Gillespie v. Dion , 18 Mont. 183 ( 1896 )

Hunt, J.

This proceeding is special in its character, authorized by Section 1043, Fifth Division, Compiled Statutes of Montana. The statute, ungrammatical as it is, is as follows:

“All contests of county and township officers shall be tried in the proper county, and when an elector shall wish to contest such an election he shall file with the clerk of the board of county commissioners, within ten days after such person shall have been declared elected, a statement in writing, specifying the grounds of contest, verified by affidavit, and such clerk shall issue to the contestant a notice to appear at the time and place specified in the notice, before the district court, which notice, with a copy of such statement, shall be delivered to the sheriff, who shall within five days, serve the same upon the contestor by delivering tohim a copy of such notice and statement, or by leaving such copy at his usual place of residence. That in all contested election cases, or rights thereto, existing, or which may hereafter occur, when the said notice shall not have been served orgiven in compliance therewith, the same shall be a bar to any and all persons making such contests, and all actions and rights of action thereto.” The words contestant and contestor plainly should be contesteo.

The consideration of the jurisdiction of a court to hear and determine matters in litigation being one which presents itself in limine, we will therefore examine this question raised by appellant. (Chadwick v. Chadwick, 6 Mont. 566.)

The power of the court to hear and determine the matter, and to render the judgment rendered, is regulated by the terms of the statutes (sections 1043 -and 1044) alone. The court is, therefore, limited to the exercise of express powers conferred. If a case was not presented by the contestant which brought the power of the district court into action, then there was no jurisdiction, and the contestee’s motion to quash should have been sustained.

That election contests, at least prior to the adoption of the Codes, were special, and meant to be of a summary nature, is evident by the procedure laid down. The method of their commencement was by a statement and notice in the county clerk’s office,' rather than by complaint and summons in regular civil action. The time in which the statement of the grounds of contest might be filed was limited to ten days after the contestee had been declared elected. The notice must have been .given and served within a limited time. The judge must have at the time specified, proceeded to try the contest; and a certificate of the clerk of the district court was obliged to issue to the person declared to be elected by the court, by virtue of which certificate the person so declared to be elected was entitled to enter upon and hold office until the decision of the district court might be reversed on appeal. The court not having jurisdiction of such statutory contests by virtue of its organization alone, they were included in such special proceedings, jurisdiction of which was conferred by the legislature.

The supreme court of California, in Dorsey v. Barry, 24 Cal. 449, held that election contests, under statutes analogous to those of Montana, were special proceedings, distinct in form and substantially different from the common-law remedy. Bliss on Code Pleading, (§ 1, note,) classes “election contests” as special proceedings. So does Works on Courts and’ Jurisdiction (page 467.)

In Schwartz v. County Court, 14 Col. 44, 23 Pac. 84, the court said: “The proceedings upon an election contest before the county judge, under the statute, are special and summary in their nature; and it is a general rule that a strict observance of the statute, so far as regards the steps necessary to give jurisdiction, must be required in such cases. ’ ’

The proceeding, therefore, being special the rule is that the jurisdictional facts must appear on the face of the proceedings. (Sutherland on St. Const., § 391, and authorities cited.)

We think it plain that no one but an elector can invoke the aid of the statute cited; and, when the statute is so invoked, the party seeking its benefits must bring himself within its spirit and its letter. The law says an elector may contest an election for county and township offices. This excludes all others (except, perhaps, by appropriate proceedings in quo warranto), not electors. For instance, one not a citizen of the United States; one who, although a citizen of the United States, had not resided in the state of Montana and county of Dawson the required length of time; one under 21 years of age; one who had been convicted of felony, and not pardoned; a woman, — none such could contest the election of defendant or contestee, under section 1043. It was the letter and policy of the law that if the will of the people had not been correctly pronounced, — if persons declared elected had not been in fact, — electors might contest by simply following the provisions of the statute; but, on the other hand, to avoid vexatious intermeddling by those not interested in the political affairs of the county, the statute permits such contests to be instituted only by those qualified to vote themselves, and does not extend the right to any others. The person instituting such a statutory contest must therefore make it affirmatively appear by the statement that he is an elector, and thus entitled to institute the proceedings to give the court jurisdiction.

