State ex rel. Sale v. McElhinney

GANTT, J. This is an application for an original writ of prohibition to issue out of this court, prohibiting Judge McElhinney from taking further cognizance and jurisdiction of an election contest begun by William Zachritz, Esq., against Judge Moses N. Sale for the office of judge of the circuit of the Eighth Judicial Circuit, which comprises the city of St. Louis. A provisional writ was issued out of this court upon the application, made returnable on the 23d of January, 1906, and duly served upon Judge McElhinney and the members of the Board of Election Commissioners and the secretary of said board, and upon the contestant, William Zachritz. On the return day of the rule, returns were filed by the several defendants named in the writ, and thereupon the relator filed a reply, and fifty days was awarded to the respective counsel to file their briefs, and an agreed statement of facts was filed by the respective counsel in the cause. It is sufficient for the purpose of this opinion to state that the following facts are admitted: At the general election held on — 76 — November 8, 19Ó4, five judges of the circuit court of the city of St. Lotus were elected, there being five Republican candidates and five Democratic candidates. It is conceded that four of the Republican candidates, to-wit, 'Judges Fisher, Kinsey, Reynolds and Withrow, were elected, and that they duly received certificates of election, and have entered upon the duties of their offices; also that in canvass of the votes by the Election Commissioners, Judge Moses N. Sale, who was a Democratic candidate, was found and declared to have received 54,489 votes, Mr. Virgil Rule, also one of the Democratic candidates, 53,986 votes, Mr. William Zachritz, a Republican candidate, 53,123 votes, and the remaining three Democratic candidates, to-wit, William Christy Bryan, 53,106 votes, James R. Kinealy, 53,056, and John A. Blevins, 53,027 votes. On December 17, 1904, Mr. William Zachritz filed in the office of the circuit clerk of the city of St. Louis, a petition of contest; and subsequently, on the — day of December, 1905, and at the December term, 1905, of the said circuit court, an order was made for a recount of votes for said office of judge of the circuit court. The present proceeding is one for a writ of prohibition to prevent the enforcement of that order. While the petition for prohibition states many grounds as inducements to the making of a judgment in prohibiting, the brief and argument submitted by the relator, Judge Sale, in this cause, is based upon two propositions only, namely: first, that the notice given by the contestant, Mr. Zachritz, of his intention to file the contest proceeding, was insufficient to give the circuit court and Judge Mc-Elhinney jurisdiction to hear and determine said contest; and, secondly, that the petition of Mr. Zachritz was wholly insufficient in that he failed to join as a party defendant with said contestee, Virgil Rule, who was a candidate for the office of circuit judge at the election of November 8, 1904, and who, according to — 77 — the official return of that election, received a larger vote than the contestant, although he fell short of receiving such a vote as entitled him to receive a certificate of election. I. On December 7,1904, Mr. Zachritz delivered to the relator, Judge Sale, the following notice of contest: “St. Louis, Mo., December 7, 1904. “Hon. Moses N. Sale: You are hereby notified that it is my intention to contest your election to the office of judge of the circuit court of the Eighth Judicial Circuit of the State of Missouri for the term of six years, beginning on the first Monday in the month of January, A. D. 1905, which office you claim, and to which office you have been declared elected and for which-you have received a certificate of election from the Board of Election Commissioners of the city of St. Louis pursuant to their canvass of the votes cast at the election lately held, to-wit, on the 8th day of November last. Pursuant to the provisions of the statute in such cases made and provided I now deliver to you a copy of the petition prepared by me for the purpose of contesting your election as aforesaid, in which petition I have set forth the points upon which I shall contest your election and the facts which I shall prove in support of such points, which said petition I shall, ten days after the service of this notice upon you, and within forty days after the date of the election above mentioned, file in the circuit court of the city of St. Louis, and also with Honorable John W. Mc-Elhinney, judge of the circuit court for the Thirteenth Judicial Circuit of the State of Missouri, the same being an adjoining judicial circuit to the Eighth Judicial Circuit aforesaid, the residence of the .Honorable John W. McElhinney, circuit judge as aforesaid, being the nearest to your place of residence of any circuit judge of any judicial circuit adjoining the said Eighth — 78 — Judicial Circuit, and with' such other qualified circuit judge if any there be whose residence is nearer than that of Judge McElhinney. You are further notified that having filed the said petition in the said circuit court, and also with the said Hon. John W. McElhinney or other circuit judge as aforesaid, I shall ask for all proper process in said proceeding and take further steps therein according to law. “W.‘ Zachritz.” The insufficiency of this notice is relied upon as the first ground for a writ of prohibition. The claim that it was insufficient was first made by motion of the contestee to dismiss the contest, the contestee appearing specially for that purpose only, and it was again made by the answer of the contestee. By section 7066, Revised Statutes 1899, the provisions of sections 7057 and 7058, 7059 and 7060; concerning contests and proceedings therein in the Supreme Court and before the judges thereof, shall be applicable to and shall govern contests for the office of circuit judge and proceedings therein in the circuit courts and before the judges thereof. By section 7057 it is provided: “The contestee shall be served with a copy of such petition, and a notice of the time and place of the presentation of the same, ten days before the same shall be presented.” In State ex rel. Folk v. Spencer, 164 Mo. 52, it was ruled that a contest of election for the office of circuit attorney is required to be conducted in all respects like a contest of election for judge of the circuit court, and that section 7057, supra, was applicable to such contests. In that case, it was said: 1 ‘ The ten days ’ notice of intention to file the petition, required by section 7057, has been held by this court to be. necessary to give the court jurisdiction of the person, and cases where such notice has not been given have been dismissed for such