STATE v. CARROLL.
Providence County.
February 6, 1892
17 R.I. 591
The provisions of
An elective meeting for the choice of a mayor, held at the time fixed by the statute, resulted in no choice. A second meeting also resulted in no choice. Both of these were duly notified. A third was ordered December 3d, by the board of aldermen, to take place December 5th, and the city clerk, December 4th, issued his warrant for this meeting.
On quo warranto against the mayor declared elected at this meeting of December 5th.
Held, that the meeting was not legally notified.
Held, further, that notwithstanding this, if on the return of the writ of quo warranto it should appear that a full expression of the popular wish had in fact been given at the meeting of December 5th, the election would be sustained.
The purpose of notification is simply to secure such an expression.
In the case at bar, a demurrer was filed to the information.
Held, that the demurrer should be overruled.
In quo warranto the respondent must aver and prove the facts on which his title to the office claimed depends. It is enough for the information to aver that he holds it without legal authority.
The provisions of
These provisions being directory and not mandatory, an elective meeting held without the seven days’ notice, and after two previous meetings had resulted in no election, does not fall under the condemnation of
Such a meeting is good notwithstanding the defective notice, if it appears that the electors had full knowledge of the meeting, and that a full expression of the popular will had been obtained.
QUO WARRANTO. On demurrer to the information, and subsequently on demurrer to the answer.
This was an information filed by the Attorney General on the relation of certain qualified electors of the city of Pawtucket against the respondent to test his title to the office of mayor of the city.
The respondent demurred to the information.
SECT. 14. Elections of city and state officers, including justices of the peace, members of Congress, and presidential electors, shall be made in ward meetings, which shall be warned and notified by the city clerk, who shall cause notices, stating the time and place for such election and the officers to be chosen, to be posted up at
SECT. 16. Clause 1. All the ballots cast as aforesaid shall be sorted, counted, and certified by the warden and ward clerk, and sealed up and directed in open ward meeting to the city clerk, and be forthwith delivered to him, who shall deliver them to the board of aldermen, and they shall be opened and counted by said board within forty-eight hours after the closing of the polls; and said board shall forthwith declare the result of such election, and shall cause written notices to be given to such persons as may have been elected to said offices.
Clause 2. In case of failure to elect any officer under the provisions of this act, or in case any officer shall die before qualifying, or shall neglect to qualify, or shall refuse to accept the office to which he is elected, the board of aldermen shall order the city clerk to issue his warrant for another election to fill the vacancy, and so on from time to time until all of such offices shall have been filled; and if a vacancy shall occur by death or otherwise in the office of mayor, or in the board of aldermen, the board of aldermen shall order the city clerk to issue his warrants for an election to fill the vacancy. But in case no election has been made of any one or more of the common council at the time of the organization thereof on the first Monday of January in each year, or if a vacancy shall occur in said board at any time during the year, said board shall order the city clerk to call a meeting to fill such vacancy, and he shall call such meeting accordingly; provided, however, that at the first election held under this act, before the organization of the government under the same, the town council shall do all things that are by this section authorized to be done by the board of aldermen, and the town clerk shall do all things that are by this section authorized to be done by the city clerk.
February 6, 1892. MATTESON, C. J. This is an information,
The respondent has demurred to the information.
”
The relators contend that § 14 applies to all elections held under § 16, clause 2, and hence that the ward meetings for the purpose of holding such elections should be warned and notified by the city clerk, by causing notices, stating the time and place of such elections and the officer to be chosen, to be posted up at least seven days before such elections, in three public places in each ward respectively; and that, as the order of the board of aldermen on December 2, 1891, fixed the time of holding the election in question for December 5, 1891, only three days afterwards, so that the city clerk could not post the notices seven days before the election, in three public places in each ward, the election was illegal and void.
The respondent on the other hand contends that § 14 applies only to first elections, but does not extend to a second or adjourned election held in case of a failure to elect at the first or prior election; that such second election is, in effect, merely a second balloting in continuation of the first election.
We find nothing in the statute to warrant such a construction of the words “another election” as the respondent seeks to give them. It contains no provisions such as are contained in
If the election so directed to be ordered is a new and independent election, and not a mere continuation or adjournment of the former, as we feel constrained to hold, we think it must also be held that the provisions of § 14, which purports to regulate the manner of holding elections, that is, all elections, none being excepted from its operation, of city officers, and prescribes the notice to be given, apply to elections directed to be held by § 16, clause 2, and consequently to an election held in case of a failure to elect an officer at a prior election.