In Edwards v. Knight, 8 Ohio 375, Edwards produced in court a copy of a notice duly served upon Knight, that the election of Knight as prosecuting attorney would be contested by Edwards. Pursuant to statute, the contest was docketed, when Knight moved to quash the proceedings, assigning as cause the lack of jurisdiction in the court, and that it did not appear from the notice that Edwards was an elector or candidate. The court of common pleas quashed the proceedings. The supreme court said: “The third objection, that Edwards shows no right as candidate or elector to contest the seat, seems to us well taken. The candidate is not presumed to know all the electors in his district, and he is bound to respond to none except those who show, in the notice, the right to question, ■which forms the basis of the proceeding. The contestor offers proof that he was an elector, but we think the right should appear on the record. This opinion is in analogy with the settled course of decisions in this court under the bastardy act, requiring the facts that the mother is an unmarried woman, and resident in Ohio, to be set forth in the com- , plaint. ’ ’

This case is approvingly cited by McCrary on Elections (3d Ed. § 399), who says : “ Where the statute provides that the election of a public officer may be contested by ‘ any candidate or elector, ’ the person instituting such contest must aver that he is an elector, or that he was a candidate for the office in question. This must appear on the face of the record, and it is not enough that the contestant offers proof that he is an elector. The incumbent is not bound to answer or take notice of a complaint which does not contain this averment.”

In Schwarz v. County Court, cited above, the supreme court of Colorado says : “ It provides for a written statement as the basis of the proceedings, and designates what it shall contain, and the officer with whom it shall be filed. It designates the officer by whom the summons shall be issued, and provides the time and manner of making up the issues. Provision is also made for fixing the time of trial, and for the form of judgment to be entered, etc. As we have seen, the jurisdiction of the court, under such a statute, depends entirely upon the terms of the act, and consequently, before contestors can invoke such jurisdiction, facts must be stated by them which bring the cases within the purview of the act. ’ ’ See, also, Clanton v. Ryan, 14 Col. 419, 24 Pac. 258.

In Batterton v. Fuller (S. D.), 60 N. W. 1071, under a statute which required the statement and notice to be embraced in one paper, called by statute ‘ ‘ the notice of contest, ’ ’ it was held that such notice of contest was a jurisdictional paper, and must be sufficient upon its face to give the court jurisdiction, otherwise it was not effectual as a notice of contest, and gave the court no jurisdiction. See, also, Paine on Elections, § 809; Rutledge v. Crawford, 91 Cal. 534, 27 Pac. 779 ; Wright v. Fawcett, 42 Tex. 203; Vailes v. Brown (Col. Sup.) 27 Pac. 945.

This omission to aver on the face of the record that contestant was or is an elector (whether in the body of the statement or in the affidavit is, perhaps, immaterial) is therefore fatal; and the court never having acquired jurisdiction by the first purported statement, filed within ten days after Dion was declared elected, no amendment offered or made after the ten days had elapsed could give it power to act. The paper filed was not one to which Dion was obliged to give attention at all, and, the statute requiring the statement to be filed within ten days from the date of the declaration of the election of Dion being peremptory, the time cannot be enlarged by the court. (Wilson v. Lucas, 43 Mo. 290; Bowen v. Hixon, 45 Mo. 340.)

The reason given by McCrary on Elections (section 392) for placing statutory limitations upon the time within which election contests must be instituted is, that it is of the utmost importance that promptness be required in commencing and prosecuting such proceedings, in order that a decision may be reached before the term was wholly or in great part expired.

In Voiles v. Brown, heretofore cited, an election contest was dismissed because the statement of contest was not filed within the time required by the statute, and, by reason of such omission, the court acquired no jurisdiction of the case.

The contestant, Gillespie, cites us to the case of Blanck v. Pausch, 113 Ill. 60, in support of the contention that, conceding it was necessary for the contestant to aver that he was an elector, still the right to amend was properly given by the court after the ten days had expired. There is a marked difference between the statutes of Illinois and Montana. By the laws of Illinois (§ 114 et seq., c. 46, Starr & C. Ann. St.) it is expressly required that the statement is to be filed with the clerk of the court, and may be verified as bills of chancery are verified. Process is to be served as provided in cases of chancery, and ‘ ‘ the case shall be tried in like manner as cases of chancery.5 ’ Construing these statutes, the supreme court held in Dale v. Irvin, 78 Ill. 171, that the proceeding had all the incidents of a regular bill in chancery, and that power to amend, therefore, existed. The Illinois decisions cannot, therefore, apply to the statutes under consideration, and we adopt the doctrine laid down by McCrary in support of the Ohio case and of the Colorado decisions, under statutes more similar- to ours, believing it to be safer in principle and reason.

