Summary
In Jenkins v. Hughes, 8 H.L. Cas. 571, the court said words of a technical kind are not necessarily to receive a technical meaning.
Summary of this case from Goodale v. MooneyOpinion
No. 32744
Decided March 19, 1952.
Contest of elections — Court to fix time for trial — Sections 4785-168 and 4785-169, General Code — No date requested within 30 day period — Contesters acquiescing in continuance — Dismissal for lack of prosecution.
In view of the provisions of Sections 4785-168 and 4785-169, General Code, requiring the court in an election contest to fix a time for hearing the contest not more than 30 days after the filing of the petition, contesters who file dilatory pleas to the answer of the contestees, acquiesce in the continuance of the proceeding and fail to request the court to fix a date for such hearing within the time required by statute are not entitled to a reversal of a judgment sustaining a motion to dismiss the contest for lack of prosecution rendered more than 100 days after the filing of the petition, where no action is taken on the merits of the case.
APPEAL from the Court of Common Pleas of Adams County.
This proceeding was instituted in the Common Pleas Court of Adams County by 28 electors of the village of Manchester in that county, under the provisions of Section 4785-166 et seq., General Code, to contest an election on certain local option issues submitted to the voters of Manchester at the general election held on November 7, 1950.
The petition alleged the holding of the election, the announcement of the result and the making of a recount of the ballots cast. It alleged also that a sufficient number of qualified electors were denied the right to vote at the election to have changed the result on several local option issues. The prayer of the petition was for a trial as to the validity of the election on the several issues which had failed to receive an affirmative vote.
The Board of Elections of Adams County and the members of the committee who sponsored and supported the prevailing issues submitted at the election were made parties defendant and contestees in the proceeding. The committee filed its answer to the petition setting up two affirmative defenses: First, that certain ballots offered but not cast or counted at such election were the ballots of persons whose right to vote were challenged and that such challenges were properly sustained by the local election officials, and that subsequent to the date of the election the Common Pleas Court of Adams County in an independent action had permanently enjoined the board of elections from counting such challenged votes, which order had not been appealed from, and, second, that the board of elections had counted certain ballots cast at such election which should not have been counted.
The contesters filed a general demurrer to the defenses in the answer of the contestees. Before any hearing was had upon the demurrer, but more than 30 days after the filing of the petition, the contestees filed a motion to dismiss the proceeding for the reason that the same had not been prosecuted in accordance with the provisions of Section 4785-168, General Code, which requires the court to fix the time for hearing the contest, which hearing date shall be not more than 30 days after the filing of a petition. Almost a month later, the court, without hearing, sustained the motion and dismissed the proceeding for lack of prosecution.
An appeal was taken to this court by the contesters, a motion for leave to appeal having been allowed. The cause was heard in this court on the pleadings and a transcript of the docket and journal entries.
Other facts are stated in the opinion.
Mr. Charles H. Wilson and Mr. Ernest G. Littleton, for appellants. Messrs. Young Young, for appellees.
A determining question presented in this case is whether, in view of the provisions of Sections 4785-168 and 4785-169, General Code, requiring the court in an election contest to fix a time for hearing the contest not more than 30 days after the filing of the petition, contesters who file dilatory pleas to the answer of the contestees, acuiesce in the continuance of the proceeding and fail to request the court to fix a date for such hearing within the time required by statute are entitled to a reversal of a judgment sustaining a motion to dismiss the contest for lack of prosecution rendered more than 100 days after the filing of the petition, where no action is taken on the merits of the case.
Section 4785-168, General Code, is as follows:
"The court shall fix a suitable time for hearing such contest, not less than fifteen nor more than thirty days after the filing of the petition; and shall cause a copy of the contester's petition to be served upon the contestee, or upon the chairman of the committee taking the other side in advocacy of or opposition to any issue, as the case may be, in the same manner as a summons in a civil action. The contestee shall have ten days from the time service has been made upon him in which to answer the relation [petition], and the contester shall have five days in which to reply to the answer of the contestee. All parties may be represented by counsel and the hearing shall proceed at the time fixed, unless postponed by the judge or judges hearing the case for good cause shown by either party by affidavit; or unless the judge shall adjourn to such time, not more than thirty days thereafter, of which adjournment the parties interested shall take notice." (Italics supplied.)
Section 4785-169, General Code, a cognate section of Section 4785-168, provides that an adjournment may be made for not more than 30 days and that "the total of such adjournments shall not exceed thirty days."
