28 N.W.2d 771 | Minn. | 1947
Lead Opinion
"Douglas P. Hunt, Contestant, v.
Clarence A. Rolloff, Contestee.
"To Clarence A. Rolloff, the above named contestee, and to Emil H. Nelson, clerk of the District Court of Chippewa County, Minnesota:
"You and each of you will please take notice, that the above named Douglas P. Hunt, contestant who was a candidate for the office of *325 judge of the District Court of the twelfth (12th) Judicial District of the State of Minnesota, at the general election held on November 5, 1946, does hereby contest the election of the above named Clarence A. Rolloff to the office of judge of the District Court of said district, at said election, upon the grounds and for the reason that the said Clarence A. Rolloff, contestee, by himself, his committee, volunteer committee, committee members, agents, servants and employees did in the course of the campaign immediately prior to said election on said date, violate the Corrupt Practices Act of the State of Minnesota in various and diverse particulars and especially in the following respects and many others to-wit: [Here follow the various charges upon which Hunt relies].
"That contestant demands judgment that the said contestee be declared not elected to the office of judge of the District Court of the twelfth (12th) Judicial District of the State of Minnesota, because of and by reason of his violation, of the Corrupt Practices Act of the State of Minnesota, as herein set forth and that contestant have judgment that he is the duly elected judge of said court.
"Dated November 29, 1946."
This notice was signed by contestant and his attorney on the date mentioned.
Certain sections of M.S.A. c. 208, come into play, and a brief reference to the applicable ones should be made. Section
"* * * Any defeated candidate for a nomination, position, or office may make the contest. The proceeding shall be commenced by petition filed in the district court of the county in which the candidate whose election is contested resides, and the contest shall be carried on according to law."
Section
"The contest proceedings shall be brought on for trial, as provided in section
"When a contest is instituted under this chapter, the county auditor and secretary of state shall refrain from issuing a certificate of election until the final determination of the question as to which of the parties is entitled to the certificate of election. He shall then issue the certificate to the one so found to be entitled to the certificate."
Section
"Any voter may contest the election of any person for or against whom he had the right to vote, who is declared elected to a state, county, or municipal office, * * * by proceeding as follows: He shall file with the clerk of the district court of the county of his residence, within ten days after the canvass is completed a written notice of contest, specifying the points upon which the contest will be made, and cause a copy thereof to be served within said period upon the contestee and upon the official authorized to issue the certificate of election, * * *. When the contestee desires to offer testimony on points not specified in contestant's notice, he shall file and serve on the contestant notice thereof specifying such additional points. Such notices shall be treated as the pleadings in the case, and may be amended in the discretion of the court. All notices provided for herein shall be served in such manner and within such times as the court may by order direct, and the testimony shall be taken, and the matter tried and determined, in the same manner as such actions are tried by the court, at a general or special term, if any, occurring within 30 days after such canvass. When no term is already fixed, the judge shall seasonably appoint a special term to be held within such time." *327
Since both parties to this controversy are long-time residents of Chippewa county, no question of venue is presented. At the time of the 1946 election, contestant was serving as judge of probate of that county. His official term would not expire until 1949. Mr. Rolloff was county attorney, his term expiring January 6, 1947.
The issue presented is founded upon an order granted pursuant to contestee's motion —
"for an order dismissing the above entitled proceeding on the ground that the court does not have jurisdiction because:
"First, no proper service has been made upon the undersigned contestee.
"Second, that no notice of contest was filed with Mike Holm, Secretary of State, within the time required by law.
"Third, that the contestant has wholly failed to comply with the law relating to election contests."
The motion was based on all the files and records in the cause and upon contestee's affidavit, attached to the notice, wherein he affirmed that he left for Chicago on November 27 and did not return until December 5, 1946; that no copy of the notice of contest was ever personally served upon him. The other facts which we have recited need not be repeated. Attached to the court's order granting the motion, we have its well-considered memorandum reciting not only the facts, but also the controlling statutes and decisions which, to its mind, compelled the granting of the order here for review. This is the order from which contestant appeals.
1-2. Contestee appeared specially and for the purpose of raising the question of jurisdiction only. The issue thus presented was resolved by the trial court upon the theory that contestant had "committed himself to the procedure under Sec.
