City of Perry v. Davis

The opinion of the court was delivered by Mason, J.: The city of Perry executed bonds for the enlargement of a municipal electric-light plant, which it- presented to the state auditor for registration. The auditor refused to register them by reason of a doubt concerning their validity. To determine the question the city brings mandamus to require their registration. The facts are agreed to, and the case turns upon the sufficiency of the published notice of the holding of the election to vote upon the question of issuing the bonds, the proceedings in all other respects being entirely regular. The statute requires such a notice to be signed by the mayor and city clerk, and to be published in a newspaper for three weeks. (Gen. Stat. 1909, § 745.) Here a notice in proper form was prepared, signed by both the officers named, and given to the printer for publication. But through inadvertence it was published with only the signature of the clerk atti filed, that of the mayor being omitted. In this respect [370] only was there any failure to comply strictly with the requirements of the statute. The matter that was published gave to the electors of the city all the information concerning the election that would have been afforded if the law had been followed with literal exactness. The signature of the mayor could have added nothing to its force except by way of attesting its authenticity, and that was doubtless shown sufficiently for all practical purposes by the city clerk’s signature. It is possible that some well-informed elector, who knew the law required both names to be printed, might have discredited the notice by reason of its not appearing to have been signed by the mayor. That remote possibility is offset by two considerations which were mentioned in Chanute v. Davis, 85 Kan. 188, 116 Pac. 367, as worthy of consideration in determining the consequences of a defective notice. Here an ordinance had been passed calling the election, and fixing the time and place of holding it, which covered the details required to be stated in the notice. As suggested in the case cited, the ordinance may perhaps be given the force of a public law, rendering applicable the rule that a failure to give the required notice does not invalidate an election if the time and manner of holding it are fixed by statute. Moreover, it is shown that those who voted for the bonds constituted not only a majority of those participating in the election, but a majority of all who were entitled to vote thereat. The notice was not the means by which the election was called — its purpose was merely to give additional publicity to what had already been determined and announced. And if all the electors who remained away from the polls had appeared and voted against the bonds the result of the election would not have been changed. In view of all the circumstances we think it clear that the irregularity in the form of the published notice was not so serious as to affect the validity of the bonds. This conclusion is well within the accepted rules. (See 10 A. & E. Encycl. of L. 630; Note, 18 Ann. Cas. 1141; 1 Dillon on Municipal Corporations, 5th ed., § 374; Backus v. City, 123 Minn. 48, 142 N. W. 1042; Briggs v. Raleigh, 166 N. Car. 149, 81 S. E. 1084; State, ex rel. Mullen, v. Doherty, 16 Wash. 382, 47 Pac. 598; Smith v. Board County Comr’s Skagit County, 45 Fed. 725.) The writ is allowed.