State v. Carroll , 17 R.I. 591 ( 1892 )

This is an information, in the nature of a quo warranto, to try the title of the respondent to the office of mayor of the city of Pawtucket. It sets forth that ward meetings for the election of city officers were legally held in Pawtucket on December 2, 1891; that the ballots were legally returned and counted by the board of aldermen on December 3, 1891, within forty-eight hours after the closing of the polls, in accordance with the provisions of Pub. Laws R.I. cap. 474, § 16, clause 1; that the board of aldermen forthwith, on the date last named, declared the result of the election of mayor to be as follows: "Hugh J. Carroll has 2,111 ballots; Albert R. Sherman has 1,557 ballots; David J. White has 575 ballots; Charles F. Burnham has 1 ballot; Frederic C. Sayles has 1 ballot, and there is no election;" that thereupon the board of aldermen, on the same day, ordered the city clerk to issue his warrant for another election, to be held on Saturday, December 5, 1891; that thereupon the city clerk, on December 4, 1891, issued his warrant for the election so ordered to be held on December 5, 1891, and warned and notified the electors of the city of Pawtucket to assemble in ward meetings on December 5, 1891, at eight o'clock, in the various ward rooms, and afterwards, in the afternoon of the same day, caused notices stating the time and place of such election, and the officer to be chosen, to be posted in twenty public places in the city. The information also goes on to state that, in pursuance of the action of the board of aldermen aforesaid, a pretended election was held on December 5, 1891, and that the respondent received a majority of all the ballots given in for mayor at such pretended election, and avers that said election was illegal and void; and that the respondent, on January 4, 1892, entered upon and used and exercised, and from that time to the filing of the information has continued to use and exercise, without lawful warrant, the office of mayor of said city, etc.

The respondent has demurred to the information.

Pub. Laws R.I. cap. 474, of March 27, 1885, is entitled "An Act to establish the city of Pawtucket." Section 14 of that act provides that "elections of city and state officers . . . 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 least seven days before such election, in three public places in each ward respectively." . . . Section 16, clause 2, of the same act provides that "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 such offices shall have been filled."

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 Pub. Stat. R.I. cap. 10, §§ 18, 22, whereby an election stands adjourned to a subsequent day, and whereby, in case of a failure to elect on the first balloting, a warrant is issued by the mayor, if the election is held in a city, to the wardens of the several wards, or by the president of the town council if the election is held in a town divided into voting districts, to the moderators of the several district meetings, directing the election to proceed on the day to which the meetings stand adjourned; nor does it contain any provision authorizing an adjournment or continuance of the election on a subsequent day. It evidently contemplates that when the votes have been given in, returned, and counted, and the result declared, that the election is at an end. In case of a failure to elect at that election, the board of aldermen are directed to order the city clerk to issue his warrant for another election, that is, a new election. This view is strengthened by the consideration that the direction to order the city clerk to issue his warrant for another election is not limited simply to the case of a failure to elect, but extends also to the case of an officer who shall die before qualifying, or shall neglect to qualify, or shall refuse to accept the office to which he is elected, in which cases, unquestionably, the election must be a new and independent election.

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 generally regarded as of the substance of an election, and hence it is essential, to give validity to an election, that the electors should have notice. In McKune v. Weller, 11 Cal. 49, it was held that the statute requiring the governor to issue his proclamation in case of a special election to fill a vacancy, occurring not by expiration of the term, but by death or resignation before the term expired, was mandatory, and hence that the proclamation was an essential prerequisite to such an election. On the other hand, it has been held in numerous cases that if the electors in fact have notice, and there is no reason to believe that any considerable or material number have been deprived of the opportunity to vote by the omission to give the statutory notice, and as large a vote has been polled as is usual in such elections, the election will be sustained, although the statutory notice has not been given. Wheat v. Smith, 50 Ark. 266, 277;Commonwealth v. Smith, 132 Mass. 289; State ex rel. Peacock v.Orvis, 20 Wisc. 235; State ex rel. Chase v. McKinney, 25 Wisc. 416; Dishon v. Smith, 10 Iowa, 212; State v. Skirving, 19 Neb. 497;State v. Thayer, 47 North Western Reporter, 704.

The case at bar, however, is a very different case fromMcKune 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, and that electors of every shade of opinion would be on the alert, and that, therefore, a less notice than that prescribed by § 14 would amply suffice to obtain a full expression of the popular will. As the only purpose of giving notice is to obtain such an expression, we are not prepared to hold that, if it should be made to appear by return on the writ that the electors had full knowledge of the election held on December 5, 1891, and that a full expression of the popular will had been thereby obtained, that the election so held was void, notwithstanding the fact that the prescribed notice was not given. In Wheat v.Smith, 50 Ark. 277, the court remarks: "When a special election to fill a vacancy is ordered, there is no presumption that the voters know the date fixed by the writ of election, and they must be informed of it. But the established rule is, that the particular form and manner pointed out by the statute for giving notice is not essential. Actual notice to the great body of electors is sufficient. The question in such cases is, whether the want of statutory notice has resulted in depriving sufficient of the electors of the opportunity to exercise their franchise to change the result of the election." As the case is before us only on demurrer to the information, we have no facts except such as are set out in the information, and the information shows no facts in regard to the election of December 5, 1891, except that the respondent received a majority of the votes cast.

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, differs from that in ordinary cases. In such informations it is only necessary to aver that the respondent is in possession of the office without lawful authority. It is for the respondent, who is called upon to show by what authority he holds the office, to aver the facts upon which his title to it depends. High on Extraordinary Legal Remedies, §§ 712, 713, 716, and cases cited.State v. Kearn, ante, p. 391.

The demurrer to the information is overruled.

¹ By Pub. Laws R.I. cap. 637, § 1, of May 5, 1887.