dissenting: In the argument on the appeal in these cases it was agreed, in substance, that the question of fact relating to the legality of votes and eligibility of voters raised by the evidence should not be considered, but that the question as to the correctness of the ruling of the judge below in denying the application of the respondents for leave to amend their answer to the notice of contest, should alone be discussed. It was also stipulated by counsel that all of the three cases should be argued and considered together, as they were substantially the same, involving the same questions, and differing only in immaterial details. They will, therefore, be treated* here as one case.
The judge presiding in the second district, who decided the appeal herein by affirming the decision of the court below, not having filed an opinion, and it being uncertain whether an opinion will be filed by Judge Bristol, it appears necessary, in order to lay a foundation for the proper understanding of the reasons which constrain me -to dissent from the decision of the court, to recapitulate briefly the facts of the case.
At the general election, held in November, 1880, in the county of Doña Ana, James W. Soutliwick was declared elected sheriff over Thomas J. Bull, Martin Amador was declared elected treasurer over John D. Barncastle, and Maximo Castefiada was declared elected probate judge over Evangelisto Chaves.
The provisions of the territorial statutes relating to contested election cases, so far as they relate to the time of pleadings, etc., are briefly as follows: The act of 1874 provides that the contestant shall file his notice of contest within 30 days after the day of counting the votes: Laws of 1874, chap. 29 (General Laws, p. 344). The act of 1876 provides that “ the respondent shall file his answers to the notice of contest within thirty days from and after the service of such notice of contest upon him: Gen. Laws, chap. 26, sec. 2, p. 344. The contestant shall file his reply to any new matter set up in the answer, and serve a copy thereof within twenty days after the service of the answer: Gen. Laws, chap. 26, sec. 4, p. 345.
' On December 1, the above-named candidates not declared elected, viz., Messrs. Bull, Barncastle and Chaves, filed notices of contest, and shortly after (December 4 on South wick and Amador, and December 7 on Oastenada), .notice was served on the respondents to answer such notices.
These notices were similar in their character, each averring that a large nuifiber of illegal votes had been fraudulehtly and unlawfully cast, counted and returned for the respondents, praying the court that upon the trial of contest such votes should be stricken from the poll and disallowed, and alleging that when such illegal votes were thus subtracted from the number returned for the respondent, the contestant would be found to be elected by a substantial majority.
In the only one of the cases in which the full record is before me — that of Barncastle against Amador- — -the number of votes thus alleged to have been illegally cast and counted for the respondent is 71, but the number does not differ materially, if at all, in the other cases. For all practical purposes the cases are exactly similar.
It may be remarked here that only in four instances out of tbe 71 does the notice of contest give to the respondent any definite information as to the facts which it was claimed made the vote illegal.
In the case of Francisco Lucero, the allegation is that the voter had been convicted of a felony; in the case of Gregorio Miranda, that he was not a citizen; in the case of Rafael Abalos, that he was not a citizen and was also under age; in the case of Omogon Armijo, that he had not resided in the county and precinct for the required length of time ; but in the other sixty-seven cases the allegation does not particularize any specific cause of disqualification whatever, but enumerates for each- individual of the sixty-seven (using a uniform printed blank for the purpose), every one of the five disqualifications-, known to the law, viz. : that he was an alien, that he was under age, that he had not resided in the territory six months, nor in the county three months, nor in -the precinct thirty days.
In no one '■out of the sixty-seven, so far as the record shows, and as is conceded as matter of fact, was this true; nor was any attempt made to prove it by evidence — the effect of such a kind of statement being, of course, to deprive the respondent of any information whatever as to the real issue to be met in the case of these sixty-seven voters. This was a flagrant and manifest evasion, if not violation of the law, the intention of which is to give the respondent precise information as to the cause of contest, and the objection raised to each vote, in order that he may be ready, in the required time, either to admit or deny the allegations. Such a vicious system of pleading, unless legally objected to, and the notice ordered to be made specific, could only be answered in one way to be effectual, and that was by denying, seriatim, the five allegations thus made as to each of the challenged voters.
On the 2éth and 27th days of December, respectively,-the respondents filed their answers as required by the law of 1876, above cited.
