State ex rel. Bulger v. Southern

BLAIR, J. Relator seeks to prohibit the Circuit Court of Jackson County from proceeding further in an election contest. November 5, 1918,. relator and respondent Welch were opposing candidates for Presiding Judge of the County Court of Jackson County. The official count was completed and, as announced on November 11th, showed the election of relator by several thousand votes. November 27th Welch filed in the circuit clerk’s office at Kansas. City a notice of contest, which was delivered to the sheriff for service on the same day. 'The sheriff made return that he had “made diligent search for and failed to find the said Miles Bulger in Jackson County, Missouri, up to and including two o’clock p. m. of November 30, 1918, and made diligent- search for and failed to find any member of the family of said Miles Bulger, over the age of fifteen years, at his usual place of abode in Jackson County, Missouri, up to and including two o’clock p. m. of [616] November 30, 1918,” and on the same day, at the same hour, the sheriff posted a copy of the notice in the office of the circuit clerk at Kansas City. On December 20,-1918, Welch filed an application for an order to open the -ballot boxes. About December 30, 1918, relator filed a motion which recited that the, appearance “is for the purpose of this . motion only.” The first four grounds directly' charged a lack of service of the notice of contest. The fifth charged that the court was without jurisdiction to hear and determine the contest “for the réason that the pretended1 notice of contest given by said contestant is based upon alleged objections to the qualifications of voters, and the names of none of said voters are stated in ‘said notice, and the alleged objections are not specified.” The sixth ground was that the court had no jurisdiction, because the term at Kansas City was not the first term held in Jackson County fifteen days after the official count; that the contest should have been filed at Independence. The other grounds were that the notice was (7) not legally sufficient, and (8) had not been so filed that any contest was pending. This motion was withdrawn, and another filed January 6, 1919. The first four and the -sixth grounds were the same as in the first motion. The fifth ground was as follows: “Said court is without jurisdiction to make said order for the reason that it is not empowered so to do in Article 6 of Chapter 43, Revised Statutes 1909.” The court overruled this motion and a like motion to quash, for like reasons, a notice to take deposition. On January 10, 1919, the court sustained the application of Welsh. Relator, on the same day, applied here, and a preliminary rule in prohibition was issued. [617] Recount in Cities. [616] I. It is argued there is no act regulating the course of the election commissioners in making a recount -and, therefore1, no such recount, can be had in Kansas City. Section 6143, Revised Statutes 1909, contains the fol617 following: “Provided, that if any contest of the election of any officer voted for at such election . . . shall he pending . . . the ballots shall not be destroyed until such contest . . . be finally determined. In all cases of contested elections, the parties contesting the same shall have the right to have said ballots opened and counted, and to have all errors of the judges in counting or refusing to count any ballot corrected by the court or body trying such contest.” This section applies to Kansas City. Section 5922, Revised Statutes 1909, provides that “the powers and duties herein given to and imposed upon the clerks of the several counties shall be éxercised in reference to St. Louis and Kansas City, and to any other city hereafter having registration of voters, by the board of election commissioners of such city.” This section includes all cities within the class at the time and all which might thereafter come into that class. It is applicable to contested elections. [State ex rel. v. Klein, 116 Mo. l. c. 265, et seq.] It is true the article relating to contests has been said to be a code unto itself so far as concerns procedure in an election contest, but this does not argue that the usual rules of construction do not apply in determining whether particular provisions of other articles of the same chapter are, in effect, parts of the article relating to contests. . TiiTi^ini PTimi II. A term of court opened at Independence on December 2, 1918. It is contended the contest should have been filed at Independence and that the Kansas City division had no jurisdiction. Section 5928, Revised Statutes 1909, reads as follows: “Every court ' v authorized to determine contested elections shall hear and determine the same in a summary manner, without any formal pleading; and the contest shall be determined at the first term of such court that shall be held fifteen days after the official counting of the votes, and service of notice of contest, unless the same shall be continued by consent, or for good cause shown.” [618] Section 5924, Revised Statutes 1909, provides that no election of county officers shall be contested unless notice of such contest shall be given the opposite party within ■ twenty days after the votes shall have been officially counted. Prior to 1879 (Sec. 57, p. 67, G-. S. 1865) the clause “and service of notice of contest” did not appear in the statute. The cases of Castello v. Court, 28 Mo. 259, and Adcock v. Lecompt, 66 Mo. l. c. 42, 43, upon which relator relies, were decided under the old statute. Under that statute the contest was triable at the first term held “fifteen days after the official counting of the votes.” ' It seems to have been held that this provision applied whether or not there would be left twenty days