Summary
In State ex rel. Dawson v. Falkenhainer, 321 Mo. 1042, 1046, 15 S.W.2d 342, 343 (1929), this Court en Banc said: "The Legislature has no power to give to the Constitution an interpretation which would be contrary to its terms.
Summary of this case from Mobil Oil Corporation v. DanforthOpinion
February 11, 1929.
1. ELECTION CONTEST: Jurisdiction to Order Recount: Before Required Time to Plead. The notice of an election contest, timely served, serves the double purpose of a writ and complaint, and states a cause of action, and its service brings the contestee into court, and a case is pending from the time said notice is served, and the court is not without jurisdiction, before the contestee is required to plead to the notice, to order a recount of the ballots.
2. ____: ____: Irregularity. An order prematurely made by the court in a case pending is a mere irregularity, and does not go to its jurisdiction.
3. ____: Primary Elections: Committeeman: Officer. A primary election in cities of four hundred thousand or more inhabitants, at which party committeemen are elected, is an election, and the circuit court has jurisdiction to entertain an election contest brought by a person claiming to have been elected committeeman for his ward by the votes cast by members of his party at such election, and to order a recount of the ballots cast thereat. A party committeeman is a public officer, and is elected to office at what is denominated a "primary election" held in August, and not merely nominated, as are candidates for other offices.
4. CONSTITUTION: Interpretation by Legislature: Primary Election: Act of 1921. The Legislature has no power to give to the Constitution an interpretation contrary to its terms. The Act of 1921 (Laws 1921, Ex. Sess., p. 68), declaring that a primary election authorized by it should not be deemed an election within the meaning of the provision of the Constitution guaranteeing the secrecy of the ballot, relates to primary elections, and does not relate to an election, and is irrelevant in a suit to contest the election of a person claiming to have been elected to the office of party committeeman at such election, though such election is held at the same time that a primary election is held for the nomination of candidates for other offices.
5. ELECTION CONTEST: Notice: Insufficiencies: Prohibition. Irregularities and insufficiencies in the notice of an election contest, and in proceedings in pursuance to it, are for the determination of the judge of the trial court which has acquired jurisdiction of the case, and are not a sufficient basis for a writ of prohibition to prohibit such judge from entertaining such contest.
Corpus Juris-Cyc. References: Constitutional Law, 12 C.J., Section 248, p. 813, n. 42, 44. Elections, 20 C.J., Section 270, p. 210, n. 81; Section 351, p. 254, n. 25. Prohibition, 32 Cyc., p. 605, n. 34.
PRELIMINARY RULE DISCHARGED.
Ben Philipson and Henry J. Mueller for relator.
(1) The court had no jurisdiction before the return day set forth in the summons and notice of election contest, before the time contestee was required to plead, contestee not having entered an appearance. The court does not have jurisdiction to hear and determine upon its merits a proceeding after service of summons, before the return day of that summons, when no appearance has been entered by the defendant. State ex rel. Childers v. Kirby, 256 S.W. 548; State ex rel. Davison v. Hough, 165 Mo. 561; 20 C.J. 218, par. 276; Ramsey v. Huck, 267 Mo. 333; Hale v. Stimson, 198 Mo. 134; State v. Hough, 193 Mo. 615; Nash v. Craig, 134 Mo. 347; State v. Smith, 104 Mo. 661. (2) The General Assembly has made no provisions for the trial of contested primary elections as required by Section 8, Article 8, of the Mo. Constitution, as amended, Laws 1925, page 411. Sec. 4896, R.S. 1919; State ex rel. Frank v. Becker, 9 S.W.2d 153. (3) Primary elections in cities having over 400,000 inhabitants are not deemed elections within the meaning of the Constitution, Sec. 3, Art. 8. Laws 1921, Ex. Sess., p. 67; State ex rel. Hatfield v. Carrington, 190 N.W. (Iowa) 390. (4) The notice of election contest and summons required the contestee to appear at a term of court other than prescribed by Sec. 4900, R.S. 1919. The notice given was, therefore, insufficient. Adcock v. Le Compt, 66 Mo. 40. Under the statute the first term of court held after the official count and service of notice of contest was the June term, 1928, and the cause should have been made returnable to that term. State ex rel. Dick v. Wiethaupt, 266 Mo. 306; State ex rel. Brady v. Evans, 184 Mo. 640; Higbee v. Ellison, 92 Mo. 13; Tramel v. Han. St. Jos. Railroad, 101 Mo. 136; Montgomery v. Dormer, 181 Mo. 5; State ex rel. Woodson v. Robinson, 270 Mo. 212; Hale v. Stimson, 198 Mo. 134. (5) No notice of contest was served on Weaver. He was a necessary party, because Weber claimed that four votes in each of the twenty-five precincts were counted for Weaver which should have been counted for Weber. Weaver should have been made a party; notice of election contest should also have been served on him. Jarman v. Mason, 229 Pac. (Okla.) 459; Gower v. Johnson, 292 S.W. (Ark:) 383; Wieden v. Eher, 147 N.E. 388; State ex rel. Bevan v. Williams, 291 S.W. 481. (6) A political party committeeman is not a public officer. 