These answers, so far as they relate to seventy of the seventj^-one voters referred to in the notice.of contest (the one excepted being Francisco Lucero), are written on printed forms, the first portion of which reads as follows:
“ This respondent denies specifically that at said election held on the said second day of November, A. D. 1880, for the said office of-at the said county of Doña Ana, and at, to wit, Precinct No. —, of said county, certain persons named in contestants’ notice of contest, to wit, —-, and each and every one of them were not then and there citizens of the United States or minors under the age of twenty-one years, and denies that they and each and every one of them had not resided in said territory for a period of six months immediately preceding said election, and denies that they and and each and every one of them had not resided in said precinct No. —, of said county, for a period of thirty days immediately preceding said election, and denies that they and each and every one of them were then and there disqualified by the laws of said territory from being registered as voters and from voting at the said election.”
' It will be observed that this specifically denies each allegation with regard to each voter, except that which states that he “ had not resided in said county of Doña Ana for a period of three months immediately preceding said election".”
The answer then goes on to charge that various illegal votes had been cast and counted for the contestant, using a printed blank for the purpose, and the charge in most cases in the same general and improper manner adopted by the contestant.
On the sixth day of January, 1881, the contestant filed .and served his reply, in which, after specifically denying all the new matter in the answer, he says that “ a certain material fact in and by said notice of contest, specifically alleged and charged, to wit, that at said election so held at said county of Doña Ana, on the second day of November, 1880, for the the office of treasurer, certain persons, to wit: (naming the.m) did each and every one ■ vote ■ for the said respondent for said office of treasurer, and that they and each of them had not then and there resided in the said county of Doña Ana for a period of three months immediately preeeding said election, is not by the said answer specifically denied or attempted to be denied,” and, therefore, prays that said alleged fact be taken as confessed. On the seventeenth day of February, 1881, the respondent filed an amended answer, verified by Mariano Barela, containing the specific denial omitted in his original answer, and to the omission of which attention was drawn by the language just quoted from the reply of the contestant; with a motion for leave to file such amended answer. The judge set down the motion for hear, ing on February 21, at Chambers at Mesilla, where an extended argument took place, and the court, after consideration, overruled and denied the motion for leave thus to amend.
It is conceded that this decision was not made as an exercise of the discretionary power of the judge as to allowing amendments, but upon the distinct ground that the judge possessed no power or discretion in the matter; to use the language of the learned judge in his written opinion, that the statutory provisions “ are really statutes of limitation taking from the judge all discretion as to extending the time.” Counsel for the respondents stated in their argument on.appeal that it was on account of the early announcement of this opinion of the judge, that they did not then present the affidavits which they had prepared, explaining the clerial error in their original answers and the reason for the lapse of time before their application to amend, which affidavits were only appropriate or useful if the subject was considered within the discretion of the judge.
An order of reference having been made, the respective parties thereupon-commenced the taking of proofs before the master; and in the course of the proceedings the respondent insisted on introducing evidence in support of the legality of the sixty-nine votes called in question by the notice of contest and affected by the omission of the clause as to -ninety days’ residence in the printed blank used by respondents in their answer. This was objected to by the contestant on the ground tha-t the respondent, by failing to deny the allegation' of the notice as to the ninety days’ residence of those voters, had admitted the truth of that allegation; that the fact thus alleged and not denied was under the law to “ be taken and considered as true,”, and hence that the subject of the legality of those votes was settled, and not subject to be changed by proof. The evidence as to the residence of these voters was then taken by the master, subject to the objection, and reported to the judge.
On the final hearing on the 1st of June, 1881, after the coming in of the master’s report, the respondents again moved (having filed the motion, May 24), to be allowed to amend their answer by a denial of the allegation of non-residence, with a request that the amendment be filed mmo pro tuno as of the date of filing the original answer, when it was intended by said respondents’ counsel to include in his said answer the substance and words of this said amendment.” This was supported by the affidavit of Col. Kynerson, one of the counsel for the respondents, setting forth that in his draft of the answer sent to the printer, the denial of non-residence in the county had been properly inserted, but that the printer inadvertently dropped it out in setting up the matter in type, and that the omission was not observed by respondents’ counsel until about the time of the first motion to amend.
