State ex rel. Craig v. Woodson

31 S.W. 105, 128 Mo. 497, 1895 Mo. LEXIS 47

• Court: Supreme Court of Missouri
• Decided: May 21, 1895
• Status: Published

Opinions

Sherwood, J. —

Enos Craig received his certificate of election as clerk of the county court of Buchanan county in November, 1894, it having been ascertained by the votes cast up and counted that he had received one more vote than Nash, his opponent and competitor for that office. In due time thereafter, Craig. received his commission from the governor, and, having qualified, etc., according to law, on the seventh of January, 1895, he took possession of the office in which he has ever since continued performing the duties thereof.

Nash in due form contested the validity of Craig’s election, and thereupon such proceedings were had as resulted in a judgment in the contestant’s favor on the nineteenth day of February, 1895, in the Buchanan circuit court, that court, pursuant to the provisions of section 4707, Revised Statutes, 1889, adjudging that Nash was duly and legally elected clerk of the county court aforesaid, and ordering that Craig should give up the office to Nash, and deliver to him, the books, etc. Upon this, Craig filed his motions for a new trial and in arrest, both of which were, on the second of March, 1895, denied, and Craig then filed his affidavit for an appeal, which was allowed.

On the fourth of March next thereafter, Craig appeared in court and asked the court to fix the amount of his appeal bond, and, on its being ascertained that the accrued costs were about $1,000, and those likely to accrue would be some $200 more, the court fixed the amount of the appeal bond at $2,400, a sum considered to be double the amount of the certain and contingent costs.

On the next day, however, the. attorney for Craig appeared and tendered a bond in the sum afoi'esaid, but containing conditions applicable to bonds in ordinary appeals to this court, as specified in section 2249, Revised Statutes, 1889, and not such as provided for in section 4744. But the trial court refused such a bond and, on the attorney professing his ignorance of how to prepare a bond conditioned as provided in the section last named, kindly proffered its assistance and dictated a bond as required in that section.

The conditions of the bond thus dictated and accepted by the court were as follows: “That said appellant, Enos Craig, shall prosecute his appeal with due diligence to a decision in the said supreme court, and shall pay all costs that have accrued, or that may accrue, in said cause.”

Those of the bond rejected were these: “The said appellant, Enos Craig, shall prosecute his appeal with due diligence to a decision in the appellate court, and shall perform such judgment as shall be given by such court, or such as the appellate court may direct the circuit court to give, and if the judgment of such court, or any part thereof, be affirmed, shall comply with and perform the same so far as it may be affirmed, and pay all damages and costs which may be awarded against the appellant by any appellate court, and pay all costs accrued and to accrue in said cause.”

On the fourth of March, the day next preceding that on which the appeal bond of Craig was accepted, Nash served on Craig a certified copy of the judgment of ouster rendered some three weeks before that, and then Nash presented a copy of said judgment to the county court and also a good and sufficient bond, and requested its approval of the same, but that court deferred the matter until the following Wednesday, March 6, when Nash again offered and renewed his request for the approval of his bond, but without effect.

On the next day, March 7, Nash took the oath of office as clerk, etc., and had the same recorded as provided by law, and, having done so, on the same day moved the circuit court for an attachment against Craig to enforce the order made in the cause and bottomed upon the judgment aforesaid, for the delivery by Craig of the office, papers, etc., to Nash. This motion of Nash’s was granted, and the attachment issued, made returnable on March 11; but, prior to that date, to wit, March 9, certain judges of this court granted a rule against A. M. Woodson, judge of the circuit court, as well as against Nash, commanding that they show cause why a writ of prohibition should not issue as prayed by relator Craig.

On March 8, after having recorded his oath of office, Nash again appeared before the county court and asked that court to approve the bond, but met with failure again, because the county court alleged that a contest for the office was pending.

The foregoing facts thus briefly related form the basis on which rests the salient question in this record, to wit: What was the legal force and effect of the appeal taken, and bond given, by relator Craig?

Section 4707, Revised Statutes, 1889, to which allusion has been made, declares: “In every case of a pending contested election, the person holding the certificate of election may give bond, qualify and take the office at the time specified by law, and exercise the ■duties thereof until the contest shall be decided; and if the contest be decided against him, the court or other tribunal deciding the same shall make an order for him to give up the office to the successful party in the contest, and deliver to him all books, records, papers, property and effects pertaining to the office, and may enforce such order by attachment or other proper legal process.” This section has been the law for about thirty years, and is first found in the Revised Statutes of 1855; page 706, section 56, since which time it has remained unchanged. Q-. S. 1865, p. 66, sec. 53; R. S. 1879, sec. 5529.

