Kerlin v. City of Devils Lake

• Decision Date: 26 April 1913
• Citation: 141 N.W. 756,25 N.D. 207
• Court: North Dakota Supreme Court

141 N.W. 756

25 N.D. 207

KERLIN v. CITY OF DEVILS LAKE, Peter J. McClory, as Mayor of the City of Devils Lake; and S.C. Jones, as City Auditor of the City of Devils Lake

Supreme Court of North Dakota

April 26, 1913

An appeal from the District Court for Ramsey County, Winchester Special J., from an order vacating an injunctional order.

Modified.

Appellant recovered judgment against defendant city for costs and disbursements on this appeal.

Flynn & Traynor, for appellant.

The amount of the bonds sought to be voted must be stated definitely in the resolution, notice, and ballot. Stern v. Fargo, 18 N.D. 289, 26 L.R.A.(N.S.) 665, 122 N.W 403.

There is no distinction between the statements, "not exceeding" and "not to exceed," referring to the amount of the bond, and neither is sufficiently definite. Ibid.; State ex rel. Schultze v. Manchester Twp Committee, 61 N.J.L. 513, 40 A. 589; State ex rel. Lexington & St. L. R. Co. v. Saline County Ct. 45 Mo. 242; Dawson v. Dawson Waterworks Co. 106 Ga. 696, 32 S.E. 907; Hillsborough County v. Henderson, 45 Fla. 356, 33 So. 997; Smith v. Dublin, 113 Ga. 833, 39 S.E. 327.

Dual questions, when not naturally related or connected, but relate to two distinct subjects, cannot be submitted to the voters in the form of one question, and such ballot is improper. Stern v. Fargo, 18 N.D. 289, 26 L.R.A.(N.S.) 665, 122 N.W. 403; Hughes v. Horsky, 18 N.D. 474, 122 N.W. 799.

A majority vote means a majority of all the legal voters of a city, whether voting or not. State ex rel. Little v. Langlie, 5 N.D. 594, 32 L.R.A. 723, 67 N.W. 958; State ex rel. McCue v. Blaisdell, 18 N.D. 31, 119 N.W. 366; State ex rel. Davis v. Fabrick, 18 N.D. 402, 121 N.W. 65, distinguished.

There is a distinction between such cases and a case where the proposition is to create a debt against the municipality. Williamson v. Aldrich, 21 S.D. 13, 108 N.W. 1063; State ex rel. Clark v. Stakke, 22 S.D. 228, 117 N.W. 129.

The increasing of indebtedness of a city, or the issuing of bonds, must be covered by ordinance duly passed and published. N.D. Rev. Codes 1905, §§ 2675, 2676, 2678; Engstad v. Dinnie, 8 N.D. 1, 76 N.W. 292; Roberts v. Fargo, 10 N.D. 230, 86 N.W. 726.

The ballots did not state the questions to be voted upon, fully and fairly, and the election was, therefore, invalid. N.D. Rev. Codes 1905, §§ 616, 618.

There are four wards in the city of Devils Lake, each a voting precinct, and this election was held in the first ward--none other of the polling places being open. There is no authority for holding any election in such manner. Rev. Codes 1905, §§ 2678, 2980, 8597; Rev. Codes 1905, § 2743, as amended by Sess. Laws 1911, chap. 65; Rev. Codes 1905, § 2744, as amended by Sess. Laws 1911, chap. 66.

It is a general rule that an election held at an improper place is absolutely void, without proof of fraud or injury. 10 Am. & Eng. Enc. Law, 684-691; Perry v. Hackney, 11 N.D. 148, 90 N.W. 483; State ex rel. Byrne v. Wilcox, 11 N.D. 329, 91 N.W. 955; Whitcomb v. Chase, 83 Neb. 360, 119 N.W. 673, 17 Ann. Cas. 1090; 15 Cyc. 310; Bean v. Barton County Ct. 33 Mo.App. 635; Territory ex rel. Higgins v. Steele, 4 Dak. 78, 23 N.W. 91; State ex rel. McCarthy v. Fitzgerald, 37 Minn. 26, 32 N.W. 788; Elvick v. Groves, 17 N.D. 561, 118 N.W. 228.

