order that it may appear whether service of the notice was made within the statutory period. Crisler v. Morrison, 57 Miss. 791. (4) The attempted service of process was void and of no effect, for the reason that the party attempting to make service was not an officer and there is no authority in law for anyone who is not an officer to serve original process. Ross v. Fuller, 12 Vt. 265. Where you have constructive or substituted service the statute must be strictly and accurately followed. The contestant alone was empowered to post up the notice. The statute does not allow or permit it to be done by an agent, servant or by an attorney. Sec. 5924, R. S. 1909; Myers v. McRay, 114 Mo. 382; Quigley v. Bank, 80 Mo. 289; Charles v. Morrow, 99 Mo. 638; Bank v. Suman, 79 Mo. 531; Steward v. Stringer, 41 Mo. 400. Where the statute specifically prescribes the character and manner of service, it is strictly construed. Hyde v. Goldsby, 25 Mo. 34; Charless v. Mornig, 1 Mo. 537; Bland v. Jameson, 3 Mo. 52; Smith v. Rawlins, 25 Mo. 408; St. Louis v. Goebel, 32 Mo. 259; Huett v. Weatherby, 57 Mo. 376. (5) The notice of contest should be quashed because it fails to specify the grounds upon which contestant intends to rely, and though it attacks the qualifications of many voters it fails to state any of their names and the objections to them. It has been held that the statute relating to contested elections is a code unto itself, and that the code of civil procedure does not apply. State ex rel. v. Spencer, 166 Mo. 279; State ex rel. v. Hough, 193 Mo. 615. (6) Contestee neither did nor could waive these jurisdictional objections by filing his counter notice of contest. Keller v. Chapman, 34 Cal. 640; State ex rel. v. Spencer, 166 Mo. 286.

J. M. Johnson, Park & Brown, George A. Neal and Clinton A. Welsh for respondents.

(1) The circuit court of Jackson County has jurisdiction of the subject-matter of an election contest for the office of judge of the county court of Jackson County. Sec. 5924, R. S. 1909; State ex rel. v. Hough, 193 Mo. 651. (2) Notice of contest was given by respondent Parker within twenty days after the votes had been officially counted. Secs. 5924, 6150, R. S. 1909; Bowen v. Hixon, 45 Mo. 340; 3 Cyc. 408; Barnes v. Gottschalk, 3 Mo.App. 120. (3) The notice of contest designated and specified the proper term of court. Secs. 5924, 5928, R. S. 1909; State ex rel. v. Evans, 184 Mo. 632; State ex rel. v. Hough, 193 Mo. 647. (4) By filing motions in the nature of a demurrer and especially by filing counter notice of contest and cross charges in the nature of an answer and cross petition, petitioner waived any insufficiency of the notice in point of time or manner of service to give the court jurisdiction over his person. In re Ford, 157 Mo.App. 156; Thomasson v. Insurance Co., 217 Mo. 485; State ex rel. v. Oliver, 163 Mo. 679; 3 Cyc. 504; Bankers Life Assn. v. Shelton, 94 Mo.App. 634; 1 Corpus Juris, 37, 42; State v. Rombauer, 140 Mo. 121; Rippstein v. Insurance Co., 57 Mo. 86; Bank v. Griffith, 192 Mo.App. 452; State ex rel. v. Spencer, 164 Mo. 48; State ex rel. v. McElhinney, 199 Mo. 67. (5) The notice of contest states good and sufficient grounds for contest under the statutes and decisions of this court. Moffatt v. Montgomery, 68 Mo. 162; Gumm v. Hubbard, 97 Mo. 311; Sone v. Williams, 130 Mo. 530; State ex rel. v. Evans, 184 Mo. 632.

GRAVES, C. J. Woodson, J., not sitting.

OPINION

In Banc.

Prohibition.

GRAVES C. J.

This is an original action in prohibition. At the November election, 1916, the relator, Stephen C. Woodson, and the respondent, Francis E. Parker, were opposing candidates for the office of county judge of the western district of Jackson County, Missouri. This district was co-extensive with the municipality of Kansas City, Missouri, and therefore the Board of Election Commissioners of said city had full control of the returns from such election for said office. In the brief it is stated that Woodson received some 3000 more votes that his opponent Parker, but for the question involved herein this is not a material fact. It would only bear upon the good faith of the contest, a matter urged, but which we deem immaterial. Respondent's brief denies a majority so large, and avers such majority to be 700. Suffice it to say that Woodson got the certificate of election, and Parker has attempted to contest his election. The respondent Judge Robinson had fully indicated his purpose of proceeding with the contest case, when relator Woodson applied here for our writ of prohibition. In due course our preliminary rule in prohibition was granted and to this rule return was duly made by respondent. Later we permitted an amendment, and this was met by subsequent return. The facts stated in the return were met by proper reply, and counsel for both parties, with commendable promptness, have agreed upon the exact facts of the case. The stipulated facts are:

"It is hereby stipulated and agreed by and between petitioner and respondents in the above entitled cause, through their respective attorneys, that the following may be taken and considered by this court as a statement of facts in this controversy:

"This is a contest over the office of Judge of the County Court of Jackson County, Missouri, for the western district of said county. The boundaries of said district within which candidates for said office are voted for are co-extensive with the corporate limits of the city of Kansas City, Missouri. Petitioner Woodson was the Democratic candidate and respondent Parker the Republican candidate for said office at the general election held on November 7, 1916.

"The judges and clerks of election for each precinct in the various wards within said city counted the votes cast at said election on November 7, 1916, at the close of the polls and filled out a sheet known as the 'Tally Sheet,' which sheet showed the total votes counted by said judges and clerks for each candidate in the respective precincts of the various wards in said city. This tally sheet and other records were delivered to the election commissioners by said judges and clerks on November 7th and 8th, 1916. The Board of Election Commissioners of said city, pursuant to the provisions of section 6149, Revised Statutes 1909, began to make their canvass of said returns. First, they took the tally sheets as returned to them by said judges and clerks and called the totals as shown on said tally sheets to clerks in the office. The said clerks were furnished with large sheets of paper containing in proper columns the names of each person running for office and a column for the votes of each candidate for each precinct in said city. When the totals of the precincts were called from the tally sheets, the clerks placed the number so called in the proper column until all the precincts of a ward were recorded. Then the totals of the precincts so recorded were footed up showing the total of each candidate for the entire ward. The total votes of the wards were footed up as above, and marked down in pencil on Saturday morning, November 11, 1916. On Saturday, November 11, 1916, the election commissioners opened the envelopes containing the absentee votes pursuant to Session Laws of 1913, page 323, and...