Under the law as orginally enacted, no appeal lay from the. judgment rendered, and the “decision” of the trial court was, consequently, absolute and final. The contest at that time was most certainly “decided” by the trial court, and no other court could, at that time, after rendering judgment against the certificate holder, make the order to him to give up the office, books, etc., to the “successful party in the contest.” Afterward, however, the right of appeal was granted in such cases, whereby an appeal was had from the county court to the circuit court, where a trial was had de novo, and appeals were allowed from the circuit court to the supreme court, but in neither case was a bond to be given except for the payment of costs, and in the case of an appeal from the judgment of the county court, the appellant’s bond had to contain a condition that he would “prosecute his appeal with due diligence to a decision.” The bond in the circuit court, however, as to cases tried there in the first instance, contained no such condition. Laws, 1867, p. 114; Boggs v. Brooks, 45 Mo. 232.

Section 6 of the act just referred to made provision for the issuance of writs of error from the decisions of the circuit courts in such cases, as in any other civil proceeding, and section 7 of the act also contained a provision that when an appeal should be applied for, at the time of the judgment or decision, no steps should be taken or proceeding had to enforce such judgment, etc., until the time for taking such appeal had lapsed. Thus clearly implying that if the application for an appeal were not made at the time of judgment rendered, there would be no barrier to the issuance and enforcement of a proper writ in favor of the contestant.

But it is needless further to discuss the act of 1867, since several of its provisions have been eliminated by the revision of 1879, which in section 5560 (now section 4744, R. S. 1889) declares that: “In all cases of contested elections the right of appeal shall exist, and appeals may be taken in the same time or manner and to the same .courts as is or may be provided by law with respect to appeals in ordinary civil actions; and writs of error shall lie in such cases as in civil actions. In every such case of appeal a bond with sufficient sureties shall be given, conditioned for the payment of the costs accrued and to accrue in the cause; and a new bond shall be given when required by any court in which the cause may be pending.”

And this elimination doubtless occurred by operation of section 3160, Revised Statutes, 1879, now section 6606, Revised Statutes, 1889, providing that: “All acts of a general nature, revised and amended and reenacted at the present session of the general assembly, as soon as such acts shall take effect, shall be taken and construed as repealing all prior laws relating to the same subject; but the provisions of the Revised Statutes, so far as they are the same as those of prior laws, shall be construed as a continuation of such laws, and not as new enactments.”

But could we regard section 7 of the act of 1867 as still in force, despite the revision of 1879, relator certainly can not take any advantage from that section by reason of the fact that he made no “application for an appeal * * * at the time of the judgment or decision,” so that even under that section, treating it as still in force, it was perfectly competent for Nash to do as he did do in moving for an attachment against relator though the time for taking an appeal had not elapsed.

However, as already stated, that section has been' revised out of the statute, and consequently can no longer be made the basis of reasoning favorable to relator, even if applicable to his method of procedure in regard to his appeal.

And farther in regard to the revision of 1879, it may be added that section 3160 is but declaratory of a well established rule of construction, that: “A revision is intended to take the place of the law as previously formulated. By adopting it the legislature say the same thing, in effect, as when a particular section is amended by the words ‘so as to read as follows.’ The revision is a substitute; it displaces and repeals the former law as it stood relating to the subjects within its purview. Whatever of the old law is restated in the revision is continued in operation as it may operate in the connection in which it is re-enacted. * * * The reasonable inference from a revision is that the legislature can not be supposed to have intended that there should be two distinct enactments embracing the same subject-matter in force at the same time, and that the new statute, being the most recent expression of the legislative will, must be deemed a substitute for previous enactments, and the only one which is to be regarded as having the force of law.” Sutherland, Stat. Constr., sec. 154.

Taking the view, then, already announced, it is proper to consider the meaning of sections 4707 and 4744, already set forth, when placed in juxtaposition and considered, as they must be, in connection with, and in interpretation of each other.

