Whitney v. Blackburn

• Decision Date: 03 May 1889
• Citation: 21 P. 874,17 Or. 564
• Parties: WHITNEY v. BLACKBURN.
• Court: Oregon Supreme Court

21 P. 874

17 Or. 564

WHITNEY v. BLACKBURN.

Supreme Court of Oregon

May 3, 1889

Appeal from circuit court, Linn county.

(Syllabus by the court)

The intention of the contested election laws is to furnish a summary remedy, and to secure a speedy trial, that the title to the office in dispute may be determined before the official term expires in whole or in large part, and that the will of the people may not be defeated in the choice of their officers.

In proceedings of this kind, the notice of contes is the foundation of the suit, and performs the double office of a summons and complaint, and should contain the title of the cause, specifying the name of the court and the parties to the contest, and must be served and filed within 30 days.

Service of process upon a legal holiday is irregular, and may be pleaded in abatement or set aside on motion; but a notice of contest, like a summons, is not technically "process," but is more in the nature of a mere notice, informing the defendant that an action has been commenced against him, and that he is required to answer it within a specified time.

"Stating the cause of such contest briefly" is stating briefly the facts or combination of facts which give rise to the right of contest, and this necessarily implies that such fact shall be stated sufficiently plain as to advise the defendant of the "cause" for which his election is contested.

As the object of the notice is to inform the other party of the substance of the facts relied upon to defeat his claim certainty is required, but not technical precision of averment; and when the words used therein, taken in their ordinary sense, fairly serve this purpose, it is sufficient.

While it is the duty of courts to disregard mere technical rules or defects, and to liberally construe the statute of contested elections, that the rights of the people may be preserved and that no protection may be afforded to fraud, yet he who undertakes to contest the right of another to an office to which such other has been declared elected, by a tribunal authorized by the people, ought to have some well-defined "cause," and to be able to state it with sufficient certainty as to notify and inform the other party of the substance of the facts upon which he relies to defeat his title and to authorize the court to make the inquiry.

J.J Whitney, appellant, pro se.

D.R.N. Blackburn, respondent, pro se.

LORD J.

This was a proceeding begun under title 4, c. 14, §§ 2544-2548, Code Or., to contest the right of the defendant to the office of county judge of Linn county, to which he was declared elected by the board of canvassers. The election was held on the 4th day of June, 1888, and the notice was served on the 4th day of July, 1888, by the sheriff of that county, but the notice of such contest was not filed in court until the 23d day of August, 1888, and the next regular term of the court, beginning on the 22d day of October, 1888, was the time named in the notice for hearing such contest. On the first day of such term the defendant filed a motion to dismiss the same for the following reasons: (1) The court has not obtained jurisdiction of said contest or of the person of respondent. (2) Said notice is not entitled in any court. (3) It is not entitled in any proceeding, nor are there any parties thereto. (4) It has not been served on respondent in the manner and within the time prescribed by law. (5) No notice of contest has been legally served on respondent. (6) Said pretended service is illegal. (7) Said pretended notice, and the pretended service thereof, were not filed in this court within the time prescribed by law. (8) No complaint or other paper has been filed which respondent could be called upon to answer. The court sustained the motion, and dismissed the notice of contest. It appears that no leave was asked to amend, or to serve an amended notice, presumably for the reason that the plaintiff considered the ruling of the court as error which he would be able to establish on appeal.

Our statute provides as follows: "Any person wishing to contest an election of any person to any county, district, township, or precinct office may give notice in writing, to the person whose election he intends to contest, that his election will be contested, stating the cause of such contest briefly, within thirty days from the time said person shall claim to have been elected." Code Or. § 2544. It will be noted that the provision is silent as to the time when the notice of contest shall be filed. The defendant contends that the notice must not only be served, but must also be filed, within 30 days. It was not filed until the 23d day of August, nearly 50 days thereafter. By reference to the cases decided in this court, the practice has been to file the notice within 30 days, and such undoubtedly has been the construction given to the statute by the profession. In Minnesota there was a like statute, and from which it is supposed our statute was taken, although it may have been from some other state, and the only construction which the courts of that state has ever given to the provision (section 2544) just cited which has been brought to our observation is found in Whallon v. Bancroft, 4 Minn. 110, (Gil. 70,) wherein FLANDRAU, J., said: "This proceeding is instituted by the service of a notice by the party desiring to contest, upon the party in possession, within thirty days after the election." No mention is made when the notice must be filed, yet certainly it must be done within such time as will afford a speedy trial and carry into effect the will of the people. The "proceeding is instituted"--that is, begun--by service of notice of contest, but it is not pending in court until filed. In a proceeding of this kind, the notice serves the double purpose of a summons and complaint. A petition or complaint, as soon as filed, is pending, ( Clindenin v. Allen, 4 N.H. 387;) and the word "pending" implies that the cause is in court. Thomas v. Hopkins, 2 Browne, (Pa.) 146.

Until filed, there was no contest pending in the court, but there was notice that the plaintiff intended to bring the defendant before the court at a time stated therein, for the trial of the allegations contained in the notice of contest. That the notice must be filed before that time, as specified, is not disputed, but the contention is that the true construction of the provision, alike supported by analogy and the manifest object of the law, requires that the notice must be filed within 30 days. At common law the original writ contained a general description of the declaration, and by practice in some of the states the declaration was fully set forth in the writ which issued out of the court, properly attested, and was returnable to it. It was a mandatory precept, issued by the authority of and in the name of the sovereign or state, for the purpose of compelling the appearance of the defendant before the court to which it was returnable, that he may there make an answer to the plaintiff's complaint. Gould, Pl. 14. In some respects the notice of contest is like such writ, for it specifies or sets forth the causes of action, and serves the purpose of a summons to give notice of the intended contest; but it is not an official paper like the writ, issued out of the court, or attested by any of its officers, and it does not seem to me to be entitled to have the character of an official paper, or to be considered as a cause of action pending in court until such notice is filed. In many of the states, in proceedings of this nature, the statutes provide that the notice or petition, or other statement required, must be filed within the time prescribed; and by analogy to the practice under the Code, which requires the complaint to be filed, etc., more especially as the notice of contest serves the double purpose of a complaint and summons, it would seem to be the better practice, and more in conformity with its usages, to require the notice to be first filed, and then delivered to the proper officer for service, which would necessarily exact that it be filed within 30 days. But this has not been the uniform practice. Usually the notice is served first, or before filing, but the practice has been and the record of all the cases show that the notice has been filed within 30 days. So that, if this section is to be construed according to the practice under it, the analogies which sustain it, and the evident purpose of the law to secure a speedy trial, which necessarily demands promptness in commencing and prosecuting the proceedings, then the notice must be filed within 30 days. It certainly was not intended that a contestant should be permitted to cause a notice to be served on the party in possession, and then to pocket or hold back the notice for any length of time he may desire or suits his whim, or to afford him time to skirmish around to find evidence to support his allegations. There must be some limit within which this notice must be filed, and, if not within the time allowed to serve the notice, what limit? If he may keep the notice back 50 days, why not a year, or during the term?

In providing that the judge may sit at chambers, and try the contest, it becomes plain that the purpose of the law is to insure a speedy trial, to the end that the choice of the people, legally expressed, may prevail; and in recognition of this principle it is the practice of the courts, as it is their duty, "to speed the cause, so that the official term which is in dispute may not expire, either in whole or in large part, before the final determination is reached." Until the notice is filed, and the cause is pending in court, the defendant is helpless to do anything in the premises. But is he to be annoyed and...