Whittier v. Village of Farmington
| Decision Date | 07 July 1911 |
| Docket Number | 17,228 - (251) |
| Citation | 131 N.W. 1079,115 Minn. 182 |
| Parties | CHARLES B. WHITTIER v. VILLAGE OF FARMINGTON and Others |
| Court | Minnesota Supreme Court |
Petition of contestant, Charles B. Whittier, to the district court for Dakota county for a recount of all the ballots cast at the village election of 1911 upon the question of the issue of liquor licenses, and for other relief. The motion of the village of Farmington to dismiss the contest so far as it was concerned was granted, Hodgson, J. From an order dismissing the contest, contestant appealed. From an order denying contestant's motion for an order ratifying the service of notice of contest, he appealed. Affirmed.
Election -- jurisdiction of court over contest.
The filing of a notice of appeal in proceedings to contest an election, pursuant to the provisions of chapter 59, Laws 1911, vests in the court jurisdiction of the contest, and the service of the notice upon the contestee, as well as the service of all other notices subsequent to filing the notice with the court, is subject to regulation and control, as to time and manner of service by the court.
Service of notice of contest.
Upon filing the notice of contest, the court may, upon application promptly made, make such order in reference to the service of the notice upon contestee, and the service of other notices as the circumstances presented justify, having regard to the command of the statute that the contest be brought to a speedy trial and termination.
Retroactive statute.
If the legislature has the power by retroactive or other legislation to revive a right once existing, but lost by reason of a failure to comply with statutory requirements essential to its preservation, the purpose to do so should clearly appear, and be not left to inference.
Retroactive statute -- application of act.
Chapter 59, Laws 1911, held not applicable to a contest of an election held prior to its enactment, which contest had not been perfected under the provisions of section 336, R.L. 1905, in consequence of which the court had no jurisdiction thereof at the time of the passage of the amended statute.
Second service of notice -- lack of jurisdiction.
The court, having no jurisdiction of the contest, had no authority under the new statute to order a reservice of the notice of contest upon the contestee; the right to serve the same having expired before the amendment of section 336, R.L. 1905, took effect.
A. E. Rietz and Wilson, Mercer, Swan, Ware & Stinchfield, for appellant.
Albert Schaller and Earl C. Wilmot, for respondent.
The question whether licenses for the sale of intoxicating liquors should be granted or refused was submitted to the electors at the annual village election held in and for the village of Farmington in March, 1911. The election officers reported, as a result of their canvass of the votes cast, 116 in favor and 114 against license. Whereupon, and within ten days after the declared result, a contest of the election was instituted by appellant herein. The notice of the contest was properly filed with the clerk of the district court as required by law. The notice was personally served upon all individuals named as contestees, the same being persons alleged to have illegally voted at the election, and upon the village recorder, as the representative of the municipality. But notice was not served upon the chief executive of the village, as required by section 336 and section 4107, R.L. 1905.
It was contended in the court below that the notice was in fact served upon the chief executive of the village, but the court found otherwise, and the record will not permit of a review of that finding. And, as the record stands, the case must be disposed of upon the theory that the notice of contest was not served upon that official within the time prescribed by law, or at all.
Thereafter contestant, upon notice, applied to the court for an order appointing referees to recount the ballots cast at the election. Contestee the village of Farmington appeared specially by counsel and objected to further proceedings in the contest upon the ground that the court had no jurisdiction thereof, because the notice had not been properly served. The court held that the evidence of service then before the court was sufficient, overruled the objection, and appointed the referees. Counsel for contestee took no further part in the proceedings at that time, and did not participate in the selection of the referees.
Thereafter counsel for contestee moved the court, by the usual notice in writing, accompanied by an order to show cause, to dismiss the contest, on the ground that the court had no jurisdiction for the reason that the municipality had not been served with notice as required by law. Contestant then moved the court, proceeding under the provisions of chapter 59, p. 78, Laws 1911, for an order fixing the time and manner for the reservice of the notice of contest. Both motions came on to be heard at the same time. Upon the question whether the notice had been served upon the chief executive officer of the village, witnesses were sworn and gave evidence. At the conclusion of the hearing the court denied contestant's motion for leave to reserve the notice, and granted the motion of contestee to dismiss the contest for want of jurisdiction, thus holding that the notice had not been properly served, from the consequences of which contestant could not, under the law, be relieved. Contestant later moved the court to vacate the order dismissing the contest, which was denied. Contestant appealed from each of these orders.
The record presents a single question, namely, whether contestant was entitled to an order providing for a new service of the notice of contest. The finding of the trial court that the notice was not served upon the chief executive officer of the village cannot be reviewed, for the reason that the evidence upon which the court acted is not before us. It was not returned, either as a part of a settled case or a bill of exceptions. The finding, therefore, must stand. Nor is the contention that contestee appeared generally in the proceeding, and therefore waived service of the notice sustained by the record. So far as we can gather by the record, the appearance of contestee was special, and for the purpose only of objecting to the jurisdiction of the court. The resistance of contestant's motion for leave to reserve the notice of...
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