(dissenting) — I. I cannot concur with' my learned brother in this case. I do not agree that jurisdiction of the subject-matter was not involved in the case of State ex rel. Woodson v. Robinson, 270 Mo. 212. The challenge of jurisdiction wag guffieiently broad to cover jurisdiction of the subject-matter, as I understand subject-' matter, in so far as it pertains to jurisdiction.. It can. be said that the question of waiver of jurisdiction (jurisdiction of the person) was. not in that case, because throughout' the question of no jurisdiction was urged. This matter' of waiver was discussed in the Woodson case, because urged by respondent in that case, but it did not remove from the case the two questions, i. e.: (1) jurisdiction of subject-matter, and (2). jurisdiction of person, both of which were preserved in the case. Jurisdiction of the court over the subject-matter of that contest wrus in the case, and as the writer of the opinion therein we purposely ruled thereon. So to my mind what was said, being upon an issue directly raised, was not obiter. It is true the case might have properly passed oft on the question of jurisdiction of person, but both matters were raised, and decided.
II. Nor do I agree, in the instant case, that the circuit court ever acquired jurisdiction of this contest. *664Under the facts stated by our learned brother, the very statute precludes the jurisdiction of the circuit court, and this we will point out presently,
jurisdiction contest. 'Whilst it is true that the circuit • courts are courts of general common law jurisdiction, we must not overlook the fact that election contests were unknown to common law. “At common law there was no such proceedings known as a contested election, and therefore, we can get no aid in our inquiry from that quarter.” [State ex rel. v. Hough, 193 Mo. l. c. 643.] “A contested election is a purely statutory proceeding in Missouri, both as to the tribunal and the character of the proceeding, and was unknown at common law.” [State ex rel. v. Slover, 134 Mo. l. c. 15.]
In other words, such proceeding is a code unto itself and all questions must -be determined from the provisions of the law concerning such contest. [State ex rel. v. Spencer, 166 Mo. l. c. 285.] The jurisdiction to hear and determine a contest is not one of general jurisdiction possessed by courts having common law jurisdiction, but the tribunal and procedure are purely statutory. But for the provisions of section 9, article 8, of the Constitution, the Legislature could have had these contests adjudicated by tribunals other than courts of law. [9 R. C. L., sec. 148, p. 1158; State ex rel. v. Hough, 193 Mo. l. c. 645.] In this regard such section of the Constitution is a limitation upon the Legislature, and that body was compelled' to designate courts of law to determine contests, but this does not change the fact that the tribunals of law so selected are special tribunals, and operate under a code unto themselves.
Now to this code we turn to see if the court nisi has jurisdiction in this case.
No Jurisdiction Notice? III. By Section 5924, Revised Statutes 1909, the circuit courts of the State were designated as tribunals before which contests of the character of the one involved here should be heard. By Section 5928, Revised Statutes 1909, the proceeding for determining the contest is *665made' a summary one. But the contest about to be presented must be one within the statute, before this special tribunal possesses any power to act. To illustrate: a notice of contest duly served, must be filed with the clerk of such court, at some time prior to the date of the trial, before such court can be possessed of the cause. By possessed of the cause, we mean the power and right to determine it. A contestant might prepare his notice of contest in. due form, and might have it duly served in the method prescribed by our ruling in State ex rel. v. Robinson, 270 Mo. 212, and yet the circuit court would not have jurisdiction of that contest. The law requires more, not in specific language, but by our construction thereof. Thus in State ex rel. v. Hough, 193 Mo. l. c. 648, it is said: “And while the statute does not designate the time for the filing of the notice in the office of the clerk inasmuch as a copy of the notice containing all the grounds of the contest is served on the contestee, it would seem that the filing of the original with the clerk at any time before the 'commencement of the term, to which the contest is returnable, would answer all the requirements of the law.”
What we want, to emphasize is the fact that there is no way, earthly, by which the court can acquire jurisdiction of the particular contest (either-as to its subject-matter or the parties thereto) except by the filing of a legally served notice with the clerk of the court. When ’a legally served notice is filed with the clerk then the court for the first time becomes possessed of the contest. If.this were not true the contestant could change his mind about contesting the election and put his duly served notice in his pocket, and keep it there, and yet we would have a contest pending in court. This will not do.
