Hunt v. Rolloff ( 1947 )

This proceeding is one to contest the election of a candidate declared elected district judge, upon the ground of serious violation of the corrupt practices act. M.S.A. §§ 211.01-211.40.³ It was so regarded by the contestant. The only question decided below was whether the court had jurisdiction of the proceeding. The trial judge held that the court had not acquired jurisdiction because notice of contest was not served on the contestee and the secretary of state within the time specified for that purpose in the statute. I think that the decision and this court's affirmance of it are erroneous.

Contestant filed and attempted to serve an instrument, referred to herein as a "notice of contest," but which was in effect both a petition and a notice of contest — the former because it set forth fully the facts constituting the grounds upon which the contest was predicated and demanded judgment voiding contestee's election as judge upon the grounds alleged, and the latter because it expressly notified contestee that contestant thereby contested his election. The legal effect of the instrument is not different from two separate instruments — one a petition setting forth the grounds of the contest, and another notifying the contestee thereof.

There is no question as to contestant's right to bring this proceeding. Any contention to the contrary would be frivolous, in view of the explicit provision in § 208.01 authorizing a defeated candidate to make such a contest. This section provides that the contest proceeding shall be instituted by the filing of a petition and that the contest shall be carried on according to law. This contemplates that notice of the contest shall be given under § 208.07, which governs as to questions of notice and procedure, but not as to the filing of the petition. Also, there is no question as to the fact that the so-called "notice of contest" — the petition and notice of contest — was filed with the clerk of the district court within ten days after the canvass of the votes was completed. The question, then, is whether the court's jurisdiction of the contest proceeding depended not only on the due filing of the notice of contest, but also on service of the notice thereof upon the parties required by the statute to be served. My opinion is that jurisdiction depended only on the due filing of the notice of contest. That we have here.

Section 208.07 relates to election contests involving irregularities in the conduct of an election. The contest is initiated by the notice of contest therein provided, which serves the dual purpose of a pleading and a notice. Section 208.01 relates to contests of elections upon grounds of violation of the corrupt practices act. See, Johnson v. DuBois,208 Minn. 557, 294 N.W. 839. By the terms of the statute, the contest is initiated by the filing of the petition. The language of § 208.01 is: "The proceeding [a contest under the corrupt practices act] shall be commenced by petition filed in the district court * * *." Section 208.07 is important only in the respect that it provides procedure to implement § 208.01 with respect to giving notice, and so on. The provision of § 208.07 requiring notice of contest" to be filed with the clerk of the district court within ten days after completion of the canvass of the votes and to be served "within said period" upon the official authorized to issue the certificate of election was added as an amendment to § 208.07. By its terms, this section relates to the notice of contest, not to a petition filed under § 208.01. Section 208.07 further provides that when the contestee desires to raise points not specified in the notice of contest he may serve a notice upon contestant specifying such points; that the notices shall constitute the pleadings in the case; and that "All notices provided for herein shall be served in such manner and within such times as the court may by order direct." (Italics supplied.) The provision for service of notice of contest within the time for filing it was introduced by amendment to the statute by L. 1945, c. 229, § 7.

The amendment for service of the notice of contest within the time for filing the notice is not jurisdictional. Prior to the amendment, the settled construction of the statute with respect to election contests, both under the corrupt practices act for violations thereof and under the statute regulating the conduct of elections for irregularities in the conduct thereof, was that the court acquired jurisdiction of the proceeding by filing of the notice of contest, and not the service thereof.

In Hanson v. Village of Adrian, 126 Minn. 298, 300,148 N.W. 276, involving an election contest where the village had voted to grant licenses for the sale of intoxicating liquor, Mr. Justice Holt, speaking for the court, said:

"* * * The notice of contest was filed within the prescribed time and thereby the court obtained jurisdiction."

In Miller v. Maier, 136 Minn. 231, 234, 161 N.W. 513, 515,2 A.L.R. 399, where, as here, a petition and notice of contest of an election for violations of the corrupt practices act were filed within the prescribed time, we said:

"The filing and serving of the petition, together with the notice, conferred upon the court power to act in the premises, and, after jurisdiction is thus conferred and the court has acted thereon, the jurisdiction cannot be defeated by any number of such petitioners subsequently withdrawing from the petition."

See, 2 Dunnell, Dig. Supp. § 2983.

Plainly, the language of the statute that the proceeding "shall be commenced" by the filing of a petition in the district court could have no other meaning than that the court should acquire thereby jurisdiction of the proceeding.

Our well-established rule that the filing of the petition in an election contest proceeding confers jurisdiction upon the court is the same as that in probate proceedings, where jurisdiction of the subject matter is acquired by the filing of the petition. Service of notice thereof is not jurisdictional, but is subject to the control of the court. In re Estate of Stenzel, 210 Minn. 509, 299 N.W. 2; Hanson v. Nygaard,105 Minn. 30, 117 N.W. 235, 127 A.S.R. 523; 5 Dunnell, Dig. Supp. §§ 7777, 7783e. See, Jasperson v. Jacobson, 224 Minn. 76,27 N.W.2d 788.

