I agree generally with the dissenting opinion of Judge Richards filed herein, and besides dissent from the majority opinion for the following reasons:
Our statutes on contests of election are found in *Page 167 chapters 47 to 52, inclusive (section 981 et seq.). Chapter 51 (section 1006 et seq.) applies to state officers, and chapter 52 (section 1020 et seq.) applies to contested elections of county officers, chapter 47 (section 981 et seq.) being general provisions applying to all elections, and all these chapters appearing in the Codes of 1924, 1927, 1931, and 1935. Chapter 47 contains section 986, which reads as follows:
"All the provisions of the chapter in relation to contested elections of county officers shall be applicable, as near as may be, to contested elections for other offices, except as herein otherwise provided, and in all cases process and papers may be issued to and served by the sheriff of any county."
The Code of 1897 contains section 1203, and that is carried into chapter 52 of all the Codes since the Code of 1897. Section 1203, Code 1897 was editorially divided in the new Code as sections 1024-1026, and hence stand now as they stood in the Code of 1897. The provisions as to commencing a contest for county office is that the contest must be filed within the time fixed by statute with the county auditor; the contestant must file a bond conditioned to pay all costs in case the election be confirmed, or the statement be dismissed, or the prosecution fail. When the auditor is a party, the clerk of the district court shall receive such statement and approve such bond. By section 1022 of chapter 52, the county auditor is made the clerk of the contest court. There can be no court until it is assembled; i.e., has been appointed and organized. But section 1203 provided in what is now section 1025 that the contestant must also file with the county auditor a bond, to be approved by said auditor, conditioned to pay all costs in case the election be confirmed, or the statement be dismissed or the prosecution fail.
In a contest of a state office, the statement is filed with the secretary of state. The secretary of state, like the county auditor, is made clerk of the court. Also, like the county auditor, he has an alternate person who may act in case he is a party to the contest. A bond is required in both contests, and it must be filed and approved in both state and county contests, else we give no force to the provisions of section 986, "as near as may be".
There was an abortive attempt to contest this election before the votes had been canvassed; i.e., prior to the time of the *Page 168 declaration of the election of the judges in the district in question. That contest, being filed prior to the declaration, was as if nothing had been done, and stood for nought. The candidate bringing the contest was a judge of the district court; he had besides himself his own attorneys to prepare the papers and file a contest, and undoubtedly they had in mind absolutely the provisions of the statute as these provisions were contained in section 1203 of the Code of 1897, for at that time they filed, not only the claimed statement of contest, but filed a bond. This bond is set out in the abstract in this case, and recites: "That whereas the above bonden, Atherton B. Clark, has heretofore commenced an action contesting the election of Charles J. Haas as Judge of the District Court in and for the Eighteenth Judicial District of Iowa, and has filed such action and contest in the office of the Secretary of State, * * * shall pay or cause to be paid all costs which shall accrue in said action and contest filed in the said office of the Secretary of State, * * * or in any Court or tribunal to which said action and contest may be carried or transferred, then this obligation to be void." This bond is dated the 23d day of November, 1934, prior to even filing of the abortive attempt at contest. Subsequently when the incumbent, Haas, was declared elected by the state board of canvassers, he and his attorney realized that it was necessary to commence a contest, as the prior proceeding was not a contest, and could not be filed prior to the declaration of the election. They did commence a contest then, or thought they did, by refiling with the secretary of state the statement filed in the abortive proceeding.
Conceding that it would have the same force and effect as though a new statement of contest were filed, the question arises, Would the refiling of the bond, without approval, containing the recitations it contained, amount to the giving of a bond? It was recited that the proceedings were then pending. There were no such proceedings pending at the date of the bond; hence there was no bond. The bond bears the date of filing with the clerk appointed by the contest court.
