Gantt v. Brown

GRAVES, J. Contestant and contestee were opposing candidates for the office of Judge of the Supreme Court of Missouri at the general election held in November, 19101. The proceeding was brought in this court under the statute which so authorizes such action. The petition and the answer need not be set out, either in full or in substance, for the questions now left in the case. Suffice it to say that issues of fraud and illegal voting were made by the pleadings. In the answer, and otherwise by motion, the jurisdiction of this court is challenged by contestee, and was so challenged from the beginning. Throughout the question has been urged and is now pressed. By proper order a commissioner was appointed to take testimony and report to this court. Also by proper order a recount of the votes in the city of St. Louis and St. Louis county was ordered, and the result of such recount together with the result of a comparison of the ballots with the poll books has been certified to this court by the election commissioners of the city of St. Louis, and the county clerk of St. Louis county. The evidence was taken and certified to this court by our commissioner, who also re — 297 — ported thereon his findings of fact for onr information, as he was by onr order directed to do. In this state of the ease the contestant died, and his death was suggested to the court. Oontestee then and before the argument of the case filed his motion to abate the case, which motion we took with the case. In the view we have of the law, there are but two questions we need -discuss, and these refer in no wise to the merits of the controversy. The questions are, (l).have we jurisdiction and (2) if so does the suit abate? Of these in their order. • I. Has this court jurisdiction of the cause? If not, nothing further need be said. We are of opinion that we have jurisdiction. This conclusion we reach from our present constitutional provisions, when interpreted in the light of their birth, growth and development. By the original Constitution of 1820 the judges of this court were appointed by the' Governor, vide, section 13, art. 5, of said Constitution. In this state of the case there was no election and hence no provision for a contest. Later, however, in 1850, the scheme was changed, and by section 12, art. 6, of the amendments of the said Constitution, such officers were made elective. By the same section it was provided ‘ ‘ and in case of a tie, or a contested election, between the candidates, the same shall be determined in the manner to be prescribed by law.” The italics are ours. Pursuant to this constitutional provision we had section 77 of chapter 59, Revised Statutes 1855, p. 709, which reads thus: “All contested elections for Judge of the Supreme Court, Superintendent of Common Schools, Secretary of State, Auditor of Public Accounts, State Treasurer, Attorney-General, or Register of Lands, shall.be decided by vote of the Senate.” This remained the scheme and the law until the adoption of the Constitution of 1875. Section 9 of article 8 of that Constitution reads: — 298 — “The trial and determination of contested elections of all public officers, whether State, judicial, municipal or local, except Governor and Lieutenant-Governor, shall be by the courts of law, or by one or more of the judges thereof. The General Assembly shall, by general law, designate the court or judge by whom the several classes of election contests shall be tried, and regulate the manner of trial and all matters incident thereto; but no such law, assigning jurisdiction or regulating its exercises, shall apply to any contest arising out of any election held before said law shall take effect.” Note the difference. The amendment to the Constitution in 1850; left it to the General Assembly to designate the body or forum before which the contest should be determined, and the General Assembly fixed the State Senate as the forum. In 1875; however, the constitutional provision took away a part of the legislative discretion, and said all contested election cases except Governor and Lieutenant-Governor must be determined “by the courts of law, or by one or more of the judges thereof.” This Constitution, however, left to the General Assembly the right to designate the particular court of law, which should determine the particular case, or rather class of cases. We have here specific constitutional power generally conferred upon all courts of law in this State to determine contested election cases. The term'“courts of law” as used in this section includes the Supreme Court. To my mind there is in this section the general grant of power to this and other courts of law to try such cases, and if in the mind of the General Assembly it was thought best to assign any class of election contest cases to this court, the power to hear and determine would have constitutional sanction. In 1877, two years later, and at a time when the constitutional provision, supra, was yet fresh in the minds of the people, the General Assembly amended the old law as to the forum where — 299 — such contests should be heard, and made such statute to read: “All contested elections for Judge of the Supreme Court, Superintendent of Public Schools, Secretary of State, State Auditor, State