Section 688 of the revised codes does not apply to elections such as the one in this case. Injunction is the proper remedy in cases like the one at bar. Rev. Codes 1905, §§ 605, 698; State ex rel. Little v. Langlie, 5 N.D. 594, 32 L.R.A. 723, 67 N.W. 958; State ex rel. Butler v. Callahan, 4 N.D. 481, 61 N.W. 1025; 15 Cyc. 394; Calaveras County v. Brockway, 30 Cal. 325; Rev. Codes 1905, § 738, as amended by Sess. Laws 1911, chap. 128; Fitzmaurice v. Willis, 20 N.D. 372, 127 N.W. 95; Farren v. Buffalo County, 5 Dak. 36, 37 N.W. 756; Const. No. 121, as amended by art. 2, of Amendments; State ex rel. McCue v. Blaisdell, 18 N.D. 31, 119 N.W. 360; Code 1905, § 2979, as amended by Sess. Laws 1911, chap. 76; Donovan v. Allert, 11 N.D. 289, 58 L.R.A. 775, 95 Am. St. Rep. 720, 91 N.W. 441.

F. T. Cuthbert, City Attorney for respondents (A. R. Smythe, of counsel).

The resolution, notice, and ballot are sufficiently definite and certain as to purpose and amount of the bonds to be issued. Stern v. Fargo, 18 N.D. 289, 26 L.R.A.(N.S.) 665, 122 N.W. 403.

A majority vote of those voting is all that is necessary to carry a proposition like that involved in this case. Rev. Codes 1905, § 2678; State ex rel. Little v. Langlie, 5 N.D. 594, 32 L.R.A. 723, 67 N.W. 958; State ex rel. McCue v. Blaisdell, 18 N.D. 31, 119 N.W. 360; Fabro v. Gallup, 15 N. M. 108, 103 P. 272; St. Joseph Twp. v. Rogers, 16 Wall. 646, 21 L.Ed. 328; Cass County v. Johnston, 95 U.S. 368, 24 L.Ed. 417; Carroll County v. Smith, 111 U.S. 556, 28 L.Ed. 517, 4 S.Ct. 539; Pacific Improv. Co. v. Clarksdale, 20 C. C. A. 635, 41 U.S. App. 68, 74 F. 528; Lamb v. Cain, 129 Ind. 516, 14 L.R.A. 518, 29 N.E. 13; South Bend v. Lewis, 138 Ind. 516, 37 N.E. 986; Taylor v. McFadden, 84 Iowa 270, 50 N.W. 1070; Montgomery County Fiscal Ct. v. Trimble, 104 Ky. 638, 42 L.R.A. 738, 47 S.W. 773; Shearer v. Bay County, 128 Mich. 556, 87 N.W. 789; Tinkel v. Griffin, 26 Mont. 432, 68 P. 859; Davis v. Brown, 46 W.Va. 719, 34 S.E. 839.

The ballots used in this election stated fully and fairly the question to be voted upon. Leavenworth v. Wilson, 69 Kan. 74, 76 P. 400, 2 Ann. Cas. 367, distinguished.

The official newspaper of a city may be designated by resolution of the city council. Rev. Codes 1905, §§ 2677, 2678, 2980; Ordinance No. 59, City of Devils Lake.

The mere fact that there was but one voting place, at this election, amounted at most to an irregularity, and did not render the election void. State ex rel. Brown v. Westport, 116 Mo. 582, 22 S.W. 888; Lebanon Light & Magnetic Water Co. v. Lebanon, 163 Mo. 246, 63 S.W. 809; Davis v. State, 75 Tex. 424, 12 S.W. 957; Bell v. Faulkner, 84 Tex. 187, 19 S.W. 480; Peard v. State, 34 Neb. 372, 51 N.W. 828; Bowers v. Smith, 111 Mo. 45, 16 L.R.A. 754, 33 Am. St. Rep. 491, 20 S.W. 101; Stemper v. Higgins, 38 Minn. 222, 37 N.W. 95; Preston v. Culbertson, 58 Cal. 209; Sprague v. Norway, 31 Cal. 173; Farrington v. Turner, 53 Mich. 27, 51 Am. Rep. 88, 18 N.W. 544; Zeiler v. Chapman, 54 Mo. 502; Statutory Notice, See McPike v. Pen, 51 Mo. 63; State ex rel. Byrne v. Wilcox, 11 N.D. 329, 91 N.W. 955; Perry v. Hackney, 11 N.D. 148, 90 N.W. 483.