The contesters contend that statutes providing a time limit within which courts are required to hear or decide cases are directory and not mandatory, and cite in support of that proposition the cases of James v. West, Admr., 67 Ohio St. 28, 65 N.E. 156, and State, ex rel. Ticknor, v. Randall, Judge, 152 Ohio St. 129, 87 N.E.2d 340. The first-cited case construes an early statute similar in effect to Section 1685, General Code, and the second-cited case construes as directory Section 1685, which provides as follows:
"When submitted on motion or demurrer, or motion for new trial, or when submitted to the court on proceedings in error or on final trial on the issues joined, a cause now pending, or hereafter begun in a court of record in this state, shall be determined and adjudicated within thirty days after such submission."
It must be remembered that Section 1685, General Code, is a part of Chapter 9, Title IV (Judicial Code), comprising provisions applying to courts of record. On the other hand, Sections 4785-168 and 4785-169, General Code, relate to contests of elections wherein the Common Pleas Court acts not in a judicial capacity but in a political administrative capacity, with its authority and procedure therefor specifically authorized and provided by statute. McClintock v. Sweitzer, 138 Ohio St. 324, 34 N.E.2d 781; Link v. Karb, Mayor, 89 Ohio St. 326, 104 N.E. 632; State, ex rel. Shriver, County Engineer, v. Hayes, 148 Ohio St. 681, 76 N.E.2d 869.
The courts have no jurisdiction to conduct an election contest in the absence of statutory authority therefor. State, ex rel., v. Harmon, 31 Ohio St. 250; Link v. Karb, Mayor, supra; State, ex rel. Kautzman, v. Graves, Secy. of State, 91 Ohio St. 113, 110 N.E. 185; Thompson v. Redington, 92 Ohio St. 101, 110 N.E. 652, Ann. Cas. 1918A, 1161; and Williams v. O'Neill, 142 Ohio St. 467, 52 N.E.2d 858.
This court has held that the election statutes of the state must be strictly construed. Williams v. O'Neill, supra; Foraker v. Perry Township Rural School District Board of Education, 130 Ohio St. 243, 199 N.E. 74. Election contests are special and summary in nature, and the procedure prescribed by statute to bring an election contest within the jurisdiction of specified authority must be strictly observed. Williams v. O'Neill, supra; Ingerson v. Marlow, 14 Ohio St. 568. In fact, the only authority which the court has in an election contest is derived from the statutes.
The public interest in having election contests speedily determined requires promptitude. Prompt action in hearing and determining election contests so as to end a status effected by an election contest or to terminate a holdover office-occupancy before a term has wholly or in great part expired seems to be the policy of the law. English v. Dickey, 128 Ind. 174, 27 N.E. 495, 13 L.R.A., 40; Walton v. Olson, 40 N.D. 571, 170 N.W. 107; Whitney v. Blackburn, 17 Ore., 564, 21 P. 874, 11 Am. St. Rep., 857. And a provision for the commencement of the contest within a designated time is usually regarded as mandatory ( Vailes v. Brown, 16 Colo. 462, 27 P. 945, 14 L.R.A., 120) and must be complied with in order to confer jurisdiction in the case. Furthermore, where a contester, before the expiration of the time within which an election contest under a statute must be tried, obtains a postponement or acquiesces in a postponement which carries the case beyond the time limit, he thereby discontinues his contest. English v. Dickey, supra.
The time schedule of the court action in the instant case was, in part, as follows:
Petition filed February 8, 1951; answer filed by contestees February 19, 1951; motion filed by contesters on February 26, 1951, to strike from the files the answer of the contestees, on the ground that it purported to be filed in the name of all the contestees but was in fact filed by only a portion of the members of the committee; entry continuing the action until March 15, 1951, approved by counsel for both parties and signed by the court on March 10, 1951, and filed as of March 15, 1951; demurrer to the second and third defenses of the answer filed by contesters March 15, 1951; motion of contestees to dismiss for lack of prosecution filed May 25, 1951; entry sustaining motion approved May 28, 1951, and filed June 21, 1951.
The contesters filed no reply to the answer of the contestees, contenting themselves with the filing of a dilatory plea which they made no effort to have heard. They apparently acquiesced in a continuance of the cause for more than 30 days after the filing of the petition and allowed the period within which, under the statute, the case must be heard to go by without any apparent effort to have a hearing commenced or completed. Under such circumstances, the court in which the contest was pending had authority to dismiss the proceeding.
The judgment of the Court of Common Pleas is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, MIDDLETON, TAFT and MATTHIAS, JJ., concur