Section 14, then, being applicable to an election held under § 16, clause 2, the question arises whether the want of the notice prescribed by § 14 was sufficient to render the election in question void. When the time and place of holding an election are fixed by law, the rule is, that an omission to give the prescribed notice will not invalidate the election. In such a case the provision for notice is considered as directory and not mandatory. The time and place being appointed by law, the elector is bound to take notice, and therefore derives notice from the statute itself. The purpose of the prescribed notice is to give greater publicity to the election, but the authority to hold it comes from the statute. The People v. Cowles, 13 N. Y. 350; The People v. Brenham, 3 Cal. 477; State ex rel. Leal v. Jones, 19 Ind. 356; The People v. Hartwell, 12 Mich. 508; Dishon v. Smith, 10 Iowa, 212; State ex rel. Peacock v. Orvis, 20 Wisc. 235; State ex rel. Lutfring v. Goetze, 22 Wisc. 363; State v. Skirving, 19 Neb. 497; Cooley Constit. Limit. 759, 6th ed. Time and place, however, are gen-
The case at bar, however, is a very different case from McKune v. Weller, supra, even if the election is to be considered as a special election. In that case the election was to fill a vacancy occurring during the term of office, and there was therefore no presumption that the voters had knowledge of it, and it was therefore necessary that the notice should be given to bring the matter to their attention. The election in the present case was not to fill a vacancy occasioned by the death or resignation of the incumbent of an office during the term, but an election because of a failure to elect at a prior election, of which presumably the prescribed notice had been given. As the law fixes the time of holding the election as on the Tuesday following the first Monday in November,1 we may also presume that an election was held on that day, of which the prescribed notice had been given, and which resulted, as did that of December 2d, in a failure to elect. It may easily be imagined that, after two contested elections which resulted in failures to elect, political feeling and enthusiasm would be at a high pitch,
The respondent takes the point that, even if it be held that the board of aldermen did not have power to fix their own time for holding the election, the election was valid because in conformity with the general law governing elections. We do not see that the general law has any application. The office of mayor is a city office. The general law does not cover the election of mayor. The only authority for the election of that officer is to be found in the charter of the city.
The respondent also urges in support of his demurrer, that it does not appear in the information that there was not a full and fair election, and that, even if the notice was irregular, it did not vitiate the election, in the absence of fraud, or of any claim that electors were deprived of their votes by such irregularity. The objections are based upon an erroneous conception of the rule of pleading, which, in informations in the nature of a quo warranto,
The demurrer to the information is overruled.
Nicholas Van Slyck, James M. Ripley & Cyrus M. Van Slyck, for relators.
John M. Brennan, Charles H. Page, George J. West, Thomas W. Robinson & Claude J. Farnsworth, for respondent.
After the demurrer to the information had been overruled, the respondent, February 20, 1892, filed his answer, and the relators demurred to the answer.
July 23, 1892. MATTESON, C. J. After the overruling of his demurrer, the respondent filed a plea in answer to the information, and to this plea the informant has demurred. The first question argued at the hearing on the demurrer is, whether the provision contained in
Ward meetings for the purpose of electing a mayor were held on the Tuesday following the first Monday in November, 1891, the date fixed by
Notice of the first three elections was regularly given in accordance with the requirement of § 14; but the date fixed by the order of the board of aldermen for holding the fourth election being only three days subsequent to the one immediately preceding, it was impossible for the city clerk to comply with the provision of § 14 to give at least seven days’ notice. The notices were in fact posted on December 4th, the day preceding the election. The time for this election was fixed by the board of aldermen in the full belief that they had authority so to fix it, and under a mistaken idea that the provision of § 14 did not apply to an election under § 16, clause 2, in case of a failure to elect at a prior election.
Counsel for the relators concede that where the time and place for an election are fixed by law, the statutory provisions for giving notice of such election are merely directory and not mandatory; but contend that where the time and place are not so fixed, but some board or person is designated to give the notice, the notice of the election given by such board or person, with respect to time and place, must comply strictly with the statutory provisions.