An irregularity in an election, which is free from fraud, and which does not affect the result, is harmless, and does not render the election void. Territory ex rel. Sherman v. Mohave County, 2 Ariz. 248, 12 P. 730; San Luis Obispo County v. White, 91 Cal. 432, 24 P. 864, 27 P. 756; Allen v. Glynn, 17 Colo. 338, 15 L.R.A. 743, 31 Am. St. Rep. 304, 29 P. 670; Williams v. Shoudy, 12 Wash. 362, 41 P. 169; Ackerman v. Haenck, 147 Ill. 514, 35 N.E. 381; Parvin v. Wimberg, 130 Ind. 561, 15 L.R.A. 775, 30 Am. St. Rep. 254, 30 N.E. 790; Sterritt v. McAdams, 99 Ky. 37, 34 S.W. 903; Smith v. Crutcher, 92 Ky. 586, 18 S.W. 521; State ex rel. Waggoner v. Russell, 34 Neb. 116, 15 L.R.A. 740, 33 Am. St. Rep. 625, 51 N.W. 465; People v. Cook, 8 N.Y. 67, 59 Am. Dec. 451; People v. McManus, 34 Barb. 625, 22 How. Pr. 27; People ex rel. Lefever v. Ulster County, 34 N.Y. 273; Hannah v. Shepherd, Tex. Civ. App. , 25 S.W. 137; Soper v. Sibley County, 46 Minn. 274, 48 N.W. 1112; Howser v. Pepper, 8 N.D. 484, 79 N.W. 1018; Bowers v. Smith, 111 Mo. 45, 16 L.R.A. 754, 33 Am. St. Rep. 491, 20 S.W. 101; Farrington v. Turner, 53 Mich. 27, 51 Am. Rep. 88, 18 N.W. 544; Peard v. State, 34 Neb. 372, 51 N.W. 828.

Registration is not necessary to a valid municipal election for special purposes. Madison v. Wade, 88 Ga. 699, 16 S.E. 21; Davis v. Dawson, 90 Ga. 817, 17 S.E. 110; Seymour v. Tacoma, 6 Wash. 138, 32 P. 1077; Graves v. Seattle, 8 Wash. 248, 35 P. 1079; State ex rel. Kellogg v. Shepherd, 42 Kan. 360, 22 P. 428; State ex rel. Eble v. Leavitt, 33 Neb. 285, 49 N.W. 1097.

The fact that such election is held at one general, centrally located polling place, even though there are other precincts in the city, does not invalidate the election. State ex rel. Byrne v. Wilcox, 11 N.D. 329, 91 N.W. 955.

Injunctional relief is not proper in this class of cases. Beal v. Ray, 17 Ind. 554; Sanders v. Metcalf, 1 Tenn.Ch. 419.

GOSS J. SPALDING, Ch. J. (dissenting).

OPINION

GOSS, J.

This is an appeal from an order of the district court of Ramsey county, dissolving an injunctional order and denying a temporary injunction pending suit. It was heard upon the verified complaint and supporting affidavit and exhibits, together with a verified answer and counter affidavits. The proceeding involves the validity of an election, called and held to increase the debt limit and issue bonds in the sum of $ 33,000 for the purpose of establishing a municipal light plant in the city of Devils Lake. Questions of law alone are presented. The facts are not in conflict. The case naturally divides into two general divisions: (1) Validity or invalidity of the special election; and (2) the election being sustained, what were the results accomplished thereby?

Appellant urges that the election held was void for the reason that the city of Devils Lake at the time of the election, and for some time prior thereto, consisted of four wards, from each of which aldermen were elected, and that each ward constituted an election precinct under the express provisions of § 2743, Rev. Codes 1905, as amended by chapter 65 of the Session Laws of 1911, in force when the election occurred on November 6, 1911. That said city contained a population of over 5,000 people, with approximately 700 legal voters residing therein. That instead of holding an...