Phillips Inv. Co. v. School Dist. No. 5, Bent County
| Decision Date | 14 December 1914 |
| Docket Number | 4103 |
| Citation | 26 Colo.App. 362,144 P. 1129 |
| Parties | PHILLIPS INV. CO. et al. v. SCHOOL DIST. NO. 5, BENT COUNTY, et al. |
| Court | Colorado Court of Appeals |
Error to District Court, Bent County; A. Watson McHendrie, Judge.
Suit by the Phillips Investment Company, a corporation, and others against School District No. 5, Bent County, and others. There was a judgment for defendants, and plaintiffs bring error. Affirmed.
Granby Hillyer, of Lamar, for plaintiffs in error.
Merrill & McCarty, of Lamar, for defendants in error.
The contention involved in this case presents a naked question of law. The facts which are either conceded or not in dispute are as follows: The board of directors of the school district, on petition properly presented, held a special election for the purpose of voting bonds with which to construct and equip a school building in said district; the election was held, resulting in a vote of 13 to 9 in favor of the issuance of the bonds. The plaintiffs in error, on behalf of themselves and all other taxpayers similarly situated brought an injunction proceeding for the purpose of restraining the issue or sale of the bonds. After issues were joined a temporary restraining order was issued by the judge of the district court, but upon final hearing the restraining order was dismissed. The court made a general finding in favor of the defendants in error and denied plaintiffs any relief.
The notices required by the statute for elections of this character were posted on a Sunday, just 20 days before the election was called. The statute prescribes 20 days' notice. Plaintiffs in error contend that the posting of the notices on Sunday was illegal; that such posting was in the nature of process, and that under the ruling in Schwed v Hartwitz, 23 Colo. 187, 47 P. 295, 58 Am.St.Rep. 221, service of process on Sunday in a civil action is invalid in this state. The second and only other contention advanced on behalf of plaintiffs in error is as to the canvassing of the vote, or rather the failure, as it is alleged, of the board of directors to canvass the vote. We will consider the two contentions advanced by plaintiffs in error in the order stated.
1. It was ruled in Schwed v. Hartwitz, supra that the publication of a tax sale notice in a Sunday paper is void, and a sale made thereunder accordingly illegal. The tax sale notice involved in the Schwed Case was published in a Sunday paper only, that is, all the issues of the paper containing the tax sale notice were published on Sunday. It should be borne in mind in this connection that the courts of this state, in common with the majority of the courts of the country, have resolved all doubts in matters of procedure and compliance with statutory requirements in favor of the fee owner in tax sale proceedings. The same strictness is not required, as we shall later on point out, in matters pertaining to elections, even where such elections are conducted for the purpose of determining upon a bond issue. We have no authority or disposition to question the conclusions reached in the Schwed Case, but we are not disposed to think that the rule therein announced as to Sunday publications should be extended and made applicable to or decisive of election proceedings such as those here under consideration.
If we are correct in our conclusion that the posting of the election notices on Sunday was valid, then the statutory requirement of 20 days was satisfied, and we might, with propriety, conclude this branch of the case without further comment; but we are satisfied that by the great weight of authority the judgment of the trial court should be sustained, even though Sunday, the day on which the notices were posted, be not considered in reckoning the time the notices were posted, since there is no allegation in the complaint, nor was there any proof on the trial, that the result of the election was in any wise affected (except technically, perhaps) by any defect in the posting of the notices.
In Seymour v. Tacoma, 6 Wash. 427, 33 P. 1059, it was held that an election notice, published but 26 days and posted but 26 days, when the law required publication and posting for 30 days, was a substantial compliance with the requirements of publication and posting, where it was plain that the omission had no effect upon the results of the election. In the Seymour Case the Washington court had under consideration the question of the legality of a bond issue. See, also, Ardmore v. State, 24 Okl. 862, 104 P. 913; Town of Grove v. Haskell, 24 Okl. 707, 104 P. 56.
In the fifth edition of Dillon on Municipal Corporations (vol. 2) § 981, it is said that:
"When there has been a substantial compliance with the requirements of the law, regulating the manner in which elections to pass upon an issue of bonds shall be held, and it appears that there has been a fair election thereunder the election will not be affected by technical irregularities, and this rule has been held to apply to the time and manner of the publication of notice."
On page 1386, in a footnote, Judge Dillon cites numerous authorities to support the text quoted; and in volume 1, § 374, of the same work, Judge Dillon says:
"It is a canon of election law that an election is not to be set aside for a mere informality or irregularity which cannot be said in any manner to have...
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