Treasurer, Attorney-General or Eegister of Lands, shall be heard and determined by the Supreme Court or any three judges thereof, in vacation: Provided, That no judge of said court who is a contestant or contestee in such election shall be permitted to hear and determine the same.” [Vide, Laws 1877, p. 248.] The law as thus amended in substance remains with us to-day. [Sec. 5951, R. S. 1909.] When the General Assembly thus assigned this class of cases to this court by legislative act, it amounted to a legislative construction of the meaning of section 9, article 8 of the Constitution of 1875. When the Governor signed such bill, thus making it a law, it amounted to an executive construction of the same constitutional provision. This legislative and executive construction is (as evidenced by their acts) that constitutional power was given this court to try such a case as we now have before us, by the provision of the Constitution, supra. In other words the Legislature construed the Constitution to mean that this court had the power to determine the case, if that body saw fit to burden the court with such cases. Legislative constructions are not binding upon the courts, but they are at least persuasive, and especially so when they occur so soon after the adoption of the instrument. At such time the discussion of the several constitutional provisions was fresh in mind. The reasons for changing the forum from the Senate to the courts were fresh in mind. The construction made at such time is more valuable as an aid to the courts. We are disposed to take the view that the legislative construction then given is the proper one. — 300 — Sections 2 and 3 of article 6, of the same Constitution read: “See., 2. The Supreme Court, except in cases otherwise directed by this Constitution, shall have appellate jurisdiction only, which shall be coextensive with the State, under the restrictions and limitations in this Constitution provided. ‘ ‘ Sec. 3. The Supreme Court shall have a general superintending control over all inferior courts. It shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari and other original remedial writs, and to hear and determine the same.’’ It is argued by contestee that under these sections our jurisdiction is purely appellate, except in “habeas corpus, mandamus, quo ivarranto, certiorari and other original remedial writs.” To this we do not agree. Section 2, quoted supra, says our jurisdiction is appellate only, ‘£ except in cases otherwise directed by this Constitution.” If we had no section 3, as quoted above, we would have no original jurisdiction in cases of the original writs mentioned therein. But by section 3, supra, it is £ 1 otherwise directed by this Constitution” that we have original jurisdiction in the cases mentioned in said section 3. But section 3, supra, is not the only place in “this Constitution” where it has been “ otherwise directed by this Constitution” as to our original jurisdiction. We have an “ otherwise direction” in section 9' of article 8, which gives this court, among other courts of law in this State, the right to hear and determine such election contest cases as we have before us now. To my mind section 9 of article 8 is as much an £ £ otherwise direction ’ ’ in the Constitution as is section 3 of article 6. Section 9 confers original jurisdiction in one class of cases, whilst section 3 confers original jurisdiction in other classes, but they each confer original jurisdiction.- They each modify the broad limitation found in section 2 of article 6, and the one as effectively modifies as does the other. We are — 301 — cited to the case of Vail v. Dinning, 44 Mo. 210, as ruling contra. The ruling in that case was well made. This case was prior to the Constitution of 1875, and at a time when there was no express constitutional provision empowering “the courts of'law” in this State to determine contest cases. To my mind the provisions of section 9 of article 8 of the Constitution of 1875', were suggested by the opinion in the Vail-Dinning case, supra. The construction given this section of the Constitution so soon thereafter by the Legislature strongly so indicates. We therefore rule that we have jurisdiction in this class of cases. II. Does the admitted death of Judge Gantt abate this action? We think so. We have ho statute in Missouri providing for the survival of such an action. The very nature of the office contested makes the action purely personal. The duties of such an office are such that they must be performed by the holder thereof and can not be delegated to another. In other words, the duties must be personally performed and are nondelegable. These things impress the suit as being one purely personal in character. No one has any interest in the office except the contending parties. Salary is a mere incident to' the office. [State ex rel. Evans v. Gordon, 245 Mo. 12.] And salary is not in a legal sense involved in this case. Salary might follow as a result of the case, and purely as an incident to the office, but not by force of the judgment itself to be rendered in .this case. That judgment is fully bounded by the terms of our statute. [Sec. 5925, R. S. 1909.] And it should also be remembered that in the United States the right to hold office is