I think that the legislature did not intend by the amendment to change the rule that the filing of a petition to contest an election under § 208.01 for violations of the corrupt practices act confers upon the court jurisdiction of the proceeding. As recently as 1939, the legislature revised the election laws and reënacted § 208.01 without change, thereby adopting the prior judicial construction of it that the filing of the petition therein referred to conferred jurisdiction upon the court of the proceeding. See, Enger v. Holm, 213 Minn. 154, 6 N.W.2d 101. L. 1945, c. 229, amended numerous election laws, each of which was enumerated in its title. Section 208.07 was mentioned in the title of that act and amended in the body thereof. Section 208.01 was not mentioned either in the title or in the body. Thereby a legislative intention was manifested that no change was to be effected in § 208.01. That being true, the changes effected by the amendment, so far as here material, related only to § 208.07. These could affect the proceedings under § 208.01 only insofar as they relate to service of notice on the contestee and the official mentioned.

Likewise, there was no repeal of the provisions in § 208.07 relative to the power of the court to prescribe the time and manner of the service of the notice of contest. If the amendment has the effect the majority holds it has, a repeal has been effected without any manifestation by the legislature of such an intention. The fact that the amendatory act is silent with respect to the matter should be conclusive that no such repeal was intended.

It is to be remembered also that the public has an interest in the prosecution of election contests based upon violations of the corrupt practices act separate and apart from that of the contestant and to which any interest of the contestant must yield. Miller v. Maier, 136 Minn. 231, 161 N.W. 513,2 A.L.R. 399, supra. Likewise, an election contest should not be defeated by legal technicalities relating to matters of procedure. Moon v. Harris, 122 Minn. 138, 142 N.W. 12. The result reached by the majority sacrifices public interest and the cause of truth by mere legal technicality.

The instant case is an apt illustration of why the rule should be as it always has been and as I contend it still is. The difficulties with respect to service here arise apparently because contestee was out of the state when service was attempted. Why should such a circumstance defeat the contest? And why should not the district court have not only the power but the duty of dealing with such a situation? It is hard to believe that the legislature intended otherwise.

The amendment, therefore, should be harmonized so as to give effect not only to its provisions, but also to other parts of the statute. This can and should be done by construing the amendment to be directory as to the time within which the notice is required to be served. Such requirements, absent, as here, a provision prohibiting performance of the act after the time prescribed by the statute, are to be deemed directory. This principle is fully discussed and well stated by Mr. Justice Stone in Bielke v. American Crystal Sugar Co. 206 Minn. 308,288 N.W. 584. Under such a construction, service should be required to be made within the time specified in the statute, subject to the power of the district court to order otherwise. It is submitted that this is a desirable and sensible rule. It adapts the rule to the exigencies of actual cases.

True, contestant should apply promptly to the district court for an order directing the time and manner of service. Here, it turned out ultimately that there was occasion for an application to the court to prescribe the time and manner of serving the notice of contest, but the question was neither reached nor decided below. It appears that contestant mistakenly believed that he had made good service on contestee. He made a belated attempt to serve the secretary of state. If the time and manner of service were within the control of the court, there is no reason why the court could not have ordered such service on contestee and the secretary of state as the circumstances demanded. Likewise, there is no reason why the service made on the secretary of state should not have been approved. See, Walden v. Calef, 119 Minn. 165, 137 N.W. 738.

Before contestant became aware of the predicament he was in, contestee moved to dismiss upon the ground of lack of jurisdiction. Until that question was settled, there was neither opportunity nor occasion for contestant to apply for an order with respect to the matter of service of the notice. The time that has elapsed since the decision below erroneously holding that the court did not have jurisdiction should not be charged against contestant. A party is never to be charged with the consequences of judicial error, where, as here, he seeks relief from it by a direct attack. For all practical purposes, contestant's right to apply for an order fixing the time and manner of service should be considered as if the trial judge had held that the court had jurisdiction and contestant had applied immediately thereafter for such an order. The case should be sent back to afford him such an opportunity.

In administering election laws, the court should always remember, as pointed out previously and as we held in Miller v. Maier, 136 Minn. 231, 161 N.W. 513, 2 A.L.R. 399,supra, that an election contest upon grounds of violation of the corrupt practices act is a matter in which the public has an interest, and, once instituted, is not subject to the control of the contestant. And, as we held in Moon v. Harris,122 Minn. 138,142 N.W. 12, supra, the important thing is that the truth be ascertained and that the notices be construed as intended to aid, and not hinder, a fair investigation.

I cannot join in finding fault with contestant for alleged inconsistency, if any. After all, courts — we the same as others — make inconsistent decisions by changes of legal rules and shifts of legal doctrine. With most of these I find no fault, because they are part of the corrective process of the law. But, because we ourselves are sometimes inconsistent, how, then, can we find fault with litigants or counsel who are guilty of no more grievous offense on this score than we?

I think that there should be a reversal.

³ See, Flaten v. Kvale, 146 Minn. 463, 179 N.W. 213.