After long consideration, the judge refused to allow the amendment, and rendered a decision in favor of the contestant in each case-(December 14, 1881).
The respondents appealed to this court. "While the testimony is very voluminous and the briefs and arguments are of great length, yet the real questions necessary to be decided are few.
1. The respondents held that although their answers did not contain any specific denial of the allegation relative to residence in the county, yet as they did contain a denial that the voters in question “ were then and there disqualified by the laws of said territory from being registered as voters and from voting at said election,” that this general denial of disqualification put in issue every separate allegation of cause of disqualification, and brought up the whole question to be determined by the proofs as fully as if every separate allegation had , been distinctly, separately and specifically negatived.
In this I think the respondents are wrong. The case in 31 Cal., 185 (Fish v. Redington), and others cited by counsel, seem almost conclusive as to this; but apart from any authorities I should have no doubt on the point. The law distinctly says that “ any material fact alleged in the notice of contest, not specifically denied by the answer, shall be taken and considered as true.”
The object of the law is, evidently, to frame a distinct issue as to each vote called in question.
The notice of contest is to state distinctly the ground of objection, and the answer is to deny the same specifically, or else'it will be taken as confessed.
It is true that, in this case, the contestants disregarded or evaded the law, by not specifying in sixty-seven instances any particular ground of objection; but this fault should have been remedied by application to the court to have the notice made more definite. "When the respondents answered they waived the impropriety of form, and subjected themselves to answering the notice just as it was. The law, in terms, requires a specific denial of each allegation, and no general denial could take the place of the specific denials required. Were this so, every contestant would simply deny, in general terms and in bulk, all the allegations contained in the notice, and thus the clear and distinct issue which the law was intended to provide for would be lost. It is plain, therefore, that under the pleadings (notice and answer) as they stood at the time of the reference — unamended—the respondents had no right to introduce evidence as to the county residence. That was not at issue, but by the default of the respondents was to “ be taken and considered as true.” If the judge had committed error in not allowing them to amend by inserting the omitted clause, their rights were all preserved by an appeal.
2. The respondents claimed that inasmuch as this was a kind of proceeding in which the people at large had an interest, no default or neglect on the part of the respondent could obviate the necessity of the case of contestant’s being actually proved by evidence before the master.
In this, also, I think, they were in error. The object of the law, as before said, was to frame distinct issues as to each vote called in question The notice might charge A with being an alien, B with being under age, C with not being registered, etc., etc.
On examination, the respondent might discovei that the charge against B was correct. He would then deny, specifically, the allégation respecting A and 0, but by silence admit the truth of that relating to B.
In such case, it would, obviously, be unnecessary to produce testimony as to B. No issue as to him is presented’. It is conceded that his vote was illegal. So the law says very properly that in such cases the fact thus admitted by lack of denial “ shall be taken and considered as true.”
In this instance the allegation as to non-residence in the comity for the required length of time was uncontradicted and so was “taken as true,” without proof.
This I believe to be the correct rule and practice, and the authorities are to that effect. See Moore v. Sanborin, 42 Mo., 495, etc.
On the case, then, as presented by the pleadings, as they went before the master, I consider that the subsequent proceedings and judgment were regular and correct.
This brings us to the main and vital question involved in the case, viz.: whether the application of the respondents for leave to amend their answer should have been granted; or, rather, whether the court has power in a proper case and in furtherance of justice to grant such an order.
In the instance before us, it is obvious that the omission of a specific denial of this one of the five allegations against the respondents was the result of accident, either from carelessness in writing the manuscript from which the form of this part of the answer was to be printed, or by omission in setting the type from which it was printed. The printed form of answer follows the printed form of the notice, with the exception of this omission; and the five words at the end of the preceding clause “had not resided in said territory.for a period of six months immediately preceding said election ’’ being exactly the same as those of the omitted clause, “had not resided in said county of Doña Ana for a period of three months immediately preceding such election,” made it very natural for the compositor to skip the clause by thinking that he was at the end of the latter’ when really at the end of the former.
