Respectfully dissenting, the writer suggests that statutes, conferring the right to contest an election, grant only a privilege to the defeated candidate, where none existed at the common law, and that the contestant acquires under such statutes only such expressly limited and conditional privileges as the legislature may see fit to extend. Gillespie v. Dion, 18 Mont. 183,44 P. 954, 33 L.R.A. 703; Daugherty v. Carnine, 261 Ill. 366,103 N.E. 1003. Further, an election contest has for its subject-matter, namely, a public office, a thing in which the contestant has no inherent or property rights. Shaw v. Marshalltown, 131 Iowa 128, 104 N.W. 1121, 10 L.R.A. (N.S) 825, 9 Ann. Cas. 1039. So, it is neither an action at law nor a suit in equity. Girhard v. Yost, 344 Ill. 483, 176 N.E. 899. In Pflanz v. Foster, 155 Ky. 15, 159 S.W. 641, 643, it is said:
"There is no inherent power in the courts to pass upon the validity of elections or to try contested election cases; their authority is wholly statutory, and must be either given expressly or by necessary implication."
It is on account of the nature of an election contest as above pointed out that in practically every jurisdiction it is the rule that the statutory provisions for inaugurating an election contest must be strictly construed, and the writer is not in accord with the liberality of construction found in the majority opinion.
As to whether the contestant, Clark, succeeded in instituting a statutory contest of this judicial election there are certain *Page 163 fundamentals to be considered. Among these are provisions found in code sections 1008 and 1024, which specifically require that the contestant file a written statement, setting forth, among other things, "the name of incumbent" and the "office contested."
Until this was done, a statutory contest was not instituted by Clark. The election contested was an election of four judges. These four judicial offices to be filled were in no way individually designated or earmarked; the situation being one in which four similar offices were to be filled by a single election. The result is no candidate was seeking election to any particular one of the four offices, and no candidate was running against any other individual candidate for any particular one of the four offices, but rather each candidate was running for an undesignated one of the four offices to which he might attain election by being one of the four candidates receiving the highest number of votes. The only provisions for instituting a contest of an election of state officers are found in sections 1008 and 1024 as above indicated. Assuming that the sections mentioned have application to contest of an election to fill several like offices, as we must assume if there is any contest before us at all, then applying code section 63, sections 1008 and 1024 must be read as if the words "incumbent" and "office" import the plural number in cases of a plural election. Reading these sections in this manner, that is, as if the words "incumbent" and "office" had been the words "incumbent or incumbents" and "office or offices," it becomes obvious that the statement of contest filed by Clark exhibits a failure to comply with the statutes. This failure is obvious, in that three of the incumbents and three of the offices involved in the election were not set forth in, nor made a part of, the subject-matter of the attempted contest, nor were three of the incumbents in any way made parties thereto as the result of the failure to name them as incumbents. The statute provides that notice be given the incumbent named in the statement of contest, and jurisdiction of such incumbent is thereby acquired. In the attempted contest before us, three of the incumbents were not named as party incumbents, and by reason of such failure they at no time became parties to this proceeding. As stated, the election of four judges was the election that was being contested. The contest court could have found nothing in the statutes that authorized *Page 164 a recount as between Clark and Haas alone, but such was the only issue raised by the statement of contest filed by Clark and undertaken by the contest court. The only issue that could be submitted to a contest court, as intended by these statutes, was the question, Which four candidates received the highest number of votes? It seems to the writer beyond debate that Clark failed to comply with the statutes that plainly provided the essential things to be done to institute a contest of an election. The remaining question is whether it can be said that any statutory election contest was instituted, with three-fourths of the subject-matter omitted, and a like proportion of the incumbents omitted, though required by express terms of the statute. The writer is of the opinion the answer must be negative and that the contestant deprived the contest court of jurisdiction of the very subject-matter itself, and this in utter disregard of the statutory requirements that the contestant should have observed. It does not seem to the writer that the contestant can excuse the failure to comply with the statute by saying he conceded to the three omitted incumbents three of the judgeships. Such concession is without substance and effects nothing. This is because contestant had no property in the three judgeships omitted from the proceedings that he could concede to any one. The electorate alone, not the contestant, could confer these three offices. It still remained a fact, after contestant's so-called concession, that, in event of a statutory contest of this election, the status of the three omitted incumbents depended solely upon the results of a lawful recanvass of the ballots properly cast in this judicial election. So, because he failed to observe the fundamental requirements that the incumbents and the offices involved in the election be set out in his statement of contest, the writer is satisfied that the contestant wholly failed to institute a statutory election contest.