not a property right in the same sense as personal or real property. It is in no sense an incorporeal hereditament, as in some English offices. [Throop on Public Officers, chap. 2, sec. 16 et seq.] — 302 — In this country the right to hold office is purely statutory, and unless forbidden by constitutional edict, can be given and taken by the legislative will. Being purely statutory the modes and manner of acquiring it are likewise purely statutory, and it is to the statutes that we must go to determine a case of this character. However, the common law as to abatement may shed light. The common law rule is thus tersely stated in 1 Cyc., p. 47: “At common law a suit abated by the death of a party before trial or verdict. If the cause of action was one that did not survive, death put a final end to the suit. If the cause was one that survived or could survive, plaintiff or his personal representative was obliged to bring a new action against defendant or his personal representative.” This strict common law rule has been modified by statutes in the States generally, and provisions have been made for the revival of the pending action in the name of the parties having the right, by survivor, to further prosecute the ease. These statutes obviate the necessity of bringing a new suit by those to whom the action survived. Then we have statutes which make certain actions survive, which at the common law did not survive the death of the party. But as stated we have no statute in this State providing for the survival of an action like the one at bar. Nor is it an action which at common law survived. Let us test this case by the general rule. In 1 Cyc., p., 49, it is said: “As a general test an executor or administrator cannot come in and prosecute a suit unless he was in a condition to commence a like suit if it had not been begun by his testator or intestate. At common law, as a general rule, the qualities of assign-ability and survival are test's each of the other and are convertible terms. ’ ’ Applying these tests to the case at bar it is clear that it must abate. Had Judge Gantt died ten days after the election in 1910 and without bringing this action, was there any one who could have — 303 — brought it for him? The answer must be in the negative. If not there is no one who can be substituted for him now for the further prosecution of the case. And if we apply the. common law test of assignability we come out at the same point. There are some cases that the very nature of the case makes death the end of the case and this is one of them. For instance in a divorce proceeding death of necessity determines the case. In such case as to the marital relation death accomplishes just, what the party sought, i. e., a dissolution, of the marriage relation. So in the case at bar. Here the contestant sought the right to exercise the rights and privileges of a judge of this court. Such could not be exercised for him by another, so that death of necessity put an end to his ambitions in this direction. The case might be likened to a dowress, who in life sues for the admeasurement of her estate. If such dowress die, the further prosecution of such suit would be useless, because with her death was the death or falling in of her estate. So here the grim reaper has destroyed the power of contestant to occupy the office, and to enjoy the privileges, powers, duties and emoluments thereof. This to my mind is the reason of the situation. But going to our statutes we have a further and conclusive reason. As above indicated we have a statute which prescribes the judgment to be rendered in such a case. Section 5925, Revised Statutes 1909, reads: “In every case of a pending contested election, the person holding the certificate of election may give bond, qualify and take the office at the time specified by law, and exercise the duties thereof until the contest shall be decided; and if the contest is decided against him, the court or other tribunal deciding the same shall make an order for him to give up the office to the successful party in the contest, and deliver to him all books, records, papers, property and effects pertaining — 304 — to the office, and may enforce such order by attachment or other proper legal process.” Snch is the only judgment provided for by the law in cases of contest. It is not like a judgment in a quo warranto proceeding. It is a judgment peculiar to contest cases, and for the very good reason that such cases are in an independent class unto themselves. Death as fully precludes the entering of the judgment provided for in this statute as it precludes the admeasurement of the widow’s dower estate after her death. The statutory order we make, is that contestee surrender the office to contestant, and deliver to contestant all the paraphernalia of the office. -Death of the contestant forbids such an order or judgment, and as the action is one purely statutory and as there is no statutory provision for a different judgment, the case ex necessitate abates. The views we have expressed find full support in the case of Hargett v. Parrish, 114 Ala. 515. In that case Hargett contested the election of Parrish and was unsuccessful below. He appealed and pending the appeal Parrish died and the Governor appointed one Hall