29 Cyc. 1365; Attorney-General v. Drohan, 160 Mass. 534; Board of Elections v. Henry, 158 N.E. 94; Mechem, Public Office, par. 1; 9 R.C.L. 1088; 20 C.J. 119; Brundage v. Brady, 302 Ill. 576; Kell v. Kramer, 328 Ill. 512; Heiskell v. Ledgerwood, 144 Tenn. 666; State v. McLean, 25 N.D. 203, 159 N.W. 847; Tuck v. Cotton (Ark.), 299 S.W. 613; Art. 5, Chap. 30, R.S. 1919. (7) Sec. 4896, R.S. 1919, relating to election contests, makes no provision for the contest of political party committeeman or primary election, or of any election except school director. Owen G. Jackson for respondents.
(1) The court had jurisdiction and authority to order a recount of the ballots after service of the notice of contest, because a contest is then pending, and the court had jurisdiction and authority to make this order before the return day. Sec. 4911, R.S. 1919; State ex rel. v. Klein, 116 Mo. 259. (2) In the statute regulating primaries it is also provided for the election at the same time of committeemen to represent the political parties. A party committeeman, therefore, is not nominated, but elected at the primary. By statute the primary election at which a ward committeeman is elected is a general election so far as that office is concerned. Sec. 4848, R.S. 1919; State ex rel. v. Hamilton, 240 S.W. 445. (3) 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. Under the construction placed upon this statute by this court the contest is triable at the first term of court that shall begin fifteen days after the official count of the ballots and the service of notice of contest, and does not mean that the contest shall be triable at the term of court that is in continuous session at the time of the filing of the contest. Sec. 4900, R.S. 1919; State ex rel. v. Southern, 278 Mo. 610. (4) Weaver, who was also a candidate for the office, is not a necessary party to this action. He makes no claim to the office of committeeman. He filed no contest and the results of the election as to him have become final. State ex rel. v. McIlhinney, 199 Mo. 67. (5) The office of party committeeman is a public office within the meaning of the statute relative to contests. Sec. 4896, R.S. 1919; State ex rel. v. Hamilton, 240 S.W. 445; People ex rel. v. Democratic Comm., 164 N.Y. 335; In re Hines, 141 N.Y. App. Div. 574. (6) A party committeeman elected from one of the Wards of the city of St. Louis has the right to institute a contest to determine his right to the office. Sec. 4896, R.S. 1919; State ex rel. v. Hamilton, 240 S.W. 445.
Prohibition. Relator seeks to prohibit respondent, Judge Falkenhainer, from entertaining a proceeding to contest the election of relator as Republican Ward Committeeman for the Twenty-seventh Ward of the city of St. Louis.
The petition sets out the notice of election contest wherein it is alleged that respondent George J. Weber was elected as Committeman of the said ward at the primary election held in said city, August 7, 1928, and that on account of an erroneous count of the ballots in several precincts and other matter mentioned in the notice, the relator, Henry Dawson, was returned as elected as committeeman. As officially counted and certified. Dawson received 2372 votes, Weber received 2335 votes, and one A.S. Weaver received 292.
The relator's petition further alleges that the official count was had August 15, 1928, and the notice of contest was filed August 29, 1928, and service had of said notice August 24, 1928, five days before the filing of said notice.
Relator also complains that the notice of contest and summons were directed to the wrong term of court.
Relator's petition further alleges that September 18, 1928, the contestant Weber appeared before Judge Falkenhainer and made application for a writ directed to the Board of Election Commissioners of the city of St. Louis, authorizing them to open, count and compare with the list of voters the ballots which were cast for the office of Republican Committeeman of the Twenty-seventh Ward of said city at the primary. It is claimed that the court was without jurisdiction to make such an order before a contestee was required to plead to the petition.
