(dissenting.) The provisioñs of the code are not applicable to the election contest proceedings mentioned in sec. 2697 of Sand. & H. Dig. In the absence of statutory proceedings, the remedy for contesting an election is by an information in the nature of quo warranto. Paine on Elections, 856; People v. Stevens, 5 Hill, 616; Gass v. State, 34 Ind. 425; People v. Matteson, 17 Ill. 167; Wheat v. Smith, 50 Ark. 266; McCrary on Elections, sec. 346. Our constitution has required the legislature to designate the tribunal having jurisdiction of election contests of the kind under consideration. The legislature has named the county court as the proper tribunal. They might just as well have created a board, council, or any other tribunal for the purpose. Art., 7, sec. 52, and art; 19, sec. 24, const. Ark. The only jurisdiction conferred upon county courts by the constitution is over matters “that may be necessary to the internal improvement and local concerns of the respective counties. Const, art. 7, sec. 28. So, the county court in determining an election contest is exercising a jurisdiction not conferred by the constitution, and not according to the course of the common law. The proceedings are summary, and the statute conferring such jurisdiction must be strictly construed and pursued. Files v. Robinson, 30 Ark. 487; Sedg. on Const. Stat. & Con. secs. 299-302; EJndlich on Int. of Stat. sec. 158; Wilson v. Fussell, 60 Ark. 194. Had the legislature simply conferred upon the county courts jurisdiction to determine such contests, without prescribing any method of procedure, then these courts would have had the power to adopt their own rules and methods for the disposition of such cases; and they might have adopted such Code provisions as they deemed applicable, or any.other rules of practice, taking care, of course, not to violate fundamental principles. Boring v. Griffith, 1 Heisk. 456. But, the legislature having prescribed a method of procedure amply sufficient for the determination of such cases in a summary way, the courts must look alone to the special statute conferring the jurisdiction and prescribing the procedure.
It is contended, however, that there is no complete Code, and that thereforé the general Code provisions should apply. An examination of the constitution and the election contest statute will discover that this contention is not well founded. Sec. 2697, Sand. & H. Dig., provides for notice in writing to the opposite party, specifying when it shall be given, and what it shall contain ; which notice serves the double purpose of a writ and declaration, as held in Vance v. Gaylor, 25 Ark. 32, and Swepston v. Barton, 39 id. 549. It also provides for process for witnesses. True, it does not specify who shall serve the notice and process, nor in what manner it shall be served, nor how the witnesses may be compelled to attend. But the fact that the legislature required the notice to be given, and specified that . it should be in writing, and what it should contain, and when it should be given, without mentioning how it shotdd be served, indicates clearly that no set formulae or fixed rules were to be observed in this latter particular. In other words, the legislature intended that if the notice mentioned was given at the time required, and served in any other manner than that prescribed by the Code, it would meet the requirements of the law, and be just as good as if served in the way pointed out by the Code. When the legislature provided that the parties “shall be allowed process for witnesses,” it was unnecessary for them to go further, and prescribe who should serve it, and the manner in which it should be served, and how the attendance of the witnesses should be compelled. Nor is their failure to mention these things specifically in the act any indication that they intended the general code provisions to apply to election contest proceedings. “Process” is a term of broad, but of definite legal, import, and its meaning .was well understood long before the Code had an existence. It comprehends all mandates of the court issued to its •officer, “commanding him to perform certain services within his official cognizance;” and embraces every writ that “may be necessary to institute, or to carry on an action or suit, and to execute the judgment of the court.” Am. & Eng. Enc. Law, 222, 224; Anderson’s Law Diet.; Bouvier’s Law Diet., subverbo, “Process;” 3 Bouvier’s Inst. 187.
Again, section 2698, Sand. & H. Dig. provides for taking depositions “on notice thereof to be read in evidence on the trial.” But it is not specified when, where, and how, they shall be taken, and this omission is also urged as a reason why . the general Code provisions ■should apply to these proceedings. “Deposition” like “process” is a legal term, the meaning of which was well fixed before the Code, and is as follows: “The testimony of a witness given or taken down in writing under oath or affirmation, before a commissioner, examiner, or other judicial officer, in answer to interrogatories and cross-interrogatories, and usually subscribed by the witness.” Weeks Law of Dep. 3. The statute provides for notice to the. other party, and the use of the term “deposition” carried with it all that was necessary to get the evidence desired before the court. The legislature never expressed more, doubtless for the very reason that they did not intend that the general Code provisions in reference to the taking and use of depositions should apply to election contest cases.
Now, let us see whát would be the anomalous result if the Code provision in reference to the use of deposi-' tions applied to these cases; for if the provision of the Code in reference to “new trials” applies, the provision in reference to the use of depositions, and all other provisions not inapplicable, must be given their full force and meaning. Then we have section 2698, Sand. & H. Digest, of the contested election statute, providing that “either party may, on giving notice thereof to the other, take depositions to be read in evidence on the trial,” and section 2978, Sand. & H. Digest' (of the Code) providing “that depositions may be used on the trial of all issues in any action in the following cases: ‘First, where the witness does not reside in the county where the action is pending, or in an adjoining county, or is. absent from the state,’etc. ***** ‘Fourth, where the witness resides thirty or more miles from the place where the court sits in which the action is pending, unless the witness is in attendance on the court.’