to succeed Parrish as sheriff. Motion was made to revive the case as against Hall, the successor of Parrish. In that State there was a statute providing that the death of contestant should not abate the suit, but the statute was silent as to the death of the contestee. Discussing the case, McClellan, J., said: “The proceeding being purely statutory, no pretense that there could be such revivor or substitution at common law being made, the order sought must find statutory authorization, or it cannot be granted. The statute providing for the contest itself provides that a contest does not abate by the death of the contestant, but contains no provision in respect of the death of the contestee. “Section 26001 of the Code provides that ‘all actions on contracts, express or implied, all personal — 305 — actions, except for injuries to the person or reputation, survive in favor of or against the personal representatives/ The present is not an action within the meaning of that section; and if it were, Hall is not the personal representative of the deceased Parrish. “Section 2603 of the Code is as follows: ‘No action abates by the death or other disability of the plaintiff or defendant, if the cause of action survive or continue ; but the same must, on motion, within eighteen months thereafter, be revived in the name of or against the legal representative of the deceased, his successor, or party in interest; or the death of such party may be suggested upon the.record, and the action proceed in the name of or against the survivor/ The contest of an election is not within this section, since it applies only to cases in which the cause of action survives, and the cause of action involved in such contest does not survive at common law, nor is it within either of the sections 2600, 2601 or 2602, which undertakes to declare what causes of action do survive, and all that survive, the death of parties; nor does the cause by the terms of the contest statute survive the death of the eontestee, as we have seen. ' “Having reference to mandamus, prohibition, cer- ■ tiorari and other remedial writs of a supervisory nature, section 3162 of the Code provides: ‘If any officer against whom such proceedings are had should die, or otherwise vacate his office, while the same are pending, whether on appeal or otherwise, the same may be revived against his successor in office, in the manner in this chapter provided/ The contestation of an election obviously is not a proceeding for mandamus, prohibition, certiorari, or other writ of a supervisory nature; it involves the issuance of no writ supervisory of the official acts of officers, to which alone the section last quoted has relation, and is not in form or substance supervisory of the action of any — 306 — officer or officers; tat is a mere adversary trial of the right of office between two parties, each of whom claims to have been elected thereto. “No other statute has been called to our attention, or exists which bears at all upon the question. As neither the common law nor any statute authorizes revivor against or the substitution of the name of Hall, as appellee in the case, the motion to that end must he denied. ’ ’ We have quoted at length from this opinion, because the statutes discussed are largely covering grounds covered by Missouri statutes. .In Missouri, however, our contest statute makes no provision whatever for a revivor, and in that respect is stronger against the claims of contestant’s counsel in this case than is the Alabama statute. Distinguished counsel for contestant urges a number of cases in support of his claim of survivor, which to my mind are not in point, tat which we discuss next. III. It is contended by the learned counsel who represented contestant in his lifetime, that contested election cases do not abate because the public has an interest in such cases. Counsel are not without what would at first glance appear to be authority for the position. They rely upon section 454 of McCrary on Elections (4 Ed.) and 7 Ency. Pl. & Prac., p. 393, and the cases supporting these texts. Section 454 of McCrary, reads: “A contested election case, whatever the form of the proceeding may be, is in its essence a proceeding in which the people— the constituency — are primarily and principally interested. It is not a suit for the adjudication and settlement of private rights simply. It follows that the parties to the record cannot, by stipulation or otherwise, discontinue or compromise a case of this character without the consent and approval of the court or tribunal trying it. Nor could such consent ever be — 307 — given, unless the court giving it is sufficiently advised to be able to say that it is for the interest of the public to do so.” And 7 Ency. Pl. & Prac., p. 395 reads:' “As a general rule it is apprehended that a contest once instituted cannot be discontinued by the contestant or petitioners, as the people have an interest in the result. ’ ’ At first blush it would appear that these texts would settle the question adverse to the claim of contestee and in favor of the position of contestant’s counsel. But unfortunately for jurisprudence.the later day text-boots are written from precedents rather than from principles, and the precedents are too often