(dissenting). The history of the enactment of the primary election law is so recent and is so well known that the courts can not be oblivious to that history. .A convention of the dominant party declared that a necessity existed for such legislation and appointed a commission to prepare a bill for an act to remedy the evil which had moved the convention to action. The convention itself named a commission of lawyers to prepare the bill, and the commission thus constituted was composed of a number of leading lawyers of the State. The bill was prepared and submitted to the ensuing session of the General Assembly, where it failed of passage. Thereupon, the people in their sovereign capacity as lawmakers enacted the bill into a law by their own vote at the first election held thereafter.
This act has now received its first practical .application in the courts, and has failed to function. The first case brought under its provisions has been disposed of on demurrer because of the construction given it.
Decisions of this court are cited in the majority opinion to the effect that election contests are special proceedings, and not civil actions under the Code. Such is the law, and .a law not peculiar to this State. An election contest in which the election itself is directly attacked to the end that it may be annulled, or the certificate of election cancelled and another certificate issued, is purely a statutory proceeding unknown to the common law, and, in the absence of a statute, no remedy to directly attack the election exists. 8 Standard Enc. of Procedure, 10.
The right to contest an election being one of statutory creation, the contest must conform to the statute which authorizes it. There is nothing peculiar about our election law in that respect. All the States, so far as I am advised, not only have election laws, but have provisions in these laws for contesting elections held under them; and while these contests must be conducted in the manner provided in the laws themselves, yet the provisions of the statutes providing for contests are held to be remedial, and like all remedial statutes should be liberally construed to effectuate the beneficient purposes which prompted the creation of. the remedy. So far as I am advised, it is so held universally. The doctrine is expressly recognized by the majority in the instant case, but, unfortunately, in my opinion, there is a failure to apply the doctrine announced. It is stated by the majority that the language contained is somewhat peculiar, and it is just here that opportunity is afforded to apply the doctrine just stated.
Now it does appear that a straight line is drawn through one of the ten names signed to the complaint, but it nowhere appears how, or when, or by whom, or for what purpose, this line was drawn. The complaint was not sworn to within ten days of the certification of the election, but it was sworn to as soon as that omission was discovered and before any other pleading or paper of any kind was filed in the case.
When the section of the statute is read as a whole, what does it mean? It gives the right to contest a party nomination for a political office. It was not thought wise to confer this right because the candidate alone felt aggrieved, but it was required that the complaint should be supported by the affidavit of at least ten reputable citizens. Expedition was regarded as essential, and it was provided that the complaint should be filed within ten days. The contest is begun by the filing of the complaint, and the complaint must be filed within ten days, but will it be contended on that account that the complaint can . not be amended in any respect thereafter?
The jurisdictional requirement is the filing of a complaint within ten days. Its verification and amendment and progress to a final adjudication are matters of procedure, and not of jurisdiction.
The case of Nelms v. Vaughan, 5 S. E. 704, was a proceeding to contest an election under a statute which provided that a complaint filed for that purpose “shall not be valid or regarded by the court unless the same shall have been filed within ten days after an election in the clerk’s office of the proper court.” There was a petition for a writ of prohibition on the ground that the petition was not subscribed to by 4he two affiants, as required by law, and, in stating the contention of the parties who had _ applied for the writ, the Supreme Court of Appeals of Virginia said: ‘‘ But as the law provides that the returns of such elections shall be 'Subject to the judgment of the said court upon the complaint of fifteen or more of the qualified voters of the county of an undue election and false return, and provides that two of these shall take and subscribe an oath or affirmation, and the oath in this case does not appear to be subscribed, it is claimed that the circuit court has no jurisdiction to hear the complaint. * * *” Disposing of this contention, the court said: “The policy of the Legislature was to provide in such cases a cheap and speedy mode of contesting an election upon its merits, on the complaint of qualified voters of an undue election and false return; that the law is remedial, and must be so considered and construed as most effectually to meet the beneficial end in view, and to prevent a failure of the remedy. It is true that this statute does in terms provide that the oath in question shall be subscribed as well as taken, and that in this case, while the notary does certify that the oath has been both subscribed and taken, the names do not appear to be there written, and the circuit court, having directed the two named qualified voters who had subscribed the complaint, and whose names are inserted in the body of the oath, to now subscribe the same so as to amend where the defect appears, the writ of prohibition is applied for to restrain the said circuit court from exceeding its jurisdiction by so amending the oath. The law directs the form of these proceedings, and there is no doubt that the intention of the act is that these forms shall be substantially complied with, but there is nothing in the act to indicate the intention that every departure from the letter of the act shall vitiate the proceedings, and oust the court and every court from applying the remedy provided by this statute ; and it is reasonable to infer that, if such intent had existed, it would have been manifested in the act, for the act does provide as to the time of filing the complaint that, if it is not filed within ten days, it shall not be valid or regarded by the court, thus providing those negative words by which the legislative intent is made plain. ¥e are authorized to regard the directions as to form as merely directory, as there is no intimation that they must be done or all will be vitiated, or else no proceeding shall be further had. ’ ’
In the case of Phillips v. Ratliff, 121 S. W. 460, the Court of Appeals of Kentucky had before it an election •contest, in which the contention was made that the circuit court should have sustained a motion to dismiss the contest because of the alleged failure of the contestant to verify his petition. In disposing of that contention, the court said: “The motion was properly overruled, as it was made to appear by the affidavits of appellee that the original petition which was later lost had been verified by appellee. Besides, it appears from the record that appellant’s answer was filed before complaint of appellee’s failure to verify the petition was made. This being the case, he waived the right to compel a verification of the petition. And, had the objection to the want of verification been made in time, the court should not have dismissed the petition without first giving appellee time and opportunity to verify it.”
The case of Nash v. Craig, 35 S. W. 1001, was a case decided by the Supreme Court of Missouri under a statute which provides that no election of any county officer “shall be contested unless the notice of such contest be given to the opposite party within twenty days after the votes shall have been officially counted,” and that “the notice shall specify the grounds upon which the contestant intends to rely, and, if objection be made to the qualification of any voters, the names of such voters and the objection shall be stated therein.” There was a motion to dismiss this contest on the ground that the statute had not been complied with; the court, after stating that proceedings to contest elections are statutory and special and that jurisdiction of the subject-matter can only be acquired in the manner prescribed, disposed of the contention by saying: “It has been uniformly ruled that statutes governing elections should be given a liberal construction, whenever they will admit of it; and the same rule should' be applied to the pleadings in order that substantial justice may be done, not only to the contesting parties, but .to the public.” And the opinion quoted the following statements of law from McCrary on Elections, section 406: “In the absence of any statute authorizing amendments, the court trying a case of contested election may, under its general common law power, permit such a petition to be amended; and an amendment ought to be allowed wherever the court, in the exercise of a sound discretion, shall be of the opinion that the ends of justice will be thereby promoted.” And the court held that a notice might be amended to state more, explicitly the grounds of the contest.
We think that, wh-en the primary election law has been liberally construed as all such statutes should be construed, only the filing of the complaint should be held to -be jurisdictional, .and that its verification should have been subsequently permitted, just as any other amendment should have been permitted which was reasonably necessary to meet the ends of justice; the court exercising its discretion of course in determining whether such application had been seasonably made.
I therefore dissent, and am authorized to say that Mr. Justice Wood concurs in the views here expressed.