As before stated there can be no doubt that under the terms of section 4707 as it originally stood, the “contest” was “decided” in the circuit court, for no appeal then lay from the “decision.” This being the case, the question now presented is, what force and effect does section 4744 have on section 4707. It is claimed by counsel for relator that the word ‘■’■decided'1'1 means that the “controversy is at an end.” But that this is not the meaning of the word is obvious from these considerations: That unless the controversy were at an end, to wit, a final judgment therein reached and rendered, no appeal would lie, and consequently the certificate holder would be without remedy, because the same rule holds as to appeals as to writs of error at common law, that nothing short of a final judgment will authorize the invocation of relief in an appellate court. 1 Freeman on Judgments [4 Ed.], sec. 16 and cases cited; 1 Am. & Eng. Encyclopedia of Law, 617, tit. Appeal. In order to warrant an appeal there must be a decision by a judicial tribunal. Elliott, App. Proc., sec. 15. “An attempt to appeal before final judgment will be fruitless.” Ibid., sec. 243.

A judgment or decree is final when it terminates the litigation between the parties on the merits of the case, and leaves nothing to be done but to enforce by execution what has been determined. Railroad v. Express Co., 108 U. S. 24.

And a contest can hardly be said to be undecided wherever a final judgment has been rendered. And this position gains additional strength when we consider that by the terms of section 4707,as originally enacted and as at present worded, the same court that decided the contest enforced its order by attachment. Have the words of the section been robbed of their original signification? If so, how has this been accomplished? As there is no intimation in the section that an appellate tribunal is to enforce the order as made by the trial court, as the duty of the appellate tribunal is simply that of affirmance or reversal, it seems too clear for dispute that the court of first instance that awards the attachment, must have decided the contest and vice versa.

Now, if the contest is “decided” whenever final judgment is rendered by the circuit court, then, according to the very terms of the section under review, the right of the certificate holder to exercise the duties of the office only lasts “until the contest be decided,” provided it “be decided against him.” At that juncture he must surrender the office and its appurtenances to the “successful party in the contest” unless he can continue to hold the office through the means furnished by section 4744. But it can not fail to be observed that that section grants no supersedeas as to anything appealed from except as to costs. This being ascertained, it must needs follow that the judgment rendered must remain unaffected by the appeal taken. This upon the familiar principle that “the enumeration by a statute of persons or things to be affected by its provisions amounts to an implied exclusion of others. * * ’ * When a statute specifies the effects of a certain provision, courts will presume that all the' effects intended by the lawmaker are stated.” Sutherland, Stat. Constr., sec. 327. Here, affirmative specification excludes implication. Maguire v. Savings Ass’n, 62 Mo. loc. cit. 346.

The right of appeal in civil actions was unknown to the common law; it is regulated wholly by statute. 3 Black, Com., 402. It had its origin in the civil law. 1 Am. & Eng. Encyclopedia of Law, 616. Being statutory in its origin, it is essential to the exercise of the right that the statute be strictly pursued. And where, as here, the statute lays down the condition of the bond, and declares that “in every such case of appeal a bond, etc., shall be given,” it implies a negation that ivithout such bond no appeal lies, and it implies, also, with equal force of necessary implication that other conditions to effect other ends are ineffective, and inadmissible.

That such was the legislative intent as contained in section 4744 is apparent froto another consideration, to wit: That the legislature, when providing for appeals from circuit courts in other civil cases, prohibited the appeal from operating as a supersedeas except on condition that the appellant “enter into a recognizance to the adverse party, in a penalty double the amount of whatever debt, damages and costs, or damages and costs, have been recovered by such judgment, together with the interest that may accrue thereon, and the costs and damages that may be recovered in ally appellate court upon the appeal, conditioned that the appellant will prosecute his appeal with due diligence to a decision in the appellate court, and shall perform such judgment as shall be given by such court, or such as the appellate court may direct the circuit court to give, and if the judgment of such court or any part thereof be affirmed, that he will comply with and perform the same, so far as it may be affirmed, and will pay all damages and costs which may be awarded against the appellant by any appellate court.” R. S. 1889, sec. 2249. Thus making a striking contrast between an ordinary appeal and one taken under the election law.

In the former instance the recognizance covers the whole case. It requires the appellant to prosecute his appeal with due diligence to a decision in the appellate court and that he shall perform, such judgment, etc. No such conditions appear in the bond required by the terms of section 4744 of the election law. The absence of such well known provisions and conditions from that section is a circumstance pregnant with significance that the legislature knowing, as they will be presumed to do, the state of the existing law on the subject of appeals in cognate cases (Sutherland, Stat. Constr., sec. 287), purposely omitted such conditions from the election appeal bond, thereby in effect saying that such omitted conditions should have no place in the election law. Besides, the statutes relating to ordinary appeals and to election appeals are statutes uin pari materia” and therefore to be construed together with reference to the whole system of which they form a part. ■. In keeping with this idea, statutes not strictly in pari materia, statutes on cognate subjects, may be brought within range of the construing vision as needed auxiliaries in the work of interpretation. Sutherland, •Stat. Constr.., secs. 284, 288.