misconceived. God speed the day when the giants of the law will write a few texts covering principles, rather than misapplied precedents. The cases cited by the authors in support of these texts above quoted do not support the broad doctrine in such texts announced. What is said in the cases which in any way support the text was said in reference to peculiar statutory provisions, which made the language of the opinion justifiable in the case then in hand, but furnish no basis for the broad pronouncements of these text-writers. A review of these cases should be made in the interest of jurisprudence. We shall review those cited in support of section 454 of McCrary on Elections [4 Ed.] only, because the same line of cases furnishes the basis for the other author. McCrary cites Mann v. Cassidy, 1 Brewst. 43; People v. Holden, 28 Cal. 139; Kneass’s Case, 2 Pars. (Pa.), 570; and Collings’s Case, Bright. Elec. Cases, 513. In the case of Mann v. Cassidy, 1 Brewster, 11, the judges of the court of common pleas of the first judicial district of Pennsylvania (Philadelphia) did use this language: “But we are in no doubt as to the impropriety of recognizing theCdiscontinuance’ offered, as the case now stands. . Mr. Mann became a party to this pro — 308 — ceeding. He undertook to prove that great frauds had been perpetrated at the October election, and the language used by his counsel, Mr. Read, is that ‘the whole evidence exhibits the most palpable frauds on the ballot box. ’ “He claims thus to have'established much that he alleged to exist; and yet, because by an act of Assembly, which his counsel declares has given him all he claimed, he is .relieved from any further personal interest in the case, and has publicly withdrawn from it, it is asserted that by his simple ‘discontinuance’ he can relieve the court from all further duty of determining whether those ‘most palpable frauds’ have had any effect on the validity of the election. Certainly none would more truly rejoice to be relieved from the further consideration of this case than the court before whom it has ‘dragged its slow length along;’ but that relief can only be obtained by the conscientious discharge of the duty imposed upon us, not by avoiding it. If frauds have been proved, how can we omit to examine into their effect? Why was the court applied to? Not, certainly, to ascertain only Mr. Mann’s right to the office, for which Mr. Cassidy held the return. For this purpose the law has provided a writ of quo warranto. This is not such a proceeding. The question here is, not between two individuals only, but it is whether the voice of the people had been falsely and fraudulently misrepresented. It is a public question, not, as the counsel for Mr. Mann stated they considered it, that of a private individual contesting the seat for a public office. While, then, we cannot prevent the party who is satisfied from leaving the case, we cannot recognize any right or power remaining in him, after his departure, to further interfere in the case. He came in voluntarily, and he departs without hindrance. We think his power over the case departed with him. The discontinuance, therefore, cannot be recognized.” — 309 — This is the basis for the text quoted from Mc-Crary, and the court above mentioned is the authority. But let us go to the facts of the case. Mann and Cassidy were opposing candidates for district attorney, and Cassidy on the returns won. Under the statutes of Pennsylvania authorizing the proceeding twelve electors of the district broug’ht the proceeding charging that Cassidy had been fraudulently returned as duly elected district attorney. Mann was not one of the electors so proceeding. Upon the record he was not a party to the suit, but by his counsel he did participate in the taking of testimony. After the testimony was all taken, Mann, who was not a-party of record in the case, moved its discontinuance. It was upon this motion that the language above quoted was uttered. It may be, inasmuch as the statute of that State authorized electors or voters to challenge the validity of the election, that in that way the case became one between the public and the contestee, and the language of the case be thus fully justified, but it is not authority for the broad rule announced in McCrary. Nor is the case authority in this State, where a contested election case is one inter partes. It would be strange doctrine to Missouri to say that under our statutes the contestant cannot dismiss his case at any time before final submission. The next ease relied upon by the text is People ex rel. Budd v. Holden, 28 Cal. 123. Let us go to the facts. The contest was over the office of county judge. Budd and Holden were opposing candidates. Budd .claimed to have been elected, but Holden was returned as elected. Budd complained to the Attorney-General, who in the name of the people, i. e., the State, instituted the proceeding. Holden was ousted by the court nisi, and appealed. We have carefully searched the opinion in this case for support of the doctrine announced by McCrary. The only thing we find is this: — 310 — “It is first claimed by the appellant that the district court bad no jurisdiction in the premises, and that the only remedy in cases like the present is under the statute which