Demaree v. Johnson

• Decision Date: 13 May 1898
• Docket Number: 18,193
• Citation: 50 N.E. 376,150 Ind. 424
• Parties: Demaree et al. v. Johnson et al
• Court: Indiana Supreme Court

50 N.E. 376

150 Ind. 424

Demaree et al. v. Johnson et al

No. 18,193

Supreme Court of Indiana

May 13, 1898

Original Opinion of April 7, 1898, Reported at: 150 Ind. 419.

OPINION

Howard, C. J.

The first specification of remonstrance against the levy of the railroad aid tax in this case was that no notice of the election had been given. The demurrer admitted the truth of this averment, and the court could not go elsewhere to find it untrue. As there could be no legal imposition of the tax without notice to the people of the election to be held therefor, it must follow that the demurrer to the first specification of remonstrance should have been overruled.

The second and third specifications of remonstrance were to the effect that the auditor had not delivered to the sheriff, and the sheriff had not posted the ten copies of the notice of election provided for in the statute. Counsel for appellee however, insist that the notices required by the statute might have been delivered to some one else than the sheriff, and might have been duly posted by such other person, and hence that the people might have received the actual notice provided for in the statute, and that the failure to comply with the letter of the statute was, consequently, but an irregularity, and, as such, not sufficient to invalidate the election.

In Beal v. Ray, 17 Ind. 554, it was held that a vacancy in office could not be filled at the time of a general election, when the vacancy had not occurred long enough before the election to permit the giving of the proper statutory notice. But if the vacancy had occurred long enough before the election to enable the election officers to give the required notice, then the failure to give the notice would not invalidate the election, unless it should appear that such want of notice deprived voters of knowledge of the time and place of the election, so as to change the result. The simple failure of the official to do his duty in the giving of the notice could not, of itself, deprive the people of their right to elect, when an election was provided for by law. State v. Jones, 19 Ind. 356, 81 Am. Dec. 356; City of Lafayette v. State, 69 Ind. 218. As said by Mr. Cooley, Const. Lim. 603, "Where, however, both the time and the place of an election are prescribed by law, every voter has a right to take notice of the law, and to deposit his ballot at the time and place appointed, notwithstanding the officer whose duty it was to give notice of the election has failed in that duty."

An important distinction, however, is to be observed between general and special elections. The time, place, and manner of holding the former being fixed by law, the electors may, and indeed must, take notice of them, and as to such elections the statutory requirement of public notice may be regarded as directory only. But as to special elections it is otherwise. As to filling vacancies, for...