These views upon the question of jurisdiction lead to the conclusion that the court ought to have sustained Dion’s first motion to quash the proceedings for lack of jurisdiction, and that, jurisdiction not having been obtained by a statement filed within the time limited by law for instituting the contest no amendment in this respect made after the lapse of the ten days could avail the contestant.

We are of opinion, too, that the contestant’s original statement was not one specifying the grounds of contest as contemplated by the statute, and that it was insufficient to grant contestant any relief. It did not state that contestant was a candidate for the office of county treasurer. There was no averment that any ballots were unlawfully marked, or improperly or unlawfully counted. It did not set forth what the nature of the mistakes alleged to have occurred were, or whether or not such mistakes directly affected the result. It did not state the number of votes given for either of the candidates at Glendive or any other precincts in the county or plead any excuse for not making such statement; nor did it state, or attempt to state, that any electors were prevented from casting their ballots by fraud or other misconduct. “If contestin' does not show that, by reason of the illegal casting or rejection of votes, the result is different from what it otherwise would have been, the contest proceeding should not be entertained.” (Todd v. Stewart, 14 Col. 286, 23 Pac. 426; Paine on Elections, § 825; Smith v. Harris (Col. Sup.), 32 Pac. 616.) The mere belief of the contestant that, if the votes were recounted, it would result in showing a majority for him, does not supply the radical omissions in the statement of contest. He should have particularized the facts upon which he draws his conclusion, to the end that the court may see that, if his specifications of grounds are true, he should be granted relief.

In a recent case in Oregon ( Whitney v. Blackburn, 17 Or. 564, 21 Pac. 874), the court said of a notice and statement in an election contest as follows : ‘ ‘ From the facts as set forth, it is manifest that they are not even reasonably or otherwise specific and certain, and that no one could be prepared to meet charges preferred in such a general way, or, if any irregularity or illegality in fact did lie concealed behind them, to avoid being taken by surprise. The wording of the notice indicates, as was asserted at the argument, that the plaintiff did not know of a single error or illegal vote cast, but states the facts broadly and generally, because he was unable to point out, or to be reasonably specific and certain as to any count in his notice, or as to any irregularity or illegality of whatever kind, upon which to rely, or other facts to sustain his claim. * * * While it is the duty of courts to disregard mere technical rules or defects, and to liberally construe the law, that the rights of the people may be preserved, and that no protection may be afforded to fraud, yet he who undertakes to contest the right of another to an office to which he has been declared to be elected, by a tribunal chosen by the people, ought to have some well-defined £ cause, ’ and to be able to state it with sufficient certainty as to notify or inform the other party of the substance of the facts upon which he relies to defeat his title, and to authorize the court to make the inquiry. ’ ’

Doubtless, amendments may be made to a statement sufficiently good to enable the proceeding to be considered, provided such amendments do not essentially change the grounds of the contest, or set forth grounds where none were originally stated; but, where the amendments are so radical as to virtually initiate a contest where really no grounds at all have been specified in the original statement, we are inclined to hold they ought not to be permitted after the ten days allowed by law for commencing proceedings have expired. (Batterton v. Fuller, supra.)

A dissatisfied elector should be vigilant. Under a statute that requires a specific statement to be filed, an elector ought scarcely to be allowed to file a general objection without specific grounds of contest within ten days after the election result is declared, and thereafter to file his specifications based upon grounds perchance discovered after the lapse of ten days after the contest was instituted.

In Heyfron v. Mahoney, 9 Mont. 497, cited by plaintiff (contestant), the transcript shows very full and explicit statements in relation to the various precincts where it was alleged by contestant that illegal votes were cast. The names of the alleged illegal voters were .given at great length, and the exact canvass was set forth in detail. Upon the trial, Heyfron was allowed to amend by correcting certain voting lists, by altering the spelling of the names of certain persons, and by adding the names of other persons to such lists, which did not affect the judgment in the case, upon the principle that immaterial defects in pleadings in election cases should be disregarded, that the ends of justice might be promoted. But that was a statement very different from the paper called a ‘ ‘ statement ’ ’ in this case. Here the contestant is making a good statement out of nothing.

But for lack of jurisdiction, heretofore discussed, the judgment is reversed, and the proceeding dismissed.

Reversed.

Pemberton, C. J., concurs.