"The first contention of the contestant is that the limitation of ten days found in the statute applies only to filing the notice of the appeal with the clerk. If this be correct, then there is no time limit as to the service of the notice of appeal on the contestee, which would enable the contestant to defer the hearing of the contest to suit his convenience and pleasure, and, further, as said by the learned trial judge, it 'would introduce an element of uncertainty and confusion into the prescribed procedure for which there is no occasion and which is entirely at variance with its previous legislative history.' "
We concluded that (
"The right to appeal from the decision of the board of canvassers is purely a statutory one, which the legislature may withhold or give on such terms and conditions that it deems proper. The statute in question gives the right to contest an election by appeal to the district court only by proceeding as therein specified. Compliance with such proceeding is a prerequisite to the acquisition of jurisdiction by the court to hear the contest; that is, to the perfection of the *329
appeal. Or, in other words, if the appeal is not taken in the manner and within the time required by the statute, the court acquires no jurisdiction. [Citing cases.] In the last case cited [Duryea v. Sibley,
"* * * the filing and serving of the notice are equally a part of the proceeding by which an appeal can only be taken. This court having repeatedly held that the filing of the notice within the time limited is mandatory and jurisdictional, it follows that the service of the notice is also mandatory and jurisdictional."
Sustaining that principle, the trial court also cited 29 C. J. S., Elections, § 256, 20 C. J., Elections, § 278, and M.S.A. §
Contestant has cited and heavily relies upon Walden v. Calef,
Strom v. Lindstrom,
Assuming that contestant's notice of contest can be interpreted as a petition under the provisions of §
"This contest is not one to challenge the number of votes cast for the contestee, nor the legality of the votes, but is a contest to disbar and disqualify the contestee from holding the office because of a violation of the Corrupt Practices Act." Yet, in his notice of contest, he asked "that contestant have judgment that he is the duly elected judge of said court." *331
The following quotation from 15 Cyc. 399, provides an appropriate finality to the issues we have discussed:
"The intention of the contested election laws is to furnish a summary remedy and to secure a speedy trial, that the title to the office in dispute may be determined before the official term expires in whole or in large part, and that the will of the people may not be defeated in the choice of their officers. Consequently the statutes generally provide that any one desiring to contest an election must file a notice and statement of the grounds of contest within a certain number of days after the election, or the official declaration of the result. These statutes are mandatory and a strict compliance with them is jurisdictional. The notice and statement required to be served by the contestant on the contestee constitute the predicate upon which the power of the court is set in motion, and unless served within the time required by the statute the court has no jurisdiction to hear and determine the contest."
3. The conclusion is inescapable that contestant has not met the requirements of either §
Order affirmed.
Concurrence Opinion
I concur in the majority opinion. Contestant did not proceed pursuant to §
"The authority of courts to entertain election contests is purely statutory. Absent statutory authorization, the courts are without jurisdiction to hear and determine election contests." Johnson v. DuBois,
"The right to appeal from the decision of the board of canvassers is purely a statutory one, which the legislature may withhold or give on such terms and conditions that it deems proper." Odegard v. Lemire,
The legislature has wisely provided a summary and strict procedure to avoid intolerable delay in the adjudication of election contests.
In fairness to contestant and his counsel, it is to be acknowledged that our statutes leave much to be desired as to clarity in the designation of a proper election contest procedure.
Concurrence Opinion
I concur in the special concurring opinion of Mr. Justice Matson.
Concurrence Opinion
I concur in the special concurring opinion of Mr. Justice Matson.
Dissenting Opinion
This proceeding is one to contest the election of a candidate declared elected district judge, upon the ground of serious violation of *333
the corrupt practices act. M.S.A. §§
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 §
Section
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. *335
In Hanson v. Village of Adrian,
"* * * The notice of contest was filed within the prescribed time and thereby the court obtained jurisdiction."
In Miller v. Maier,
"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,
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 §
Likewise, there was no repeal of the provisions in §
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,
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 *337 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.
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,
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 *338 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,
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.
Dissenting Opinion
I concur in the views expressed by Mr. Justice Peterson. *339