What was the object and purpose of the legislature when it enacted section 1203 of the Code of 1897? It was, first, to fix the time within which the contest must be commenced; and, second, to require the giving of a bond to pay all the costs of the proceedings whatever they might be. Section 986 makes *Page 169 provision for county contests "applicable, as near as may be, to contested elections for other offices." That phrase means something. In this case the secretary of state, when he is not a party, takes the place of the county auditor; costs are incurred the moment that a contest court is ordered. The bond, it seems to the writer, should be given in advance to protect the state; to protect the incumbent against costs; and, in other words, to see that all costs that might be made by the contest were secured. So, without the giving of that bond applicable to the new contest as it stood, and the bond first given was not applicable to this proceeding, then there was no authority for calling a contest court, for the moment that was called costs were begun. The court had to assemble; it had to proceed.
Again, this bond must be approved. By whom? Not by the clerk of the contest court, such as is permitted to be appointed in a contest of district judge, by section 1012, in the contest itself, but by the officer with whom the contest is filed, before the court is formed. Such officer in case of state contest, the secretary of state, or, in the event he is a party, the clerk of the Supreme Court, or, in his absence or inability, the auditor of state, as provided in section 1007 of the present Code.
In the election of county officers, section 1022 provides for a court. It provides that the county auditor shall be the clerk of the court; that, when the auditor is a party, the court shall appoint a suitable person as clerk, whose appointment shall be recorded.
In the county officer contest, chapter 52, section 1024, provides that the contest must be filed with the county auditor; by section 1026 it is provided that, when the county auditor is a party, the clerk of the district court shall receive such statement and approve such bond.
As before pointed out, no new bond was given. The claimed bond, as it appears in the record, is as set out before. So far as these proceedings are concerned, it appears to have been filed only with the contest court on December 20, 1934. This was the clerk appointed by the contest court, not the clerk appointed by the statute, the secretary of state. There was then no authority to call the court, until the bond had been filed; then there is no bond in this case filed with anybody who had power to accept it or power to approve it.
These views find support in Wilson v. Matson, *Page 170 110 Neb. 630, 194 N.W. 735. The statute of Nebraska in reference to the contesting of elections was as follows:
"The contestant shall file in the proper court, within twenty days after the votes are canvassed, a complaint, setting forth the name of the contestant, and that he is an elector competent to contest such election, the name of the incumbent, the office contested, the time of the election, and the particular causes of contest, which complaint shall be verified by the affidavit of the contestant that the causes set forth are true as he verily believes. The contestant must also file a bond, with security to be approved by the clerk of the court or county judge, as the case may be, conditioned to pay all costs in case the election be confirmed, the complaint dismissed, or the prosecution fail." Comp. St. Neb. 1922, section 2070.
It will be observed that in the Nebraska statute the contestant shall file a contest in the proper court within twenty days after declaration of the canvass. The statute then describes how it shall be verified, and then says: "The contestant must also file a bond, with security to be approved by the clerk of the court or county judge, as the case may be, conditioned to pay all costs," etc. That in substance is our statute section 1203, as it stood in the Code of 1897, and in the present Code. And under this statute it was held that, not only must the complaint or statement of contest be filed, but that the bond must be filed, and that is mandatory, and it must be filed within the time fixed; i.e., the filing of the complaint. Our statute provides "must also file with the county auditor a bond" (section 1025) conditioned exactly as in the Nebraska statute. In fact, it is the exact language in the two statutes.
If the proper proceedings were not had with the secretary of state, i.e., the filing of a complaint and a bond, then there was no authority to call the court, because these were conditions precedent to the calling of the court, and there was no bond in this case filed with one who had power to accept it or power to approve it.
True, our statute in section 1009 says, upon the filing of such statement, the Chief Justice of the Supreme Court, or the Governor, as the case may be, shall select the membership of the court to try such contest, and shall immediately certify such selection to the court. But there must be a contest initiated, *Page 171 and if the bond is necessary, and I think it is, there was no authority, if we give any effect to the words which import the county contest law into all contests, then the proper preliminary steps to calling the contest court, did not exist.
So giving effect to the phrase "as near as may be", it is the state officer who approves the bond; the state officer who receives a statement of contest. It is not received by him as clerk of the court, but as such state officer, because of the provisions of the county contest chapter. So, on the whole, I am of the opinion that no contest court was ever legally organized; that no bond was ever in proper time filed and approved provided to pay costs of this proceeding, and hence that the writ should be sustained.