for. service. Then came the amendment inserting the clause quoted. Than those of the amendment, words could not well be more apt to change the former rule. The triability of the contest at a particular term of court was made to depend upon two things, i. e. that the term began fifteen days (1) after the official count, and (2) after the service of notice pf contest. The question in Montgomery v. Dormer, 181 Mo. l. c. 14, and State ex rel. v. Evans, 184 Mo. l. c. 640, 641, was whether an adjourned term filled the statutory description of a “term” of court. Those decisions are not applicable to this case. „„ Notice III. There was no service of the notice of contest. The statute (Sec. 5924, R. S. 1909) provides that “no election of any . . . county . . . officers shall be contested unless notice of such contest be given ° to the opposite party within twenty days after the votes shall have been officially counted.” The notice must be served “by delivering a copy thereof to the contestee, or by leaving such copy at his usual place of abode, with some member of his family over the age of fifteen years; or if neither such contestee nor his family can be found in the county, and service cannot be had as aforesaid, it shall be a sufficient service of such notice for the contestant to post up a copy thereof [619] in. the office of the clerk of the court wherein the contest is to be heard.” The official count was completed and the result announced November 11, 1918. The statute (Sec. 8057, R. S. 1909) prescribes the applicable rule for computing time as follows: “Fourth, the time within which an act is to be done shall be computed by excluding the first day_ and including the last, - if the last day be Sunday it shall be excluded.” December 1, 1918, fell-on Sunday. Had it been any other day of the week it would have been the last day for service under the statute. Being Sunday the statute requires it to be excluded. It is at this point a difference of opinion arises. Respondent contends that when it is excluded, Saturday, November 30th, became the last day for service. Respondent thus seeks to exclude Sunday, December 1st, from the time for service. This loses sight of the language and purpose of the statute. What the statute lays down is a rule for computing the time within which an act is to be done. The words “Sunday shall be excluded” means it shall be excluded from the computation, not from the time within which the act shall be done. Excluding Sunday, December 1, 1918, from the computation leaves Monday, December 2nd, as the last day upon which service could have been made. The construction contended for by respondent was given -this statute by this court at the January term, 1870. [Patrick v. Faulke, 45 Mo. 312.] At the March term, 1870 (Bank v. Williams, 46 Mo. l. c. 19), as is pointed out in Jordan v. Railroad, 92 Mo. App. l. c. 85, the Patrick case was.“virtually overruled.” In Keys v. Keys, 217 Mo. l. c. 65, in an opinion by Graves, J., this view of the Court of Appeals is approved and abundant other authorities cited. In Walker v. Sundermeyer, 175 S. W. l. c. 187, in an opinion by Roy, C., Keys v. Keys, was approved and followed. There are-other decisions in point announcing the same rule. The statute is not fairly susceptible of any other construction. State ex rel. v. McElhinney, 199 Mo. l. c. 80, is relied upon by respondent. It is to be observed that the court was not deciding the point now in issue. The [620] Statement there made of the rule did not affect the decision in that case. The fact that Sunday was excluded answered thé argument the court was examining, and no occasion arose to discriminate between the rule now contended for by respondent and that announced in the cases already cited. Applying the settled rule, the last day for personal service in the contest proceeding- was Monday, December 2, 1918. It is admitted the notice was posted at 2 p. m. Saturday, November 30th. No effort to secure personal service was made after that time. If thé officer could, two and a half days before the expiration of the time therefor, abandon all effort to secure personal service, the requirement therefor would tend to become merely perfunctory. The service of notice of contest is like the service of petition and summons. The return was premature and illegal (Lumber Co. v. McCabe, 220 Mo. l. c. 167,. et seq., and cases cited) and constituted no basis for constructive service. There was no service, -personal or constructive. Waiver IV. It is urged relator appeared in the contest proceeding and thereby waived the lack of service. It is Uled that an election contest is a special and statutory proceeding, not according to the course of the common law. From an early date it was held in such cases that notice in accordance with the statute was essential to jurisdiction. [Castello v. Court, 28 Mo. l. c. 275, 276; In re Wilson v. Lucas, 43 Mo. l. c. 293, 294; Bowen v. Hixon, 45 Mo. l. c. 344, 345; Ramsey v. Huck, 267 Mo. l. c. 338, 339, and cases cited; State ex rel. v. Robinson, 270 Mo. l. c. 222, 223, and authorities cited.] The statute (Section 5924, R. S. 1909) specifically provides that “no election of . . . any county officer shall he contested unless notice of such contest shall he given the opposite party within twenty days after the votes shall have been officially counted-.” This court has repeatedly held this provision is peremptory, as shown by the eases cited above. In State ex rel. Newell v. Cave, [621] 272 Mo. 653, it was held the contestee had waived'lack of service of notice by serving and filing and amending his counter, notice and moving to strike out parts of the notice, all before he challenged the jurisdiction for want of service, and that this waiver conferred jurisdiction. The dissenting