prescribes the mode and manner of contesting elections. [Wood’s Digest, p. 380, sec. 51.] No proposition could be more untenable. It is true that the act providing the mode of contesting elections confers upon any elector of the proper county the right to contest, at,his option, the election of any person who has been declared duly elected to a public office,, to be exercised in and for such county. But this grant of power to the electors can in no way impair the right of the people, in their sovereign capacity, to inquire into the authority by which any person assumes to exercise the functions of a public office or franchise, and to remove him therefrom if it be made to appear that he is a usurper having no legal title thereto. The two remedies are distinct, the one belonging to the elector in his individual capacity as a power granted, and the other to the people in the right of their sovereignty. Title to office comes from the will of the people as expressed through the ballot box, and they have a prerogative right to enforce their will when it has been so expressed by.excluding usurpers and putting in power such as have been chosen by themselves. To that end they have authorized an action to be brought in the name of the Attorney-General, either upon his own suggestion or upon the complaint of a private party against any person who usurps, intrudes into, or unlawfully hcfids or exercises any public office, civil or military, or any franchise within this State. It matters not upon what number of individual persons a right analogous in its results when exercised may have been bestowed, for the power in question none the less remains in the people in their sovereign capacity. It has been shared with the elector, but not parted with altogether. Substantially the same point was — 311 — made in the case of People v. Jones, 20 Cal. 50, without success.” During the trial in the lower court some stipulations seem to have been entered into, and in discussing them the court further said: ‘ ‘ Moreover, it is very doubtful whether these stipulations were ever binding upon the people, who were the real plaintiffs in the case. They were not made by the Attorney-General by whom the suit was instituted, but only by the private counsel of the relator. Theoretically the people alone are interested in the determination of the controversy involved in this case, and no court would be justified in enforcing as against them a stipulation made by the relator or his counsel to their prejudice. The action is in no legal sense under the control of the relator. It was brought in the name of the people and to enforce their will as expressed through the ballot box and not merely to redress the wrongs or enforce the rights of the relator. [Searcy v. Grow, 15 Cal. 119.]” Not a thing else in this opinion aims at the doctrine announced in the text. What the California court did hold is that the particular case was one in the name of the people, and the people or State were not bound by a stipulation not signed by their representative, the Attorney-General. The opinion'further indicates that such contests can be maintained in two ways (1) by an elector, and (2) by the State through the Attorney-G-eneral, and further that if by the Attorney-General, it is yet an action by the State, although upon the information of an individual. It is clear that this case does not support the text in either book cited. We next reach Kneass’s Case, 2 Parsons, 559. This case comes from the Philadelphia court, as did the case of Mann v. Cassidy, supra. Like the Mann case it is a contest over the office of district attorney. Under the Pennsylvania law in force at the time, as indicated by the opinion, it was provided that an election might — 312 — be contested by not less than twenty electors. In Kneass’s Oase it is said that thirty-one instituted the proceeding. The big fight in the case was over amending the petition, and what was said was upon this matter. The court itself at page 571, thus states the matter for decision: ‘ ‘ Two questions then arise for deliberate consideration.- First. Will the court ever allow a petition in the case of a contested election to be amended? Second. Is the amendment now asked one that can be permitted by any established rules of law?’’ The court goes into the case law as to amendments, and does use this language: “Cases of this sort are more like the one under consideration than, perhaps, of any other kind. With these conclusive authorities, and many more which might be cited to the same point, if they are to have the least influence upon the judicial mind, I do not see how the present amendment can be refused, if we adhere to our previous ruling, that we will liken these petitions to other legal proceedings. “But in my opinion there is another ground on which the present application should be allowed, still stronger if possible. There are a number of specifications in which there is a direct charge of fraud, which if sustained by proof, are of the most flagrant kind; and had the petitioners averred that these alleged fraudulent acts would have changed the result, and how it would.be changed, it must be admitted this court would have had no hesitation in at once directing the proof to be taken. So soon as this