Seeley v. Killoran

| Minn. | May 19, 1893

Collins, J.

This was a proceeding to contest an election for a county office, and. was dismissed by the District Court upon the ground that notice of appeal from the decision of the county canvassing board had not been entered with the clerk of said court within twenty days after the day of election, as provided by Laws 1891, ch. 4, § 76. In the case of Baberick v. Magner, 9 Minn. 232" court="Minn." date_filed="1864-07-15" href="https://app.midpage.ai/document/baberick-v-magner-6641588?utm_source=webapp" opinion_id="6641588">9 Minn. 232, (Gil. 217,) it was held that the statute then in force — the act of March 12, 1861 — provided hut one way of instituting an election contest, and that was by appeal to the District Court from the decision of the board of canvassers, as provided by Laws 1861, ch. 15, § 31, and that, unless an appeal was taken by notice thereof entered with the clerk of the proper District Court within twenty days after the day of election, the court acquired no jurisdiction whatever of the proceeding.

The sections of the act of 1861 which related to the question then before the court were section 31, before mentioned, and sections 49 and 52, which authorized and provided the method for conducting the contest. The corresponding sections in the Revision, 1866 G. S. ch. 1, were §§ 29 and 49. Section 29 provided for the entry of a notice of appeal with the clerk of the court within twenty days from the day of election in case of a contest, while section 49 specified the method to be pursued in prosecuting the contest. The only material change effected in the original sections by the Revision of 1866 consisted in an omission from section 29 of the provision found in section 31 of the act of 1861, relating to an appeal to the proper branch of the legislature from a decision of the canvassing board relative to the election of senators and representatives. This was so declared in Borer v. Kolars, 23 Minn. 445" court="Minn." date_filed="1877-03-27" href="https://app.midpage.ai/document/borer-v-kolars-7963296?utm_source=webapp" opinion_id="7963296">23 Minn. 445, in which the necessity of entering a notice of appeal with the clerk of the court under the provisions found in the Revision of 1866 was considered, and it was held that sections 29, 46, and 49 of chapter 1 of the Revision sustained the same relation to each other as did the corresponding sections in the act of 1861, and also that the construction given to the latter in Baberick v. Magner, must govern when construing the latter. The order appealed from, dismissing the proceeding because notice had not been entered within twenty days as provided for in said section 29, was affirmed.

In the statute which controls this case we find similar provisions, (Laws 1891, ch. 4, §§ 76, 91, 95.) Section 76 is substantially a re-enactment of section 29 of the Revision, and provides that at the close of the labors of the canvassing board it shall declare the person having the highest number of votes for any county office duly elected, subject to an appeal to the District Court of the proper county, and that, in case of an appeal, notice thereof must be entered with the clerk of said court within twenty days after the day of election; while sections 91 and 95 are substantially. re-enactments of sections 46 and 49 of the Revision of 1866, authorizing the contest, and providing the course of procedure. There is nothing elsewhere in the general election law of 1891 which suggests that it was the intention of the legislature to confer jurisdiction upon the District Court in contested election cases instituted under that law, except as prescribed in section 76; and similar statutory provisions had theretofore been, construed by this court as going to the jurisdiction of the court to entertain the case at all. The provisions of the act of 1891 in reference to contests must be construed with reference to decisions upon like enactments. The reasoning in Borer v. Kolars, supra, completely covers the main points made on the appeal, and cannot be improved upon.

Relator’s counsel argue that the words in section 76, “within twenty days after the election,” should be construed as meaning within twenty days after the result of the election is officially declared by the board of canvassers, because of a provision providing for an adjournment of the board from day to day for a period not exceeding ten days. To disregard the plain language in section 76, and give it the construction asked for by counsel, would be the rankest kind of judicial legislation. It is not capable of any such interpretation.

The District Court failed to acquire jurisdiction of the contest, and its order dismissing was correct.

Order affirmed.

Vanderburgh, J., absent.

(Opinion published 55 N.W. 133" court="Minn." date_filed="1893-05-19" href="https://app.midpage.ai/document/temple-v-norris-7967886?utm_source=webapp" opinion_id="7967886">55 N. W. Rep. 133.)