failure. [Castello v. St. Louis Circuit Court, 28 Mo. 259; Wilson — 79 — v. Lucas, 43 Mo. 293; Higbee v. Ellison, 92 Mo. 13.] ” The first objection urged against the notice given by the contestant Zachritz to the contestee Sale, on the 7th of December, 1904, is that it failed to state that the contestant’s petition would be filed in the office of the clerk of the circuit court as required by section 7062, Revised Statutes 1899. This contention is predicated upon the language of the notice given by contestant and hereinbefore set out, in which the contestee is notified that the contestant “shall, ten days after the service of this notice upon you and within forty days after the date of the election above mentioned, file in the circuit court of the city of St. Louis, said petition.” In other words, that a notice that the petition would be filed “in the circuit court” is not equivalent to filing “in the office of the clerk of the circuit court.” It is admitted that the petition was actually filed in the office of the clerk of the circuit court, and it is also admitted that the contestee filed an answer in the circuit court to the petition of the contestant. Under our laws, each clerk of the circuit court is required to keep the records, papers, seal and property belonging to his office, and no paper or pleading is considered to be filed in court unless it be delivered to the clerk of the court. We hold that the expression “file in the circuit court” is equivalent to “file in the office of the clerk of the circuit court, ’ ’ and the two expressions are identical in meaning. The contestee could not have been misled to his hurt by the use of the words “file in the circuit court” instead of “in the office of the clerk thereof.” This point must be ruled against the relator herein. The mere fact that, the notice also stated that it would be filed with Judge McElhinney, and any nearer judge, if there was one, did not render the notice that it would be filed in’ the circuit court bad. But such — 80 — additional matter can and must be treated as unnecessary surplusage. Another complaint is that the notice was fatally defective in not sufficiently designating the time when the petition would be filed. The notice stated that the contestant would “ten days after the service of this notice upon you file in the circuit court, the petition, ’ ’ etc. The maxim of the law that that is certain which can be rendered certain, must govern in this case, and when the notice stated that the petition would be filed ten days after the notice was served and within forty days after the election we think it was sufficiently definite. The argument that there were two days after the service of the notice which fell within the description of a term “forty days after the election,” to-wit, December 17, 1904, which was Saturday, and December 18,1904, which was Sunday, is, we think, without merit.The period of forty days after the election ended on Sunday, December 18, 1904, and under the law, the Sunday must be excluded, and hence the petition was filed on December 17, 1904, the last day on which it could be filed, and this was ten days after the service of the notice. But there is a further answer to this whole contention on the part of the relator. It is admitted that as contestee he appeared in the circuit court and filed his answer to the merits of the case, which answer is in part a cross-complaint against the contestant, and having done so, he waived the failure to give the notice required by section 7057. [State ex rel. Folk v. Spencer, 164 Mo. l. c. 54, 55.] It follows, therefore, that in so far as the objections of the relator and pontestee to the jurisdiction of the circuit court are founded upon the insufficiency of the notice, it must be held that they are not well taken, and the circuit court had jurisdiction of the contest. II. But the relator asserts that the contestant can — 81 — not maintain this proceeding without joining 'first as party defendant, Mr. Virgil Rule, who was also a candidate for the office of circuit judge at the election in question, and who, according to the final return, received a larger vote than the contestant, although he fell short of receiving such a vote as: entitled him to receive a certificate of election. It is perfectly clear that as Mr. Rule was never awarded the office of judge of the circuit court, it is not possible, to contest with him for the position of something which he does not hold or have. Mr. Rule might have instituted an election contest against all or that part of those who were declared elected over him at this election, but Mr. Rule has not exercised that right and as to him the results of the election have become final. This court has often said that the remedy of prohibition is not a proper one to be applied for the mere settlement of pleadings, nor as a substitute for the ordinary methods of review by appeal or writ of error, but lies only to restrain excessive or wrongful exercise of jurisdiction. It appears that the circuit court has jurisdiction of the subject-matter of this case, and it also appears that there are before that court the necessary parties to fully determine the title of this office as between the contestant and the contestee, and 'that court will not be prohibited from exercising this lawful jurisdiction in the premises because a party not interested in the contest was not joined as a party in that proceeding. We agree fully with the relator that the contestant cannot succeed without proof that he was elected, and it is essential that he should have received the highest vote of any of the candidates, other than the four whose election is conceded, and this is the position of the contestant in the circuit court, as he alleged in his petition that he had received a-higher vote at the election than any of the persons who were candidates for the .circuit — 82 — judgeship, except the four whose election was admitted. By admitting that there were four persons who received an excess* of votes over himself, contestant is estopped from making any inquiry as to their titles to the office, and is restricted in his contest to relator who was awarded the only remaining place. But after all this complaint against the petition is simply an objection on the ground of non-joinder of parties defendant, an objection which does not go to the jurisdiction of the court, but is one to be disposed of by the circuit court and subject to be reviewed in this court by appeal or writ of error, but not by a writ of prohibition. Our conclusion is that the preliminary rule in prohibition was improvidently granted and it is therefore quashed and the petition for prohibition denied. Brace, G. J., Burgess, Valliamb, Fox and Lamm, JJ., concur; Graves, not having been a member of the court when this cause was submitted, takes no part in the decision.