156 Wis. 655 | Wis. | 1914
At the election held in the city of Janesville April 2, 1912, there was submitted to the voters, pursuant to directions of the common council, the question: Shall the city of Janesville purchase the Janesville Water Gompany ? The total number of votes cast upon the subject was 2,279, of which 1,238 were cast for and 1,041 against the question, the majority in favor of purchase being 197.
Claim is made that the question was so worded as to mis
The first official notice that such a question would be submitted to the voters was published on Sunday, March 24th, nine days before the election. It is claimed by plaintiff that the notice was insufficient.
Sec. 1797m — 80, Stats., inferentially at least, provides that the electors of a municipality may at a general or special -election vote upon the question of the acquisition of a public utility. It makes no provision for giving notice of such election. But sec. 926 — 31, Stats. 1911, provides that when any question is to be submitted to the voters of any city or village the common council of such city or the village board of such village shall issue a call for such election in accordance with the law authorizing such submission. Unless otherwise provided by such law, notice of such election shall be given, and the election shall be held and conducted by the inspectors and •clerks of election in the same manner, and the return thereof shall be made in the same form and manner, as in the case of •general municipal elections. Since the general Public Utility Law makes no provision for giving notice of election, such notice must, under see. 926 — 31, be given as required for a general municipal election in Janesville. Sec. 1 of ch. II of the charter of that city [ch. 221, Laws of 1882] requires ten •days’ notice to be given for a general municipal election therein. So ten days was the notice required for the submission of the question voted upon. Assuming that the first pub
The question arises, Does such insufficiency of the election notice invalidate the vote cast ? Many cases are called to our attention to the effect that a failure to give the full statutory election notice does not invalidate the election, and among others, State ex rel. Peacock v. Orvis, 20 Wis. 235; State ex rel. Lutfring v. Gœtze, 22 Wis. 363; and State ex rel. Chase v. McKinney, 25 Wis. 416, in which the court held that, as to filling offices at a general election, an insufficiency of the election notice would not invalidate the votes east where it appeared that the voters had an opportunity to cast their ballots, because the time of holding general elections is fixed by law and it is generally known that offices are to be filled by vote at such elections.
In the last case mentioned the election was declared void because it was not generally known that a vacancy was to be filled. Rut decisions as to the validity of general elections, especially where challenged by one who participated therein, are of little value in determining the precise question before us. It is undoubtedly the rule in this state, as well as in most states, that a vote to fill offices at general elections is not invalidated by an insufficient election notice where it appears that the electors, by reason of the existence of general laws, knew of the election and of the offices to be filled in time to enable them to express their choice. Such a rule cannot be applied to special elections or to special questions submitted at a general election, for there is no presumption that the voters knew anything about either, there being no general law to apprise them of the fact.
Moreover, so far as the question here considered is concerned, it is not enough to show that the electors knew that a vote was to be taken upon it in time to go to the polls and cast their ballotSi The question, in order to be voted upon intelligently and understandingly, required the collection and consideration of many important data and facts concerning the
It is claimed that the discussions in the public press of the-city of Janesville adequately advised the voters of the fact that the question of the purchase of the waterworks was to be voted upon at the coming spring election. A reference to1 the exhibits appended to the affidavit of Mr. Dougherty, which exhibits purport to give all the items published in the papers-of the city respecting this subject, discloses the fact that on October 17, 1911, the Janesville Daily Gazette informed the voters that the council had taken action looking towards submitting the purchase of the waterworks to the voters at a special election to be held for that purpose. On October 31,. 1911, the Janesville Daily Gazette contained an item to the-effect that the council had the previous evening unanimously passed a resolution directing the city clerk to submit the-question of the purchase of the waterworks by the city at the-next spring election. On the 18th, 20th, and 21st of October this same paper contained items discussing the advisability or nonadvisability of the city purchasing the waterworks. It also contained similar items on November 9 and 15, 1911, and December 27, 1911. On October 17, 1911, the Janesville-Daily Recorder contained an item stating that the purchase by the city of the waterworks would be submitted to the voters at a special election. The exhibits fail to show that either of these two papers, or any others, at any time between December 27, 1911, and March 25, 1912, contained any publication with reference to the question'of Submitting the pur
The cases on the subject are far from harmonious, either-as relating to special elections or general elections, or to tha
In the case of Bauer v. Township Board, 157 Mich. 395, 122 N. W. 121, much relied upon by respondents, the court held that a failure to give the full statutory notice did not invalidate an election upon the question of prohibition. But it said the electors were as well informed of the time, place, and manner of the election and of the issue involved as they would have been if the first publication had been four days earlier. “Probably no issue before the people,” it adds, “was ever more fully discussed and more thoroughly understood by the ■electors.” Moreover, it appeared that a majority of all the qualified voters in the county voted in the affirmative. So the case was one where the facts showed that the statutory purpose of notice was fully met and that the result could not have been otherwise. So, also, in the case of Grove v. Haskell, 24 Okla. 707, 104 Pac. 56, cited by counsel for respondents as a leading case, the court held that in the absence of a showing that the failure to post or publish notices as required had any effect on the result of the election or deprived any voter of an opportunity to vote, the election would not be declared invalid at the suit of one who participated therein.
By the Court. — Order reversed, and cause remanded for further proceedings according to law.