As the writer understands the majority opinion, it is their finding that in this case the three omitted incumbents had been safely elected. Upon such finding of fact, the majority seem to conclude that in the case at bar a proper contest was instituted. The writer cannot agree that such finding of fact is in any way material or relevant, or warrants oblivion to the provisions of these statutes. The question that should have been decided is whether or not the statutory provisions necessary to institute a contest of an election were strictly complied with by *Page 165 contestant. The writer cannot accept the thought that the finding of the contest court justified the procedure adopted. It seems to the writer that the legislature in enacting these statutes must have had in mind the public interests as the important and paramount consideration, rather than the personal fortunes of candidates for office. From these statutes it appears that it was a matter of vast public interest, as contemplated by the legislature, to make provisions by which, through a contest of an election, the whole election involved in the contest should be finally and rightly determined. Confidence in our institutions demands that, when there is instituted an election contest, it shall be in a manner insuring a full, final, and complete determination of the will of the electorate. As already said, it would also seem to the writer that the political fortunes of particular candidates were to the legislature of comparatively small significance. With the relative weight and substance of these matters in mind, we do not believe the Legislature intended that a contestant can omit from his statement of contest three incumbents and thereby safely protect them from any results of a recount that might unseat them, picking out only the candidate or candidates whom it might please the contestant to see removed. The writer does not believe the legislature, having any regard for public interests, intended that a contestant can so frame the proceedings that the only possible judgment that can be rendered by the contest court will be the judgment sought after by the contestant. Such manacling of the contest court is difficult to accept as within the intent of the legislature. The writer does not intend to infer any such animus in the instant case. But he is directing attention to the improbability that the legislature intended to provide the means and procedure for such results, now perhaps rendered possible upon authority of the majority opinion. In view of what the legislature must have had in mind when they enacted these statutes and in view of the strict construction to be adopted for the reasons before mentioned, the writer is of the opinion that a statutory election contest of this judicial election was not instituted by the contestant, and that consequently there was nothing before the contest court. The writer would sustain the writ.
As pointed out, it is statutory in Iowa that the incumbents be named in the statement of contest. In Illinois there appears to be no such statutory requirement. Nevertheless in that jurisdiction, *Page 166 even in the absence of statutory requirement, the necessity of making all incumbents parties to the contest has been recognized in Conway v. Sexton, 243 Ill. 59, 90 N.E. 203, 204. In that case five trustees were to be elected. Two opposing tickets were in the field with five candidates on each. Three candidates that were on one ticket and two that were on the other were declared elected. A defeated candidate on the ticket from which two candidates had been declared elected filed a contest. To this contest he made parties the three incumbents declared elected from the opposition ticket, but he did not make parties the two incumbents elected from his own ticket. The three incumbents made parties moved to dismiss the proceeding on the ground that necessary persons, viz., the other two incumbents, were not made parties. The Supreme Court held that the motion was properly sustained, saying:
"The motion to dismiss was therefore properly sustained, because proper and necessary persons, indispensable to a decision of the contest upon its merits, were not made parties to the proceeding. At the time this order was entered, May 13, 1909, it was too late, under the statute, to bring in new parties to the contest."
In the case at bar section 1008 provided that the statement of contest must be filed within thirty days from the date the incumbent was declared elected. After the expiration of that period, it seems too evident for any argument that the missing incumbents could not have been brought into the attempted contest, for, in view of section 1008, no one could reasonably claim that a contest could be instituted against other incumbents after the thirty-day period, under the guise of bringing them as necessary parties. While they were at all times necessary parties, their availability as such had ended with the expiration of the statutory period within which to proceed against them. Making them parties after this period would be an empty gesture. For a holding similar to the Conway case, see Craft v. Davidson,189 Ky. 378, 224 S.W. 1082.