But however the mistake occurred, it is not questioned that the respondents intended to deny the allegations of the notice seriatim, as they were stated.
The failure to do so was practically giving up their case in advance.
An answer containing such an omission was equal to no answer at all. The contestant was as fully entitled to judgment oh this one omission, as if the denials of the entire series of allegations in the notice had been omitted, and, of course, no one would intentionally incur the trouble and expense of a protracted litigation on pleadings known to be defective as a foundation.
It was argued by counsel for the contestant that under the • circumstances could the decision of the court below in denying' the motion to amend be reviewed here, because:
1st. If the provisions of the election law are mandatory, then the judge had no power to grant an amendment, and his refusal of course cannot be reviewed; and,
2d. If those provisions are not mandatory, and hence the judge below had power to allow an amendment, then the subject was one of those entirely within his sound discretion— appealing to his judicial conscience — and not subject to revision on appeal.
But in this they ignored a third possible situation, viz.: If the judge below possessed the discretionary power to allow an amendment, but believed that he did not possess it, and consequently denied the motion not in the exercise of his judicial discretion, but distinctly on the ground .that he did not possess any power or discretion at all.
In this last case, the action of the judge would be founded on a mistake of law, and consequently reviewable, and the appellate court in overruling his decision, would simply remand the question to the judge for the exercise of that sound discretion which he had declined to act upon before, because lie believed that he did not possess the power.
The allowal or refusal of an amendment is generally a matter of discretion with the judge to whom the application is made; and had the learned judge below considered this application upon its merits, and decided it in the exercise of his judicial discretion, it is at least doubtful whether this court could have properly overruled his determination on appeal.
On this point the contestants counsel argued ably and fully, producing a long array of authorities to sustain their position, that the execution of this discretion is not reviewable in an appellate court, but I do not think that this question really enters into the consideration of this case; for, as appears from the language of the judge idmself, in his written opinion, and as was conceded by all parties on the argument, the judge denied the motion for leave to amend, not on its merits or in the exercise of his discretion, but on the express ground that the judge in such cases has no discretion at all to-exercise.
His words are, (i these statutory provisions as to time of filing and serving the notice of contest, answer and reply, are really statutes of limitation, taking from the judge all discretion as to 'extending the time.”
This, then, is the real question for consideration, “ whether the judge, before whom an election contest is being tried in a proper case, has a discretionary power to grant leave to amend after the expiration of the time for answering fixed by statute ? ”
There is no doubt that where such power really exists, and a judge declines to exercise it for the avowed reason that he believes he does not possess such power, it is good ground for reversal.
“ Where a judge at circuit has a discretion to allow an amendment of the pleadings, but refuses to exercise it, on the ground of want of power, such refusal is error of law and ground of appeal.” See Russell v. Conn, 20 N. Y., 81, and other cases cited; 1 Wait’s N. Y. Digest, 79; 17 Minn., 296, in analogous.
Before proceeding to examine the question of power, I think it not out of place to remark that in the first judicial district, it has been exercised in various cases since, the enactment of the existing law, and without a single suggestion by counsel, even in contests exciting much public interest, that there was doubt of the existence of such power, or the propriety of its exercise.
Thus in the case of Santos Munes v. Juan Sanchez, which was one of the so called “ Taos election cases,” which created some excitement in 1879, the notice of contest was filed December 11th, the answer was not filed till February 11th, the time having been extended by consent; on February 28th a replication was filed ; and as late as April 9th notice was given by the respondents of a motion to amend their answer by inserting new matters. It was not opposed, although the case was being strongly contested, and an order was made granting the leave, yet the amendment was a very material one, involving no less than 107 votes in ten different precincts, which were then for the first time alleged to be illegal. This was of course a far stronger case than that now in question, in which simply a denial, obviously omitted by accident, was to constitute the amendment, but it is only referred to as showing that the power of the judge, in the execution of his judicial discretion to allow such an amendment, had not been doubted hitherto in the first district.
The'territorial statutes relative to election contests contain nothing whatever as to amendments.
