112 Iowa 321 | Iowa | 1900
Lead Opinion
I. Section 2908 of McClain’s Code applies to the election in question. - It is as follows: “No
The statements in the return quoted above are not questioned, and may therefore be taken as correct. The election was held on the day and at the place appointed. Every
Applying these rules to the facts of the case, it is clear that the deviation was not such as to render, this election void. Plaintiff relies largely upon Hesper Dist. Tp. v. Burr Oak Independent Dist., 34 Iowa, 306. That was an action to enforce the collection of a tax the validity of which depended upon the legality of the organization of the defendant district. An election was ordered to be hold January 25, 1807, at 1 o’clock p. m., to determine the question of a separate district organization under a statute requiring the polls to be opened from 9 a. m. to 4 p. m. We said: “The polls should have been opened as provided from 9 o’clock A. m. until 4 p. si. The language of the two sections cannot be misunderstood, and its obvious meaning is in harmony with reason. It cannot be supposed that the legislature would provide for more favorable opportunities for the expression of the will of the people in the ordinary election than at the important one which determined the very existence of the district. The township trustees had no power to order an election to be held at a time not authorized by law, and it was therefore illegal. The action of the electors, deciding upon the organization of the district, being unauthorized and void, must be regarded for naught, and the district itself as having no legal existence.” The distinction between that case and this is that that election was ordered for 1 o’clock p. m., while this was ordered for the day and hours provided by law. In that the election was held at 1 o’clock, while in this the polls were open from 9 a. m. until 4 p. ji. It does not appear that in that ease, as in this, all the electors entitled to do so had voted, or had opportunity to vote. The reasons appearing in this
Dissenting Opinion
(dissenting).' — Believing that this case is ruled by Hesper Dist. Tp. v. Burr Oak Independent Dist., 34 Iowa, 306, which holds the statute quoted or a like statute mandatory, I respectfully dissent from the conclusion of the majority. I think the judgment should be, on the authority of that case, affirmed.