By reason of the fact, we presume, that generally in this country a majority of the votes cast at any election is not required to elect, but a plurality of the votes cast is sufficient, no cases have been cited, or have come to our attention, which are closely analogous to the case at bar. In support of their demurrer, counsel have cited the cases of The People v. Porter, 6 Cal. 26; and Kenfield v. Irwin, 52 Cal. 164. In these cases the elections were special elections in the sense that they were held to fill vacancies in office occurring before the expiration of the full terms for which the incumbents were elected. The elections were held void, because no proclamations by the governor had been made designating the officers to be chosen and the time for holding the elections. These cases do not seem to us to be in point, since in the case at bar the time for holding the election was designated by the board of aldermen, who had authority to designate the time, the question being whether their order designating the particular time for holding the election was void, or merely irregular.
It will be seen from the foregoing review of the cases referred to that they were special elections for special purposes, and of a very different type from the election which we have under consideration. The reasons for holding the provisions for notice in these cases mandatory were much stronger than exist in the present case, since in them the voters would be likely to receive notice only in the method prescribed; while in the case at bar the election was the last of a series of elections held in consequence of failures to elect at prior elections, by reason of neither of the candidates receiving a majority of the votes cast, of all of which the electors had had full notice, and which were, practically, a continuance of the first election, though made distinct elections by the statute. Moreover, in the cases relating to the subscription to the capital stock of a railroad company, or to the issue of bonds by municipal corporations, the elections were held, in pursuance of special legislative authority, for purposes foreign to the ordinary functions of municipal bodies, with reference to which the rule is, that the authority to hold such elections must be clearly conferred and strictly pursued. Harding v. R. R. I. & St. L. R. R. Co. 65 Ill. 90.
Counsel call our attention particularly to the language of the court in George v. Oxford Township, 16 Kans. 72, mentioned above, as clearly enunciating the principle for which they contend. We do not deny the principle so laid down as applicable to that case and others of its class, but we do deny that it is a principle of universal application. In the nature of things, whether the provision of a statute is mandatory or directory in a particular
A careful consideration of the provision for notice contained in § 14, referred to, confirms us in the conclusion that such provision is to be regarded as directory and not mandatory. In the first place, the provision occurs in the section with, and in immediate connection with, the provision for ward meetings for the purpose of general elections, or elections the time and place for holding which are fixed by law, in relation to which it is conceded that the statutory notice is merely directory. The provision for other elections in case of a failure to elect is contained in another distinct section, to wit, § 16, and it is necessary to resort to construction to apply the provision for notice to such elections. See, ante, opinion of February 6th. Is the provision to be regarded as directory merely in regard to the class of elections with which it is immediately connected in the statute, and mandatory in regard to another class of elections with reference to which it is so remotely connected? We see no reason for so holding.
Again, if the provision is to be regarded as mandatory, its requirement must be strictly complied with, not only as to the number of days, but also as to the number of notices posted in each ward, and these notices must also be posted in public places, and remain posted the entire period covered by the requirement. Suppose that through accident or design but two notices instead of three should be posted in one ward, or that one of the notices should happen to be posted in a place not public, or should be torn down a few minutes before the expiration of the full seven days: if the provision is mandatory, and therefore a strict or precise compliance with its terms is necessary, should we not be compelled to hold that an election in such a case was void, though perfectly regular and valid in every other respect? To hold an election void for such slight defects of notice, it may well be thought,
Counsel in support of the demurrer contend, secondly, that the election was void under
Counsel contend, thirdly, that the plea does not bring the case within the intimation in our former opinion that we were not prepared to hold that the election was void, notwithstanding the defect in the notice, if it should be made to appear that the electors had full knowledge of the election of December 5, 1891, and that a full expression of the popular will had been thereby obtained, since it appears that in each election down to and including the election of December 2, 1891, there was polled a constantly increasing vote, while on December 5, 1891, 934 less votes were cast than at the election of December 2d, and 866 less than at the election on November 3d. In answer to this suggestion, it is necessary only to refer to the averments of the answer, admitted by the demurrer, in substance, that the electors had full and actual notice of the elec-
James M. Ripley & Cyrus M. Van Slyck, for relators.
Arthur L. Brown, John M. Brennan, George J. West, Thomas W. Robinson & Claude J. Farnsworth, for respondent.
NOTE. — STINESS, J., did not sit in the above case.