It is at least very doubtful whether the liberal provisions of law relative to amendments in ordinary civil cases, which have existed in this territory for. over thirty years (see Act 27 of July 12, 1851), apply to a contested election case under the recent statutes. So- that we are compelled to look for guidance to the rules of the common law, and the general principles which should govern such cases.
Much stress has been laid by counsel on the words “ within the time aforesaid” in section 2 of the act of 1876, p. 344, General Laws, and the precise technical signification and power of those words gave rise to a large amount of discussion.
On the one side it was contended that they were “ words of limitationthat they absolutely and irremediably limited the time in which a denial of the alleged facts could be interposed, and that on the expiration of that time there was no power in the courts to extend it or allow an amendment of such denial, no matter how strongly the application might appeal to its sense of right and justice. Though the sickness of the contestant, or the death of his counsel, might have delayed the filing of the answer; though the messenger charged with it might have been waylaid on his journey; though by accident, or fraud or collusion, some material words might be omitted from it; though evidence of gigantic iraufi might ■ be discovered the day after the expiration of the twentieth day; though it might become patent to all that the will of the people was being disregarded and subverted, yet, according to this view, these words presented such an absolute and positive barrier to any remedial action by the court, that all opportunity for relief was cut off.
On the other hand, it was argued that these words, while they fixed the time in which, in ordinary cases and without the direct action of the court, the answer should be served, and the issues made up, yet that neither by the language used, nor according to the intent and purpose of the law, were they so distinctly mandatory and absolutely prohibitory, as to prevent the court, in a. proper case, in furtherance of justice, and in the exercise of its sound judicial discretion, from allowing an amendment afterwards.
So far as the precise language employed is concerned, it was shown that it does not differ materially from that used in many statutes in various states as to times for pleadings hoth in ordinary cases, and also in election contests, in construing which the courts have held not only that the limitation did not prohibit the allowance of an amendment in furtherance of justice, but that the time might be extended in a proper case and for good cause shown, for the filing and serving of the entire pleading. Not to go outside of cases of election contests for precedents or illustrations, the case of Dale v. Irwin, 78 Ill., 171, is an important one, and specially so with us, because the statute under which the election contest, which is its subject, was conducted, is quite analagous to ours.
This statute is chapter 46 of the system of laws which, under the new constitution, went into effect July 1, 1872.
Section 113 provides that the persons desiring to contest an election, shall, “ within 30 days ” after the declaration of the result, file with the clerk of the court, a statement in writing, setting forth the points on which he will contest the election.
The election in question was held April 13, 1874, and the “statement” was filed within 30 days. At the October term of the court, the defendant moved to quash the petition, and the motion was granted.
“ Whereup'on the petitioner obtained leave to amend the petition, Avhich was done.” Afterwards, at the same term, ■leave was granted to the. petitioner to amend his amended petition, which was done.
The defendant moved to strike the amended petition from the files, and subsequent to the second amendment, again moved to strike from the files, both of which motions were disallowed.
■ On appeal, the court says, “ The ground assumed by the appellee in his exception to the order .allowing the petition to be amended is, that this being strictly a statutory proceeding, the petitioner should be confined to the points made in his original statement, or petition ; that the proceeding being neither in chancery, nor at the common law, the court had no power to allow amendments of any kind, but should be guided by the statute alone, and as no provision is made therein for amendments, the court was powerless to allow them. * * * We cannot think the position taken by defendant as to the meaning and purpose of this act, tenable or just. If he is right in seeking to confine the contestant to the points contained in his original statement, great injustice might be done in many cases.” And the court sustained the amendments.
It will be observed that in this case the amendments were made five months after the prescribed time had expired, and when the period for actual trial had arrived.
Again, the act of congress as to contested elections (Feb. 19, 1851), provides that the contestant shall, “ within «thirty days after said election, give notice,” etc. Yet the allowance of amendments and of more time to prepare and file this notice are frequent, and in one case (Wright v. Fuller, 1 Bartlett, 112), the true rule of construction was tersely stated as follows: “ This statute shall receive a reasonable construction; one that will carry out and not defeat its spirit and purpose.”
