Weisgerber v. Nez Perce County

• Citation: 197 P. 562,33 Idaho 670
• Parties: PHILIP WEISGERBER, Appellant, v. NEZ PERCE COUNTY, a Municipal Corporation, Respondent
• Decision Date: 16 April 1921
• Court: United States State Supreme Court of Idaho

197 P. 562

33 Idaho 670

PHILIP WEISGERBER, Appellant, v. NEZ PERCE COUNTY, a Municipal Corporation, Respondent

Supreme Court of Idaho

April 16, 1921

ELECTIONS-POSTING OF NOTICES-MANDATORY AND DIRECTORY PROVISIONS OF THE STATUTE.

1. Under a statute which provides that the notices of an election posted in the several precincts shall name the place of holding such election, the designation of the polling place in the notice as "the usual voting place" is a substantial compliance with the statute where it appears that there were no changes in the boundaries of the election precincts, or in the polling places, for seven years preceding the election.

2. Statutory directions as to the time and manner of giving notice of elections are mandatory upon the officers charged with the duty of calling the election, and will be upheld strictly in a direct action instituted before an election but after an election has been held, such statutory requirements are directory unless it appears that the failure to give notice for the full time specified by the statute has prevented electors from giving a full and free expression of their will at the election or unless the statute contains a further provision to the effect that failure to give notice for the statutory time will render the election void.

3. The failure of the electors to organize an election board and take part in the election in two precincts of the county does not invalidate the election.

4. Proof by affidavit of the posting of notices of election is not required to be filed with the board of county commissioners. The facts with reference to the posting of notices may be determined by any competent proof.

5. The law does not require that notices of election be posted by designated officials only. They may be posted by private citizens.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Wallace N. Scales, Judge.

Action to enjoin the issuance of county road and bridge bonds. Judgment of dismissal affirmed.

Judgment affirmed. Costs awarded to respondent.

Ewing W. Stephens, for Appellant.

Since the law does not fix the time for holding special elections the provisions of the law as to notice are mandatory, and the election is void unless notice is given in the manner provided by the statute. (State v. Echols, 41 Kan 1, 20 P. 523; Guernsey v. McHaley, 52 Ore. 555, 98 P. 158; Hatfield v. City of Covington, 177 Ky. 124, 197 S.W. 535.)

"The failure to publish the notice of a special election for the full time required by law is a fatal defect rendering the election void and preventing the lawful issuance of bonds which depend upon it for their validity." (Eberhardt Const. Co. v. Board of Commrs. of Sedgwick Co., 100 Kan. 394, 164 P. 281; Shinall v. City of Cartersville, 144 Ga. 219, 87 S.E. 290.)

The failure to post notices of election as required by statute is fatal. (Montgomery County Commrs. v. Henderson, 122 Md. 533, 89 A. 858.)

Leo McCarty and Eugene A. Cox, for Respondent.

It is essential that the electors should have notice of the time, place and objects of the election--that is, they should have knowledge of them; but an omission to follow the particular mode provided by statute for publishing such notice may not render the election void, and will not, if the electors have actual notice, and do, in fact, take part in the election. (McCrary on elections, 4th ed., par. 178, p. 134; Dishon v. Smith, 10 Iowa 212; Huffaker v. Edgington, 30 Idaho 179, 163 P. 793; Lansdon v. State Board of Canvassers, 18 Idaho 596, 111 P. 133; McGrane v. County of Nez Perce, 18 Idaho 714, Ann. Cas. 1912A, 165, 112 P. 312, 32 L. R. A., N. S., 730; Harper v. Dotson, 32 Idaho 616, 187 P. 270; Baker v. Scott, 4 Idaho 596, 43 P. 76; Bowers v. Smith, 111 Mo. 45, 33 Am. St. 491, 20 S.W. 101, 16 L. R. A. 754.)

"The principle underlying all these decisions is that the rights of the voters should not be prejudiced by the errors or wrongful acts of the election officers, unless it be made to appear that a fair election was prevented by reason of the alleged irregularities." (Pickett v. Board of County Commrs., 24 Idaho 200, 133 P. 112; Ball v. Campbell, 6 Idaho 754, 59 P. 559; Platt v. City of Payette, 19 Idaho 470, 114 P. 25; Corker v. Village of Mountainhome, 20 Idaho 32, 116 P. 108; Sommercamp v. Kelly, 8 Idaho 712, 71 P. 147.)

Defects in the form, posting and publication of notices of election are considered and the authorities are reviewed in Town of Grove v. Haskell, 24 Okla. 707, 104 P. 56; Hill v. Skinner, 169 N.C. 405, 86 S.E. 351; Wheat v. Smith, 50 Ark. 266, 7 S.W. 161; Gollar v. City of Louisville, 187 Ky. 187, 448, 219 S.W. 421; Leary v. Young, 55 Mont. 275, 176 P. 36.