opinion points out that this is a new rule in this State as applied to election contests for officers falling within Section 5924, Revised Statutes 1909. In an ordinary action an appearance solely to challenge jurisdiction for lack of service gives no jurisdiction of the person. [Huff v. Shephard, 58 Mo. l. c. 245, 246.] Whether, in such an action, an appearance is general or special is one of intent (Woodard v. Milling Co., 142 N. C. l. c. 102) and the intent is to be determined from the facts at the time. [Fisher v. Crowley, 57 W. Va. l. c. 323.] . The first motion filed by the contestee (relator here) was not based solely upon the ground that a copy of the notice of contest had not been delivered or posted in proper time. The fifth and seventh grounds challenged the legal sufficiency of the notice. The sixth ground charged, in effect, that the term of court at Kansas City .was one into which no notice could bring the contestee, and the eight ground was that no notice had been so filed that any contest was pending. The amended motion' contained a ground to the effect that the court had no jurisdiction under the article on contested elections. In an ordinary action combining other grounds, in the first instance, with an attack on the jurisdiction of the person, ordinarily constitutes a waiver of objections to service. [State ex rel. v. Grimm, 239 Mo. l. c. 171, et seq., and cases cited; Iddle v. Hamler Co., 132 La. l. c. 478; City Natl. Bank v. Walker, 130 La. l. c. 811; Crowell v. Galloway, 3 Neb. 215; Fitzgerald v. Fitzgerald, 137 U. S. 98; Crawford v. Foster, 84 Fed. l. c. 941; Kaw Life Assn. v. Lemke, 40 Kan. l. c. 145, and cases cited; Elliott’s Appellate Procedure, par. 678.] [622] section™ Contest. [621] Y. Is the same rule applicable, in all respects, to an election contest? Waiving any argument which depends [622] upon the principle announced in State ex rel. v. Robinson, supra, and the cases preceding it, the writer nevertheless thinks the question put should answered in the negative. In the first place, there is a distinction between the Newell case and this. There the jurisdiction was never questioned until long after contestee had filed his counter notice and amended counter notice and had invoked affirmative action of the court as well as moved to strike out parts of the notice on non-jurisdictional grounds. In this case the statute provides for a summary disposition of the proceeding and explicitly excludes formal pleadings. (a) The first four grounds clearly constituted no waiver, (b) The attack upon the legal sufficiency of the notice waived nothing unless we are to overrule a contrary holding acquiesced in by the Legislature for sixty years. Judge Lackland discussed the meaning of the statute in an identical case-, on the same' question of waiver, in his return in Gastello v. dou,rt, 28 Mo. 1. c. 265. That construction of the statute was approved in the opinion. The comment he made on the effect of counter notice need not be considered since Section 5921 is not, in that respect, like the section then under consideration. With respect to the effect of the motion in that case, Judge Lackland said it was “the object of the statute to give the notice a double operation, that , is, to bring the party into court and to set forth and advise the court of the grounds of contest; that the notice required by the statute seemed designed to stand in lieu of and perform the functions of a writ and petition in an ordinary suit; and it would seem to be just as unreasonable to say that the contestee could not appear in court and object to the notice upon the ground that it is insufficient in law as to say that a defendant could not appear in court and demur to a petition in an ordinary suit.” By this the learned judge, and, by adopting it, this "court, evidently meant (as the [623] context shows) that a contestee in a -contest for a county office was entitled to he served within statutory time with a legally sufficient notice and that service of one not legally sufficient was not service at all; that a challenge to the jurisdiction over the person could, under the statute, he made for want of any timely service and for want of timely service of a legally valid notice; that to assail the legal sufficiency of the paper served was to assail the service itself. He concluded that such an attack waived nothing, and this court approved'that construction of the statute, (c) The sixth ground, is construed hy counsel to he an attack on the service because no notice was served in time for the Independence term. It is open to this construction and the intent of the movent is of consequence upon the question of waiver. [Harkness v. Hyde, 98 U. S. l. c. 479; Woodard v. Milling Co., supra.] This ground of the motion, in view of the rule, ought not to be held to constitute waiver. The same may be said of the eighth ground, (d) The charge that the court had no power to make the order under the contest statute might have meant more things than one. The motion as a whole shows an attack on the jurisdiction for want of service. If there was no service it was true as charged, that the court had no jurisdiction- to do anything. It does not accord with the great weight of authority to select a meaning for words used in a motion, filed as a special appearance, which will transform it into a general appearance, especially in case the words are fairly open to a construction ^harmonizing with the explicit declaration that a special appearance is intended. VI. The preliminary rule is made absolute. Faris and Williams, JJ., concur; Graves, J., concurs in separate opinion; Walker, J., concurs in paragraphs 1, 2 and 3, and in the opinion of Graves, J.; Woodson, J.; dissents in an opinion in which Bond, G. J., concurs.