A case very nearly analogous is found in Stevenson v. Lawrence tried in Pennsylvania, in 1862. This was a contested election case, and the question which arose was based on the following language in the statute, being part of the fifth Section of the act of July 2, 1839 : “ The court shall hear and determine such contested election at the next term after the election shall have been held.” On the one side it was contended that no action having been taken by the court at the “ next term ” after the election, its jurisdiction had ceased and its power was gone; that the language was mandatory and imperative, and the limitation absolute.
On the other hand, it was insisted that the provision should be counted to be merely directory, and that there should not be a denial of justice and a disregard of the expressed will of the people at the polls, simply on account of an informality in the method or time of bringing the matter before the court. The decision of the court sustained the latter view, and the following language of the opinion delivered then is so appropriate, that it might almost have been written for this case, and is well worthy to be reproduced here. It was as follows : “ The design of the law is to secure an investigation of a matter in which the citizens generally and the candidate claiming title to the office by election are deeply interested. Questions are involved in such an issue of the gravest importance, affecting alike the highest principles of honesty and fair dealing between man and man, the purity of the ballot box, and the vindication of the elective right of the citizens of the commonwealth; to guard these rights, each of them sacred and worthy of legislative protection, the courts are enjoined to investigate the merits of the case, and finally determine the same according to law. * * * Is the law to be regarded as a dead letter ? A.re the citizens and contestants alike to be turned away and told that the stroke of the clock has paralyzed the arm of the court, and that they must go without remedy for an alleged violation of public and private rights, because that which was not of the essence of the thing to be done had not been complied with by the officer of the law, either with or without cause? I think not. lean gather no such meaning from the act, and can regard the command as to time only in the light of an injunction to the judges to speed the cause, and at the next term, if_ possible, fulfill the material requirements of the law, by finally determining the case upon its merits. Any other view, it seems to me, reverses the natural order of things; prefers the unimportant to the material; gives to the minor consideration, namely, the time within which a decision is to be rendered, precedence of the more substantial and weighty matters of the law under consideration, for, certainly, it is far more essential that the courts shall decide the main question than allow it to fall dead before the judges, who are enjoined to decide upon it finally, and upon its merits, by language quite as explicit as that used to indicate the time within which it ought to be determined Brightley, p. 532. The only words, according to the established rules of construction, which are absolutely prohibitory, per se, are words of negation. Negative words are required in order to make a statute so imperative as to cut off all remedial power of the courts.
Bacon’s Abridgment, vol. 9, p. 234, under the title “ Statute,” states the proposition distinctly, and gives a number of illustrations, among which are the following: If a statute without any negative words declare that deeds shall have in evidence a certain effect, provided particular requisites are complied with, this does not prevent their being used as evidence, though the requisites were not complied with : Jackson v. Bradt, 2 Caines, 169.
“ Though 54 Geo. III, c. 84, enacted that the Michaelmas quarter sessions shall be held in the week next after the eleventh of October, it' is held merely directory, and those sessions may still be held at another time; but negative words would have made the statute imperative Rex v. Justice of Leicester, 7 Bar., etc., 6.
In Dwarris on Statutes, 2d London ed., 417, after laying down this distinction very clearly, and enforcing it by a number of cases, the following example is cited, which seems quite pertinent to the question now under consideration: “ So, where the question was whether an appointment of overseer, made after the expiration of the time limited by a statute for such appointment was valid, it was held to be so, for the statute (43 Eliz., c. 4) ought to receive a liberal construction. Although the statute be introductory of new law, no negative ought to be implied Rex v. Sparrow, Bolt, 11.
Had the language of our law under consideration been, “ within the time aforesaid and not afterwards,” or had it. contained some such provision as, “ and no pleading shall be filed, and no amendment thereto allowed, after the time hereinbefore designated,” the language itself would have been in such form as to have admitted of no question as to its mandatory character. The negative words would have shown that the legislature’s intent was absolutely to prohibit any action after the periods designated, and we should have been precluded from any other construction, however unfortunate such a provision might have been in its results, or however strongly such an imperative limitation might appear to work against the object intended to be accomplished by the law.