The statute (secs. 2702, 2704 Sand. & H. Dig.) expressly designates an election contest suit as an “action,” and it is so called in Gaylor v. Vance, 25 Ark. 32, and Swepston v. Barton, 39 id. 549. There is no repugnance between sec. 2698 of the contested election statute and 2978, Sand. & H. (of the Code.) Then, construing them together, as we must do if the Code applies to contest cases, we have: “Esther party may, on giving notice thereof to the other, take depositions to be read in evidence on the trial” (sec. 2698, Sand. & H. Dig.), to be used “where the witness does not reside in the county where the action is pending, or in an adjoining county, or is absent from the state,” * * * or “where the witness resides thirty or more miles from the place where the court sits in which the action is pending, unless the witness is in attendance upon the court. (Sec. 2987, Sand. & H. Dig.) So, the curious, but inevitable, result to follow, if the code provisions apply to contest cases, is to exclude the evidence of all persons living in the county under thirty miles, etc., unless it can be said that the evidence at the trial may be taken ore tenus. But, by expressing that depositions might be taken to be read at the trial, the legislature evidently intended to exclude other methods of taking evidence.
Sections 2702-3-4, Sand. & H. Dig., provide for the costs “in the action.” Article 7, sec. 52, of the constitution provides for an appeal on the “ same terms and conditions on which appeals may be granted to the circuit court in other cases, and that on such appeals the case shall be tried de novo." This section of the constitution, expressly makes all the provisions of the law with reference to appeals to the circuit court in other cases applicable to election contest cases. Ample provision, therefore, is made for appeals in election contest cases. This art. 7, sec. 52, of the constitution, and secs. 2697 to 2704 of Sand. & H. Dig, inclusive, we hold, constitute a complete code for the determination of election contest cases of the character therein mentioned in the summary way required. It will be observed that no provision is anywhere made for a re-examination of the issues of fact by new trial.
The supreme' court of California, under a statute similar to ours (and, in my judgment, no more complete than ours), in a special case to contest an election, said : “The proceedings authorized by article 6 of the act to regulate elections are special and summary, and no remedy can be had under the provisions of that article, except such as is therein expressly or by necessary implication provided. A new trial is riot authorized by the provisions of the article in question, and the remedy of a party who is dissatisfied with the judgment of the county court is by appeal only.” Casgrave v. Howland, 24 Cal. 457; Dorsey v. Barry, Ib. 449. In the latter case it is said, speaking of election contest proceedings: “We regard them in every sense as special proceedings and subject to the well settled rule that, in adjudicating upon them, the tribunal exercising jurisdiction must resort to the statute alone to ascertain its powers and mode of procedure.” This doctrine accords exactly with our views. We have not been .able to find any case to the contrary. None is cited in the brief of counsel, or in the opinion of the court, and we apprehend none can be found. See, also, Carpenter's Case, 14 Penn. St. 486.
In Wise v. Martin, 36 Ark. 305, this court said : “In a suit of this character, he (contestant) was not entitled to a trial by jury. It was a summary proceeding under the statute to be tried by the court.” and in Govan v. Jackson, 32 Ark. 553 it said: “ The law has made no provision for juries in the county court.” * * * “The requirement that it” (election contest case) “shall be determined in a summary way is that it shall be tried without a jury. Yet we have a general Code provision as follows : ‘All other issues of fact, whether arising in proceedings at law or equitable proceedings, shall be tried by the court, subject to its power to order any issue or issues to be tried by jury.’ ” Sec. 5795, Sand. & H. Dig. Could the county court, under this section of the Code, order an issue of fact in an election contest case to be tried by a jury? I think not, and for the reason that the special statute on election contests does not provide for it. But if the Code provisions apply, the above section shows that the court would have that power.
Our conclusion is that section 5600, Sand. &H. Dig., providing “that the Code of Practice in civil cases shall regulate the procedure in all civil actions and proceedings in all the courts of this state,” etc., had reference only to those actions and proceedings where the court was pursuing the jurisdiction conferred by the constitution, or exercising its jurisdiction according to the course of the common law. Odell v. Wharton, 27 S. W. 123.
In Patton v. Coates, 41 Ark. 111, this court said : “It is evident that in this peculiar class of cases the public has an interest in their speedy settlement, and that the object of the contest would be defeated by delay irremediably.” But if the court has the power to grant a new trial for some mistake of law or fact one time, it would have the power to do so a second and third time, and to what extent might not these contest proceedings, under such a power, be prolonged ? It serves a wise public policy, which we think the legislature had in view, when the county court has once passed upon the issues presented, not to allow it the power to pass upon them again and again by a new trial but to correct the mistakes, if any, by appeal to the circuit court and a trial there de novo as provided by the constitution, and, thus, speed the cause on its way to the final arbiter.
This is the only remedy for the party aggrieved. Of course, the county court would have the inherent power, if it should change its opinion as to the facts or the law at any time before the term closed, to set aside its judgment, and have one entered reflecting its last opinion. This, however, upon the facts as they had already been presented, and not upon a reopening of the issues by new trial.
The only question here is the power of the court to grant a new trial. If it has that power, the other irregularities complained of could have been corrected by appeal.
We think the judgment of the circuit court is correct, and should be affirmed.