Now if it requires the filing of something with the clerk to give the court jurisdiction of the subject-matter, as well as of the persons of a particular case, what must be the character of this “something1?” In an ordinary law suit the court grabs jurisdiction of the subject-matter of the particular suit, when the petition *666is filed, which petition invokes its jurisdiction. It gets jurisdiction of the person, on the one side, by the filing of the petition, and on the other by the service of a summons. ' Thus the jurisdiction of the subject-matter of the particular case, and the jurisdiction of persons interested therein, is made complete. But if no petition was filed, it would be foolish to say that the court had acquired jurisdiction of the subject-matter of that particular case, although it might have general jurisdiction of the cases belonging to the class. ■ Whether you call it jurisdiction or the invocation of jurisdiction, is immaterial. Certain it is the courts of law cannot try a ease before a petition is filed, and whether the filing of the petition is the ' thing which gives the jurisdiction ■ of the subject-matter of the particular case, or is the thing which invokes the general jurisdiction of the court, is a matter we need not discuss, for the purpose we now have in' view. It is clear that the court is powerless to act until a petition is filed.
With the foregoing ideas in mind let us now revert to Section 5924. Among other things this section says: “but no election of any such school directors, of any county, municipal or township officers, shall be contested unless notice of such contest be given to the opposite party within twTenty days after the votes shall have been officially counted.” The section then provides the manner of serving this notice, and in State ex rel. v. Robinson, 270 Mo. 212, we said that service must be by an officer of the court.
Under these statutes (which are a code unto themselves) and before this special tribunal, the process is this: the contestant prepares his notice ánd has it served, and then files this notice duly served, with the clerk of the court. When such an instrument is filed, the court for the first time becomes possessed of the contest. If no such instrument is filed, then the court never becomes possessed of the contest. Under this special code there is a condition precedent, which must be performed before the court can become possessed of the contest. This condition precedent is the filing of a duly served- notice of contest with the court or its *667clerk. If, as in the case at bar, under the ruling in State ex rel. v. Robinson, the contestant has never obtained service of a notice, how then can he meet -this condition precedent? If he filed a mere notice of contest, without any service, could it be said that the court had .acquired the right to determine such a contest? The thing which invokes the jurisdiction of the special tribunal for such cases is the filing of two things: (1) a notice of contest and (2) a certificate of due service of that notice. When these two things are filed the special tribunal acquires jurisdiction of the contest, i. e. the subject-matter of the proceeding, and not before. The jurisdiction of the special tribunal is not invoked until this is done. How can you waive a jurisdiction which has never been invoked?
My position is, that. under this special code, this special tribunal acquires no right to act until there is filed with its clerk a notice of contest, served within the time and in the manner prescribed by law. This because of the prohibition in the statute, which says “no election . . . shall be contested unless notice of such contest be given to the opposite party.”
The language of this prohibition upon these special tribunals is strong and emphatic. By its terms the hands of the special tribunals are stayed until the filing of such notice with legal service thereon. It requires the filing of both, before the stay of the statute is raised and the special tribunal is permitted by law to proceed. In the instant case there was no legal service (which is no service at all), and hence the notice of the contest and legal service thereof was not filed. Under such circumstances the circuit court has no more right to proceed than would a justice of the peace. The condition precedent to jurisdiction has never been met. It is not a question of waiving jurisdiction over the person, but is a question of whether the contestant has done the things pre-requisite to a contest at all.
*668General Common Law Jurisdiction: Waiver. *667IV. We have no quarrel with the proposition that jurisdiction of the subject-matter is conferred by law.' But what we do urge, is, that the power which confers *668by law the jurisdiction of subject-matter, has just as much right to limit this jurisdiction, as it has to grant it in the first place. And if the law-making power which granted the jurisdiction of subject-matter to these special tribunals chose to limit its exercise by imposing conditions precedent, it could do so. So it has done in this class of cases, and untijl the condition precedent has been met no jurisdiction of subject-matter is possessed by the tribunal. [State ex rel. v. Spencer, 166 Mo. l. c. 286.] The fact must not be overlooked that this is a special jurisdiction and a special tribunal under this special code. By this we mean that although it is a court with common law powers,’which is acting, yet its power to act had to be specially conferred by statute in contests of elections.
Nor have we anything to urge against the porposition that where general jurisdiction is conferred, then if the case belongs to the class, it is usually sufficient to confer jurisdiction of subject-matter in the specfic case. This is not always true, however. Thus circuit courts have jurisdiction to issue writs of prohibition, yet we have held that they may exceed this jurisdiction by trying to prohibit an executive board from acting in the impeachment of a city marshal. [State ex rel. McEntee v. Bright, 224 Mo. 514.] So, too, circuit courts have general jurisdiction to cancel deeds which cloud titles to land, yet we prohibited a circuit court from hearing a case to cancel such a deed when the land was not in Missouri. [State ex rel. v. Grimm, 243 Mo. 667.] So, too, circuit courts have general jurisdiction over action for damages, yet we would hardly hold that such an action would lie against the Governor of the State for an alleged failure to perform one of his duties. [State ex rel. v. Shields, ante, p. — .]
