| Ark. | Oct 18, 1909
(after stating facts).
The framers of the Constitution left the entire matter of the organization of cities to the Legislature, Art. 12, sec. 3. By section 5433 of Kirby’s Digest it is provided that: “Special elections of the members-of the city council of all cities shall be held at such time and place as the mayor by proclamation shall direct, so that at least ten days’ notice thereof shall be given.” The mayor, under the law, is a member of. the city council. See section 5589, Kirby’s Dig., in connection with sections 5432 and 5581.
By these provisions it is clear that the only mode for filling a vacancy in the office of mayor is by special election, and not by appointment. In the absence of express constitutional statutory authority authorizing, the Governor to appoint, he has no such power. “The right to make appointments to office is not inherently an executive prerogative.” 23 Am. & Eng. Ency. Law, p. 343, and cases cited.
But this court has held that the authority to fill vacancies in municipal offices does come within the -purview of the general powers conferred by statute on municipalities in this State. Payne v. Rittman, 66 Ark. 201" date_filed="1899-02-18" court="Ark." case_name="Payne v. Rittman">66 Ark. 201. Our conclusion on this point is that neither the Constitution nor the statute confers upon the Governor the power to fill vacancies in the office of mayor by appointment. Section 23 of art. 6 of the Constitution, providing that when any vacancy occurs in any office and no mode is provided by the -Constitution and laws for filling same, the Governor shall fill the same by appointment, etc., has no application to a vacancy occurring in the office of mayor. A mode is provided by statute for filling vacancies in the office of mayor. See section of the Digest supra and § 5612. Section 23, art. 6, of the Constitution refers to other than municipal officers.
We need not decide whether these provisions apply to the special election of mayor. For, conceding that they do, appellant is in no position' to complain of a failure to observe the requirements of the law. He held the office without legal authority, and was not the victim of any unfair treatment in the election. He was not a candidate, and voted for the appellee, who was the only candidate at the very election which he now calls in question. It is not pretended that any fraud was perpetrated on him by the appellee or the election commissioners. The statute does not declare that the election shall be void at which ballots are used containing the name of a person who has not been certified as a nominee. The failure to comply with the letter of the law by election officers, especially in matters over which neither the candidate nor the voter has control, and in which no fraud is perpetrated, will not as a general rule render an election void, unless the statute expressly makes it so. McCrary on Elections, § 403. Says the Supreme Court of Indiana: “All provisions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that -purpose; but after election all should be held directory only, in sijpport of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result; or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election, or that its omission shall render it void.” Jones v. State, 153 Ind. 440" date_filed="1899-11-15" court="Ind." case_name="Jones v. State">153 Ind. 440, 55 N. E. 229.
The same principle is recognized in Rhodes v. Driver, 69 Ark. 501" date_filed="1901-07-13" court="Ark." case_name="Rhodes v. Driver">69 Ark. 501. See also Wheat v. Smith, 50 Ark. 266" date_filed="1887-11-15" court="Ark." case_name="Wheat v. Smith">50 Ark. 266; Govan v. Jackson, 32 Ark. 553" date_filed="1877-11-15" court="Ark." case_name="Govan v. Jackson">32 Ark. 553, and other cases cited in appellee’s brief.
The election in this case was regularly called, notice was given, and appellee was the unanimous choice of untrammelled voters.
Affirmed.