Where the result of the election is not affected, the failure to designate polling places or the designation of the polling places as "the usual voting place" or "the regular voting place" is immaterial. (Manly v. Board of Commrs., 46 Colo. 491, 104 P. 1045; Kline v. Mayor and Council of Streator, 78 Ill.App. 42; State v. Hackman, 273 Mo. 670, 202 S.W. 7; Hurd v. City of Fairbury, 87 Neb. 745, 128 N.W. 638; Board of County Commrs. v. Security Trust Co., 164 N.C. 301, 80 S.E. 230; State v. Carbon County, 36 Utah 394, 104 P. 222; Moyle v. Board of County Commrs., 53 Utah 352, 178 P. 918.)

RICE, C. J. Budge, McCarthy, Dunn and Lee, JJ., concur.

OPINION

RICE, C. J.

This action was commenced by appellant, a resident and taxpayer of Nez Perce county, to enjoin the issuance of bonds for the purpose of constructing and repairing roads and bridges.

Appellant contends that the election authorizing issuance of the bonds was illegal, for the reason that the notices posted in the various precincts of the county were insufficient in the following particulars:

(1) That the notices posted in the several precincts did not describe the polling place in each precinct with particularity, but only as "the usual voting place."

(2) That in six of the twenty-five voting precincts of the county, the notices were not posted for twenty days as required by the statute, but for a less time ranging from ten to nineteen days.

(3) That in two precincts an election was not held because of failure of the electors therein to organize.

(4) That in two precincts, no affidavits of posting were filed.

(5) That notices of election were not posted by officers of the law, but by private citizens.

We will take up and discuss in order the objections of appellant as set out above.

First: The court found that there had been no changes in the boundaries of the election precincts, nor in the polling places, for seven years preceding the election in question. The designation of the place where the election would be held as "the usual voting place" was sufficient to apprise the voters of the actual place where the polls would be opened. The notice, specifying that the election would be held at "the usual voting place" was a substantial compliance with the requirements of the statute. (Hurd v. City of Fairbury, 87 Neb. 745, 128 N.W. 638; Board of County Commrs. v. Security Trust Co., 164 N.C. 301, 80 S.E. 230; State v. Bernier, 98 Minn. 1, 38 N.W. 368.)

Second: Our statute (C. S., sec. 3527) contains the following provision: "The notices herein provided for shall be posted, or posted and published, at least twenty days before such election."

It is evident that the requirement as to time cannot be substantially complied with unless it is literally complied with. A requirement that the notice shall be posted at least twenty days cannot be substantially complied with by posting for a less number of days. The question relates to the mandatory nature of the statute.

In some jurisdictions it is held that a strict compliance with the statutory requirements as to the time of giving notice of an election is an essential prerequisite to its validity. (City of Miami v. Romfh, 66 Fla. 280, 63 So. 440; Guernsey v. McHaley, 52 Ore. 555, 98 P. 158; State v. Staley, 90 Kan. 624, 135 P. 602; Hatfield v. City of Covington, 177 Ky. 124, 197 S.W. 535; State v. Echols, 41 Kan. 1, 20 P. 523; Montgomery County Commrs. v. Henderson, 122 Md. 533, 89 A. 858.)

However, we are of the opinion that the correct rule, and the one supported by the great weight of authority may be stated as follows: Statutory directions as to the time and manner of giving notice of elections are mandatory upon the officers charged with the duty of calling the election, and will be upheld strictly in a direct action instituted before an election; but after an election has been held, such statutory requirements are directory unless it appears that the failure to give notice for the full time specified by the statute has prevented electors from giving a full and free expression of their will at the election, or unless the statute contains a further provision, the necessary effect of which is that failure to give notice for the statutory time will render the election void. (Napton v. Meek, 8 Idaho 625, 70 P. 945; Harper v. Dotson, 32 Idaho 616, 187 P. 270; Lansdon v. State Board of Canvassers, 18 Idaho 596, 111 P. 133; Hill v. Skinner, 169 N.C. 405, 86 S.E. 351; Jones v. State, 153 Ind. 440, 55 N.E. 229; Town of Grove v. Haskell, 24 Okla. 707, 104 P. 56; Ellis v. Karl, 7 Neb. 381; Seymour v. City of Tacoma, 6 Wash. 427, 33 P. 1059; State v. Doherty, 16 Wash. 382, 58 Am. St. 39, 47 P. 958; Wheat v. Smith, 50 Ark. 266, 7 S.W. 161; City of Albuquerque v. Water Supply Co., 24 N.M. 368, 174 P. 217; Lowe v. Consolidated School Dist., 79 Okla. 115, 191 P. 737, 5 L. R. A. 519; City of Loveland v....