But the case at bar is-not in either of these categories. Here we have a special jurisdiction in a special forum under a special code. That it is a special forum is made more clear by the fact that in original contest proceedings in this court, a part of the judges and not all the court may be the forum.
*669Nor have I any quarrel with the rule of waiver as expressed in the cases of State ex rel. Folk v. Spencer, 164 Mo. 48, and State ex rel. Sale v. MeElhinney, 199 Mo. 67. The first of these cases involves a contest over the office of Circuit Attorney in St. Louis, and. the latter involves a contest over the office of circuit judge of the same city. In the matter of a contest for circuit judge the statute (Sec. 5957, R. S. 1909) requires the contestant to file a petition in court just as in ordinary civil actions. Summons must issue as in other actions. Answer must be filed, as in ordinary actions. Thus it will be seen that the procedure is entirely different from the one in the case at bar. The jurisdiction of the subject-matter is invoked by the filing of the petition, and this particular jurisdiction of the subject-matter of this kind of a contest, is complete, although no service of summons bei had. As long as the petition remained on file, and the case was not dismissed, the jurisdiction of the subject-matter, i. e. that contest, was there. Of course it would require the jurisdiction of the person, and This .could be waived, by the party coming in and doing things which amount to a waiver of jurisdiction of person.
So,. too, in contests over the 'circuit attorney’s office in St. Louis. By Section 5965, Revised Statutes 1909, these contests must proceed ais those for circuit judge. But these cases are not like the case involved in the instant case. The procedure is altogether different. Those cases have the same course (filing petition, issue and serving of summons and filing answer) as ordinary civil actions. The question of waiving personal service in such cases would be just as.in-the regular civil case.
The case of State ex rel. v. Oliver, 163 Mo. 679, cited by my brother, does contain some language which gives aid to the question of alleged waiver in this case, because in that case (a case in prohibition here) the prohibition proceeding grew out of a contest for a county office. When the case is fully read, we think it no authority. There was no special point qiade in the opinion- on this matter, but it seems- to have been a casual outburst of the judge writing the opinion. On *670page 690, Judge Sherwood did say: “Upon this order hinges the proper disposition of this cause, because it is thought that James K. Young’s appearance as contestee before the clerk of the circuit court, and filing a motion to require his opponent to give security for costs and also his motion to make Oliver’s notice of contest more definite and certain, were such appearances as cured a defective service if there was any. [State ex rel. Lemon v. Board, 108 Mo. 235.] Besides that, Young appeared before the county clerk and filed a counter notice of the contest.” The whole fight in that case was upon other matters and this language of the learned jurist seems to have been by the wayside. But the case he cites for support (State ex rel. Lemon v. Board, 108 Mo. 235) is not a contested election at all, and is and was no authority whatever for the side remarks above quoted from Judge Sherwood.
On the contrary in a contested election for sheriff (Castella v. Ceri, in the circuit court of St. Louis) Judge Lackland, the circuit judge, ruled that the service of a counter notice of contest did not waive jurisdiction (Vide, Castello v. St. Louis Circuit Court, 28, Mo. l. c. 265), and this ruling was approved by this court (Castella v. St. Louis Circuit Court, 28 Mo. l. c. 274, et seq.), wherein we refused to mandamus the circuit court to proceed, the very thing we are asked to do in this ease. This case is exactly in point in cases involving contests of county officers.
When it is recalled that contests of elections are special proceedings, under a specially created jurisdiction, with a specially provided code, we are forced to the conclusion that á duly and' legally served notice is jurisdictional. [State ex rel. v. Spencer, 166 Mo. l. c. 286.] County courts are given jurisdiction to hear and determine road cases, but the procedure calls for a certain notice. In that line of cases we have held (Railway v. Young, 96 Mo. l. c. 42) that: “The fact of notice having-been given in the mode pointed out by the statute, is as much a jurisdictional prerequisite as is the residence of the statutory number of' petitioners. If either be lacking, the jurisdiction fails, and for the- obvious reason *671that such proceedings, being in invitwn, in derogation of common' law and common right, are always regarded as strictissimi'juris, and receive no help from intendments or implications, and so this court has repeatedly held.”
So in the ease at bar. The proceeding is one unknown to the common law. The certificate of election (a valuable right) is being taken. The proceeding a special one, and summary in character, before a special tribunal named in the special code provided for the conduct of the proceeding- — we therefore reiterate what we said in State ex rel. v. Robinson, that without notice of a contest duly and legally served, within the time prescribed, the circuit court (the special tribunal in this class of contests) was absolutely without jurisdiction and such jurisdiction could not even be given by consent. For these reasons we dissent.
Blair and Williams, JJ., concur in these views.