For it is the first principle of the legal construction of statutes that courts cannot alter by judicial interposition or construction that which is clear and unambiguous in the law itself. Thus Vattel says, “the first general maxim of interpretation is that it is not allowable to interpret what has no need of interpretation.” Domat expresses the same idea as follows:
“ If the language of a law clearly expresses its meaning and intent, that intention must be carried out ” (sec. 284), and Sedgwick briefly states the proposition, that “ where the statute is plain, no room is left for construction : ” Sedgwick on Statutes, etc., 231, citing Forber v. Blight, 2 Cranch, 358 and 399.
But in the statute in question, no such negative words appear. Those employed are affirmative, and while they certainly direct as to the manner in which the legislature desired the proceedings on the contest to be conducted, yet we are not precluded from considering whether the fulfillment of the intent of the law and the accomplishment of its objects, may not be of such paramount importance as to justify a court in the execution of its sound discretion in allowing an amendment to a. pleading even after the time so designated.
. The object of a law is always the first thing to be considered. Laws are passed by legislatures with the intention of accomplishing something — not of being mere aggregations of words in the statute book, without force or effect. And when that object is clear and obvious, it is unreasonable to suppose that the legislature intended that some provision as to tbe details of the methods arranged for its accomplishment should be so strictly construed as to defeat the attainment of the object itself. This would be making the means paramount to the end, and elevating the form above the substance. Sedgwick says, in examining such matters, the first matter for consideration is “the object to be attained,” the second, “ the means to be employed : ” Const. Stat. Law, 229. And this is but putting into language what is the common sense of the matter, because the object is not selected in order to provide certain means, but the means to carry out the object. The methods prescribed are of no consequence of themselves, they are simply valuable in order to attain the object sought. If they do not succeed in accomplishing that, -they are useless ; if they actually prevent its accomplishment, they are worse than useless. They then cease to be means, and become obstructions.
Now let us apply these suggestions to the law before us. The object of the law as to contested elections is obvious. There is and can be, no dispute about it. It is to carry out the will of the people as expressed at the election, by putting into office the persons really elected. That is its object and ■only object.
To accomplish this, it provides certain methods of procedure ; that an issue shall be framed as to disputed points and submitted to a court, and that in such framing each party shall have a certain time in which to file his statement, etc. These are convenient and proper provisions, looking to the orderly administration of justice in such cases. But these details of practice are not to be construed as of such cast-iron rigidity as to defeat the whole object of the law itself.
Had the power of decision been delegated to a clerk or some ministerial officer, whose authority could extend no further than the simple counting of votes, and declaring a result, there might have been no redress in ease of accident or mistake. But the law very properly provides for adjudication by a court or a tribunal which has the inherent power subject to the limitation of statutes, to allow amendments in furtherance of justice, and to construe uncertain expressions in laws so as to uphold rather than defeat their primary object.
Several cases cited by the counsel for contestant apparently opposed to this view, will be found to refer only to a failure to file and serve the first notice in the case, that which is its initiatory step, in the time specified: Costillo v. St. Louis County Court, 28 Mo., 259; Corbett v. Bradley, 7 Nev., 107, etc. But that is an entirely different proposition, for this particular failure goes to the jurisdiction of the court itself. If the case is not commenced within the prescribed period, then the court has no jurisdiction of it, and it cannot possibly give to itself jurisdiction by any act of its owr — it cannot allow an amendment or grant an extension, in a matter which is not legally before it. at all; but when its jurisdiction has once been gained by a proper commencement of the proceedings, then the court has full power to do whatever is necessary for its proper progress in future.
Again, it was argued, and several authorities were cited to sustain the proposition, that courts should not look with favor on applications to amend made after the time prescribed because the party injured by the defective pleading is in that position by his own fault, laches or mistake, and if he has neglected the proper measures for defense, he must abide the result of his own carelessness; and that in the construction of statutes which prescribe precise and definite times for the performance of certain things, this principle should be applied and a strict construction be adopted.
But this rule, while applying generally to actions between individuals, I think is too narrow to be necessarily followed in cases where far broader and more extensive interests are involved.
In most cases which involve only the rights of the respective parties and affect no one else, a party may lose his rights and remedies by laches, inattention or mistake of law, and this is necessary for the prompt adjudication of questions and is perhaps but a fair and proper penalty for the carelessness of the party or his attorney. He only is interested, and he can by consent or stipulation or default abandon all his rights, as fully as he has power to control, give away or waste his property if he is so disposed.
