Bowen v. Hixon

Bliss, Judge,

delivered the opinion of the court.

At the general election of 1866, plaintiff and defendant were candidates for the office of county clerk. The record shows that within eight days after the election the county clerk, taking to his assistance two justices of the County Court, proceeded to examine and cast up the votes given for the candidates, and gave *342 a certificate of election to the plaintiff, Bowen. Within twenty days from this official count, Hixon gave him notice that he would contest his election ; and it appears that on the 24th of December, after the twenty days had expired, and before the session of the County Court where the contest was to be had, the clerk, again •taking to his aid two justices of the County Court, made another canvass, and gave a certificate to defendant, Hixon, who received a commission from the governor and took possession of the office. The plaintiff then gave defendant notice that at the next term of the County Court he would contest his right to the place, which notice was served on the 4th of January, 1867, over fifty days after the first, and some ten days after the second count. At the session of the County Court the defendant moved to dismiss the1 proceedings for want of proper notice, which motion was overruled, whereupon he suffered judgment and appealed to the Circuit Court, where the same motion was again overruled, and he appealed to the District Court. The latter court reversed the judgment, and the case is brought here upon error.

It is impossible to understand some of these preliminary pro-' ceedings. The record fails? to throw any light upon their inducement or the circumstances surrounding them; but it is presumed that this is but a chapter of the same controversy considered in some of its aspects in State v. Hixon, and State v. Bowen, 41 Mo. 210 -21. The questions we are called upon to decide are purely technical, and their decision must be governed by views long settled and universally acquiesced in. After the first canvass, and the election returns had been regularly and lawfully made, it seems there was an attempt to make a new one, and that the governor’s commission was issued to the person declared to be elected on this second canvass. The notice required by the statute was made within twenty days of the second count of the votes, though more than twenty from the first; and we must first consider which was the official count referred to in the statute. Section 52 of the chapter of elections (Wagn. Stat. 573) provides that “no election of any county officer shall be contested unless legal notice of such contest be given in writing to the opposite party within twenty days after the votes shall be officially *343 counted.” The official count referred to is provided for by section 25 of the same chapter, which declares that “ the clerk of each county shall, within eight days after the close of each election, take to his assistance two justices of the peace of his county, or two justices of the County Court, and examine and cast up the votes of each candidate, and give to those having the highest number of votes a certificate of election.” It does not appear that the first count; had within the eight days after the election, was not in all respects regular and lawful, and the question then arises whether there could be any other count, and, if one were attempted, whether it had any force or validity. We have no hesitation in saying that it was altogether invalid. When this duty of the clerk was fully performed, it was performed once and forever, and could never be repeated. To suppose that it could be renewed — that the canvass of one day could be repeated the next, and counter certificates be issued to different contestants as new light or influence was brought to bear upon the mind of the clerk — would render the whole proceeding a farce. It is simply a plain ministerial duty of the clerk, aided by the two magistrates, requiring sufficient knowledge of arithmetic and moral honesty to count correctly, and clerical ability to make the certificate. When finished, the whole duty is performed, never to be repeated. That the clerk and justices might adjourn, if necessary, for one or more days before completing the count, need not be disputed; but after it is completed and certificates are issued the work is finished and the board is dissolved. The People v. Supervisors of Greene, 12 Barb. 217 , was an application for a mandamus against defendants, as the board of canvassers, commanding them to reassemble and correct their estimate of the votes cast at a certain election, wherein the relator was candidate for county judge, by counting the votes of a rejected precinct. The court refused the peremptory writ upon the ground mainly that the board could not reassemble. Says the court: “ That board met on the Tuesday following the election, and organized according to law. It then proceeded, though illegally and improperly, as is alleged, to estimate the votes of the county, and to make the statements prescribed by statute. * * * The board has dis *344 solved. Were tbe same individuals again to convene, they would not again constitute tbe board o£ county canvassers. No statute authorizes sucb assembling, or prescribes its mode of organization. * * * When tbe board deposited with tbe county clerk the result of its canvass, and declared who were elected to office, and published that result and determination, all its powers were expended.”

But if the county clerk bad tbe right to recount tbe votes at all, be certainly could not do so after tbe expiration of the eight days limited by tbe statute, and after tbe matter bad been removed by notice of contest to tbe County Court. Tbe second canvass was a nullity, and tbe certificate under it wholly unauthorized. The “ official count,” then, referred to in the requirement as to the time of notice, was tbe count made under tbe statute within eight days of tbe election.

It is admitted that tbe notice of tbe intended contest was given more than twenty days after this official count, and tbe question arises whether this requirement in regard to time is peremptory or may be enlarged. It has always been held that where tbe jurisdiction of a court is made to depend upon tbe time either of giving notice or of taking appeals, tbe requirement is peremptory. And in construing tbe statute under consideration, this court has ruled, in Castello v. St. Louis Circuit Court, 28 Mo. 278 , that “the fifty-fifth- section of tbe election law (same as § 52, Wagn. Stat.) provides that a legal notice in every contested election of a county officer must be given within twenty days after tbe official count. This is tbe longest period allowed for such notices. It may be requisite to give them before tbe lapse of twenty days, but they can not be deferred beyond that period in any case.” Wilson v. Lucas, 43 Mo. 290 , was a contest of an election to tbe office of circuit judge, tbe statute requiring forty days’ notice. Tbe petition was dismissed because that requirement bad not been observed. This question is too well .settled, both upon principle and authority, to admit of doubt, and the action of tbe County and Circuit Courts in refusing to dismiss tbe case for want of notice was clearly erroneous.

Tbe contestant complains that inasmuch as tbe contestee took *345 possession of tbe office more than twenty days after the official count, he is by this construction cut off from the right of appeal. It may be so, but not from his remedy. An information in the nature of a quo warranto in the Circuit Court, upon the relation of the contestant, would have brought up the whole matter.. Such proceedings are not favored where a contest under the statute can be had, but in a case like the present it is the appropriate remedy. The governor’s commission, though giving the-holder a right to the office until judicially ousted, would be no bar to a full investigation of the rights o'f the parties.

The other judges concurring, the judgment of the District Court is affirmed.