omission is pointed out, the contestants propose to insert all in their petition which the respondent requires, to make it proper that an inquiry should be had. Therefore in our opinion., we ought now to permit the petition to be amended. The cause of public justice demands it. It is due to the people of the county, and it is due to the gentleman who holds the certificate; for I am sure he, yior no other high-minded, honorable man, would wish to hold — 313 — an office so important, except by the suffrages of a majority of the people, truly and fairly expressed. And we should do an injury to Mr. Kneass, as well as to the cause of public justice, if, in the exercise of a sound discretion, we refuse to open the doors of a judicial tribunal for a full inquiry into dharges so grave as those alleged in this petition, if it can be done consistently ivith the rules of law, and the practice in legal proceedings. That it can be, I think, has been abundantly shown by authority.” We have underlined the only things giving color to the broad rule announced by McCrary. Further discussing this matter of amendment in Kneass’s Case, at p. 576 the court said: “It has been contended that the amendment in the. form now offered cannot be allowed, inasmuch as there are more than thirty citizens who signed the original petition, and only twenty-one of them have signed a petition for the present amendment, although verified by the same persons who made the affidavit to the original petition. “This objection on no sound principle can be sustained. Suppose an election has been carried by the most abominable fraud — the act requires there should be twenty citizens of the county to sign a petition for the contest. Ten of those who were concerned in the fraud might unite with ten innocent individuals in the contest, and then appear and ask to withdraw, or to refuse to unite in an amendment clearly admissible, and thereby conceal the very fraud they had concocted and perpetrated. I concur with Judge Woodward in his able opinion, found in the 3d vol., L. J. 160, that the jurisdiction of the court had attached from the moment the petition was filed, and a few individuals, by withdrawing, should not shut out all inquiry. Here the number' have signed the petition to amend, which is required by the act, which is a sufficient answer to the objection; and even if they had not, we should never — 314 — suffer the course of public justice to be obstructed, because some choose to withdraw. Therefore, in our opinion, the amendment proposed should be filed, and be considered as forming a part of the original petition for the purpose of a future investigation of the case; and, therefore, the motion to quash is overruled, and testimony ordered to be-taken, and to be confined to those specifications which are not ordered to be stricken out, as indicated at the commencement of this opinion.” We have above quoted every vestige of the opinion bearing upon the rule under discussion. That it does not bear out the rule is evident. In this, like the Mann case, it must be borne in mind that the proceeding is one by electors, who in a sense might be said to be the public. Lastly we are cited to Collings’s Case, Brightly’s Leading Cases on Election, p. 503. The opinion is from another of the common pleas courts of Pennsylvania. The case stated is this: “This was a petition contesting the election of E. B. Collins to the office of clerk of the courts of Luzerne county, to which he had been returned as duly elected at the general election held on the 8th of October, 1861. The petition was filed on the 16th of November; and the respondent moved to quash, on the ground that the, petition had not been filed within ten days after the election, as required by law.” At page 513 the court used the language: “We repeat, that in no part of the act, relating to an office such as the present, is the defeated candidate looked upon as a party, or as liable, in any event, to costs, unless voluntarily assumed; the petitioners are complaining voters, acting in the pursuit of their own rights, for the honest purpose of purifying the ballot-box from fraud, are alone looked to as contestants, and in no event alone liable to costs. It is not regarded as the complaint of the candidate; he cannot be per — 315 — mitted to withdraw or in any way to control it. If the alleged fraud, upon being proved, would apparently change the result of the election, unless the people represented by the petitioners agree to it, an arrangement made between the different candidates, could not be used to defeat the contest; it may be abandoned and withdrawn, if no one will come forward to prosecute it, but the candidate cannot so control it. It is not the right of the individual alone who may be interested in the office, to defeat or set aside a fraudulent election; in him there may be a personal or pecuniary interest, but with the people there remains a public or moral right to act. ’ ’ The judge made an extended argument trying to show that the “ten days” mentioned in the statute meant ten days from the day of the election. The language we have quoted was used arguendo. It is at best a reiteration of the other constructions given to this old Pennsylvania statute of 1839'. It certainly cannot furnish