But there are certain classes of cases which are not simply between the parties appearing on the record, but by which the whole community is affected, and in which it has an interest.
• In divorces, for example, there are questions of public policy and the maintenance of the institutions of society involved, which are considered by the law as paramount, even to the desires of the individuals concerned, and no decree can be obtained by the laches, the default or even the consent or request of the parties alone.
Such a course would be contra bonos mores, would place an institution which lies at the basis of the frame-work of modern society at the mercy of the caprice of individuals, and could not be tolerated for a moment without an entire change in our civilization.
In the case of an election the public interest is even broader.
The official is not elected solely for his own gratification or emolument, but for the public good. The people select him as their chosen representative to perform the duties of a particular position, and it is they who have the primary and greatest interest in the result of the election. In many states the performance of the duties of certain offices is made obligatory on those elected or appointed; they are not permitted to decline to act, and are subject to penalties for a failure to perform the duties.
In no case can an elected officer, by declination or resignation, alter the intention of the people so far as to elect some one else, whom they have not chosen.
It may be broadly stated that the minority cannot elect in any case. Thus, in this country, it is well settled that where it appears that the majority candidate is ineligible, and, therefore, cannot assiime the duties of the office, yet that does .not elect the candidate having the next highest number of votes. It has been evident, by the result of the election, that he is not the choice of the majority, and he cannot be forced into office by the courts after being rejected by the people: Commonwealth v. Cluley, 56 Pa. St., 270; Saunders v. Haynes, 13 Cal., 145; State (Wisconsin) v. Giles, 1 Chand., 112; State v. Smith, 14 Wis., 497; Opinion of Judges, 32 Me., 597; State v. Boal, 46 Mo., 528, etc.
If A and B are candidates for an office, and A receives 300 votes and B 200, A cannot, by declining or resigning, put B into the office. It is not a question between A and B, but one in which the people, who are to elect, have the highest and most vital interest. In such a case, whether A accepts the office or not, it is certain that B is not their choice; and no action on the part of the one individual A can change the expression of the popular will, or put into office a man not elected by the people. And if .A cannot do this by resignation, it is equally obvious that he cannot do it by stipulation or consent, or abandonment, or collusion, or by any act of his own. He is not the electing power, but the whole people of the state, county or district are. The object of a popular election is to ascertain the choice of the people, and the object of laws relating to elections and election contests, is to carry into effect the people’s will, as there expressed.
The language of Chief Justice Field of California, now of the Supreme Court of the United States, tersely states what I believe to be the true doctrine in cases of this nature.
“ The public is interested in a contest of this character; it is not a matter solely between the parties to the record, and the popular will is not to be set aside upon a mere failure of a party to respond:" Slarcy v. Grove, 15 Cal., 119.
From a consideration of the whole subject, I believe that there was no intention on the part of the legislature which enacted our contested election law so to restrict and hamper the action of the courts as to prevent the accomplishment of the great object for which that law was enacted, and to put into office those rejected by the people, instead of those elected. I am satisfied that after the court had once obtained jurisdiction, it had the power, in the exercise of a sound discretion, to do all such things as would tend to a determination of the contest in accordance with the facts; and bring about a judicial result in conformity with the expressed will of the people at the polls. I have no doubt, as the law in terms says (sec. 8) that, “ judgment shall be rendered in favor of the party for whom a majority of the legal votes shall be proven to have been cast at the election,” that when it is shown to a judge that by a clerical error such a judgment is rendered impossible, unless such error be corrected, it is the duty of that judge to entertain an- application to amend such error and decide on such application as the facts shown and the expressed intent of the statute require.
So believing, I think that the learned judge below erred in not considering the motion to amend the respondent’s answer on its merits, and in holding that he had no power or discretion to allow any amendment.
The case, in my opinion, should be remanded to the judge presiding in the third district for the exercise, by him, of his judicial power and discretion in the decision of the motion made by respondents for leave to file their amended answer on the facts as presented on their application.