Besides, counsel for relator, when they proffered to the lower court a bond conditioned as provided in .ordinary cases, tacitly conceded and confessed that a bond conditioned as provided in the election law would not supersede the judgment rendered against their client.

Again, having determined from section 4744 that no appeal can be allowed in an election contest unless a bond conditioned as required be given, then it -becomes needless to speculate on the effect of a simple appeal taken without bond, since no such case is here presented, nor could be under section 4744. But while on this head it may, however, be remarked that whatever may be the effect of an appeal taken to an appellate .court' where the trial(is to be de novo, an appeal taken ■and operating in the nature of a writ of error or certiorari, does not vacate or suspend the judgment of the Inferior court, nor bar an action on the judgment. Railroad v. Atkison, 17 Mo. App. 484, and cases cited; Lewis v. Railroad, 59 Mo. 495, and cases cited.

And it has been ruled in an election contest that though a supersedeas bond be filed, yet it will avail nothing against the successful contestant because there was no express provison of the statute authorising a suspension of the judgment, in such case, although there were in the statutes the usual general provisions respecting a stay on appeal taken, the court remarking that “the provisions for supersedeas are not as broad as those for the review of judgments on error.” State ex rel. v. Meeker, 19 Neb. 444; State ex rel. v. Mayor, 44 N. W. Rep. (Neb.) 90.

In Jayne v. Drorbaugh, 63 Iowa, 711, it is said: “When it has been determined * * * in a proper proceeding, that a person is entitled to the possession of a civil office to which he claims to have been elected by the people, an appeal * * * should not have the effect to deprive such person of such office, pending the appeal, unless the statute in terms so provides.” See, also, People ex rel. v. Stephenson, 98 Mich. 218.

In the case at bar it will be remembered that not only is there no such express provision, but, as before stated, section 4744 excludes, by inevitable implication, any such effect being given to the bond required.

Counsel for relator have cited the case of Grelle v. Pinney, 62 Conn. 478 as being directly in point as showing that an appeal in a contested election case operates as a supersedeas, but this is so ruled because “section 1134 provides that after such appeal execution shall be stayed until the final determination of the cause.”

Furthermore, when a judgment of ouster is rendered, whatever may be the form of procedure, whether by quo warranto or information in that nature, or some special statutory method, the result reached is the amotion of the then tenant of the office, and the party thus ousted is divested of all official authority so long as the judgment remains in force. High, Extr. Leg. Rem. [2 Ed.], secs. 756, 746, and cases cited. Such judgment is self-enforcing. Welch v. Cook, 7 How. Pr. 282; McVeany v. Mayor, etc., 80 N. Y. 185; State ex rel. v. Meeker, 19 Neb. 444; Mechem, Pub. Off., sec. 497; State ex rel. v. Johnson, 40 Ga. 164.

And when a judgment is self-enforcing, a supersedeas does not alter the state of things created by the judgment from which the appeal is prosecuted. Elliott, App. Proc., sec. 392, and cas. cit. This doctrine finds striking illustration in a case where a judgment suspended an attorney from practice, and it was ruled that the judgment executed itself, except as to collection of costs and that granting a sxspersedeas only suspended the right of such collection and did not allow the attorney to practice pending the appeal. Walls v. Palmer, 64 Ind. 493.

In Mayor, etc., v. Shaw, 14 Ga. 162, where. Shaw, the marshal of Macon, had been removed by the mayor and council on charges preferred, it was held that a writ of certiorari did not reverse that judgment, nor supersede the execution of it.

And in State ex rel. v. Meeker, supra, it was ruled that where an officer has been removed for misconduct by a county board, that the removal by the judgment of ouster having been accomplished, the filing .of a supersedeas bond did not reinstate the removed officer.

For the reasons aforesaid, we hold that the appeal taken and bond given by relator, after judgment of ouster pronounced against him, did not vacate, supersede or in any manner affect that judgment, and therefore the trial court very properly issued an attachment against him. In consequence of this view, we deny the writ of prohibition.

G-antt, Maceaelane, Bubgess and Robinson, JJ., concur. Bbace, 0. J., and Babolay, J., dissent.