116 Ala. 209 | Ala. | 1896
The single question presented by this record, is whether the special election held in Colbert county, on March 15, 1897, for the determination, by the voters of the county, whether the court of county commissioners should issue certain bonds in behalf of the county, for the improvement of the public roads, was valid or not, inasmuch as thirty days notice of the election was not given. The’ act of the legislature-, under which the election was held (Acts of 1896-97, p. 820), by its terms, fixed March 15, 1897, as the day upon which the election should take place. It was approved February 12, 1897. It contained the provision, that “such election shall be ordered, called and governed by the general election laws of this State in force at the time of said election.” That law requires thirty days notice of the election to be given by publication in a newspaper published in the county.
The proof shows that, in view of the times of publication of the newspapers in the county, it was impossible to give thirty days notice of the election, in the manner required by the general election law, after the passage of the act, and prior to the time fixed by the act for the election to be held. Such notice as was practicable to have been given, was given, to-wit, about eleven days, and upon this notice the election was held.
It is not to be disputed that the General Assembly, in enacting this law, intended it should have force and operation. It did not intend that the law itself should be defeated by reason of inconsistent provisions in it. By its express terms the day of election was fixed. That is clearly mandatory, and no valid election could have been held on any other day. — McCrary on Elections, (3d ed.), § 141; Throop on Public Officers, §148 ; 6 Am. & Eng. Encyc. of Law, 318. The notice required by the act was not expressly defined. The machinery provided for holding the election, including the notice to be given, was by a general reference to, and adoption of, the general election law. If, therefore, the requirements of a prescribed notice were, in general, deemed mandatory and not directory, in order to give force to
But, aside from this, the authorities seem-to be practically one way, and we accordingly so hold, that when the law prescribes the time and place of election, as in this case, the people take notice of it as they do of any other law, and if a special notice is required to be given by an officer, the provision is deemed directory merely. The doctrine is thus stated by Cooley on Con. Lim., marg. p. 603: “The notice to be thus given is only additional to that which the statute itself gives, and is prescribed for the pux*pose of greater publicity ; but the light to hold the election comes from the statute, and not from the official notice. It has, therefore, been frequently held that when a vacancy exists in an office, which the law requires shall be filled at the next general electioxi, the time and place of which are fixed, and that xiotice of the general election shall also specify the vacancy to be filled, axi election at that time and place to fill tlie vacancy will be valid, notwithstanding the xiotice is not given; and such election can not be defeated by showing that a small portion only of the electors were actually aware of the vacancy, or cast their votes to fill it. But this would not be the case if either the time or the place were not fixed by law, so that notice became essential for that purpose.” The following authorities are to the same effect: McCrary on Elections, §§ 143, 144, 145; Throop on Pub. Officers, § 150; People v. Cowles, 13 N. Y. 508; State v. Jones, 19 Ind. 356; City of LaFayette v. State, 69 Ind. 218; Smith v. Crutcher, 92 Ky. 586; Berry v. McCollough, 94 Ky. 247; People v. Hartwell, 12 Mich. 508.
In Powell v. Jackson Common Council, 51 Mich. 129, the case was practically the saxne as the present, and it was held, opinions by Sherwood axxd Cooley, JJ., that the statutory notice was dispensed with where the law was passed too late to give it before the election.
We are compelled to hold that the electioxi was. lawful, and that the circuit court was right in granting the mandamus.
■Affirmed.