a basis for the broad doctrine of the text in McCrary. We have gone at length into these cases, because they are the ones upon which the doctrine is bottomed. To my mind they furnish no foundation for a rule so broad and sweeping. To the last case Mr. Brightly adds some three foot notes all of interest, but one in particular. It reads: “A more fallacious argument was never penned; it only shows the judgment1 of an estimable, honest and learned judge can be warped by his party feeling, in a contested election case; and how unfit a depository of this delicate jurisdiction, is the judicial department, as organized in the United States. ’ ’ In addition to McCrary and the Ency. of Pl. & Prac. we are cited to two other cases that perhaps should be mentioned. First is the case of Snibley v. Palmtag, 127 Cal. 31. This was a contest over the office of county supervisor in California. We should bear in mind that under the law there as indicated in the 28 — 316 — Cal. supra, any elector might contest. The court says that'the fact that Snibley, who filed the petition, was the person receiving the next highest number of votes did not change the case so far as the question up was concerned. Upon trial nisi, it was adjudged that there was a tie vote, and therefore no election, and the certificate of election given to Palmtag was by decree can-celled. From this judgment Palmtag appealed to the Supreme Court. After appeal Snibley died. Palmtag contended the action abated, and moved the Supreme Court to remand the case with directions to the lower court to vacate the judgment and dismiss the action. This the court refused to do and upon the question said: “The contest is a special statutory proceeding, and it often happens in such cases that the Legislature has failed to anticipate and provide for all possible contingencies. Any elector may inaugurate the contest, and had Snibley not been the opposing candidate the same difficulty would have existed. And the trouble would have been the same if the court had found that Snibley had received a majority of the legal votes, or if the finding had been in favor of the contestee, and he had died after judgment. In either case it seems very hard if the survivor, against whom the judgment has been rendered, cannot appeal from it. “Where the cause of action one which would die with the person, still after judgment the action does not abate. It is then property, and goes to the estate of the successful party if he dies after judgment. The judgment may be attacked and set aside on appeal, but so long as it stands it is not affected by the death of either party. [Atlantic Dock Co. v. Mayor, 53 N. T. 64; Shafer v. Shafer, 30 Mich., 163; Danforth v. Danforth, 111 Ill.236.] “It is not correct to say that the estate of the deceased has no interest in the controversy. It is provided in section 1125 that if the proceeding be dis — 317 — missed for want of prosecution, or if the election he affirmed,‘ judgment must he rendered against the party contesting such election for cost.’ Having commenced the proceeding and prosecuted it to judgment, by which the contestee is deprived of an office to which he had been declared elected, neither he nor his estate could escape the responsibility he has assumed. Appellant has a right to his appeal, and there is a chance that the judgment may be reversed, and that upon a retrial the election will be affirmed. “The motion of the appellant is denied, but upon causing the representative of the estate of Snibley to be substituted the case will be heard.” The next is Taylor v. Beckham, 108 Ky. l. c. 291. This case is a consolidation of three cases. Two of the actions were by injunction against Beckham and others to restrain them ¡from acting in an official capacity, and one was hy Beckham himself asking that Taylor et al. be adjudged usurpers. The only thing at all applicable to this case is where the court uses this language: “As to the death of Goebel. The death of Goehel on February 3, did not affect the right of the appellee Beckham. If Goebel was elected Governor and Beckham, Lieutenant-Governor in November, Beckham, upon Goebel’s death on February 3, became entitled to the office of Governor, and had the right to continue the contest to secure what the Constitution guaranteed to him.” These cases do not meet the situation here. The California case rests upon the doctrine that, although a cause of action would abate before judgment, yet when such cause of action has been merged into a judgment it does not abate. That is familiar doctrine in Missouri, hut is not the cause before us. The Kentucky case rests on the doctrine that Bckham had a personal interest in the contest, in that he had fallen heir hy the law to the office. — 318 — It is clear to our mind that under the Missouri statutes this is a case which should he abated, and we hereby order and direct that this proceeding now abate. As a matter of law there is an actual cessation of the case, because there can be no substitution for the deceased contestant. To be fair to the contestee we suggest, however, that the merits of this controversy are covered by the two companion cases of Timmonds v. Kennish, and Gass v. Evans, decided at this term. All concur except Kennish and Brown, JJ., not sitting.