Other matters are alleged in the relator's petition as to the details of the proceeding, and argumentative matters relating to the law of contested elections.
On this petition a preliminary rule in prohibition was issued. The respondents thereafter, at the October term, 1928, of this court, filed a demurrer. Later, relator filed a motion to make the preliminary rule in prohibition absolute.
I. The first point made by relator is that the court was without jurisdiction to order a recount of the ballots before the contestee was required to plead to the notice of Jurisdiction contest, which performs the office of a statement to Order of the contestant's cause of action. Relator cites Recount. some cases such as Davison v. Hough, 165 Mo. 561; State ex rel. Childers v. Kirby, 256 S.W. 546, where it is held that a court is without jurisdiction to render a final judgment in a case before the return of the writ or before the time when the defendant must answer. But that does not prevent the taking of evidence as soon as a case is pending. A case is pending after a petition is filed in court and service had upon defendant. In case of election contest, as relator very well says: "The notice of contest serves a double purpose of a writ or declaration or of a summons and complaint." It states the cause of action and its service brings the contestee into court. The case is pending when it is served.
It was held by this court in State ex rel. Brown v. Klein, 116 Mo. 259, l.c. 268, that the statute does not require a contested election case to be "at issue" when an order to open the ballot boxes is made. It is only required that a contest shall be "pending" before the court which makes the order; that such contest is pending from the time such notice is served upon the contestee. That decision has never been overruled nor criticized so far as we are able to find, and the relator points out no statute which would authorize a change of the rule in that respect. So the respondent Judge had authority to order the ballot boxes opened if an election contest was in fact pending.
Aside from that conclusion, an order made by the Judge prematurely in a matter of the kind would be a mere irregularity, and would not go to a jurisdiction.
II. Relator further claims that the respondent Judge is without jurisdiction to entertain the cause because primary elections in cities of more than four hundred thousand inhabitants are not elections within the meaning of the Constitution. He cites State ex rel. Frank v. Becker, 9 S.W.2d 153, where it was held that no statute provided for contesting a primary election of candidates; the election by which nominees of the party ticket are selected. That is entirely beyond the question, because the political committeemen were not merely nominated at the primary, August 7, 1928, but were elected. That was the final vote which determined their right to the office for which they were candidates at the time.
Relator cites cases from other jurisdictions to sustain the view that the election of a political committeeman at a primary election is not an election and that a committeeman so elected is not an officer, so that statutes applying to election contests for office do not apply.
Respondent points to the Act of 1921 (Laws 1921, Ex. Sess., page 68), where the Legislature declared that the primary election authorized by that act shall not be deemed an election within the meaning of Section 3, Article VIII, of the Constitution, guaranteeing the secrecy of the ballot. It is not necessary to go into a discussion of the constitutional amendment of 1925, where that section was amended which seems to cover this case; for the proposition is altogether irrelevant. The Act of 1921, quoted by relator, is the Legislature's interpretation of the Constitution. The Legislature has no power to give to the Constitution an interpretation which would be contrary to its terms. To the courts is given authority to construe the Constitution, and the Legislature must enact its laws in accordance with the Constitution as construed. Further, that statute relates to a primary election. We are not concerned here with the primary election, but with an election.
Notwithstanding authorities to the contrary, this court has held in State ex rel. Ponath v. Hamilton, 240 S.W. 445, and supported the holding by authorities from other states, that a political committeeman is a public officer within the purview of Section 4896, Revised Statutes 1919, which provides for election contests. In that case this court carefully analyzed our statutes and pointed out the particular provisions which place certain duties and obligations upon the political committeeman, such as to constitute him a public officer, holding that his powers are a matter of public concern. While his official duties pertain only to the management of the affairs of his party, still they affect the welfare of the entire community and exercise some of the functions of government. It is just as important that he should be honestly elected as any official, the exercise of whose powers and authority affects the welfare of the community. Our statute in creating the office of political committeeman provided for it most responsible functions whose discharge affects the general welfare.
Relator points to what he claims to be certain irregularities and insufficiencies in the notice of contest and proceedings in pursuance of it, all of which are for the determination of the respondent judge who had charge of the case.
The preliminary rule is quashed.
All concur.