State ex rel. Jackson v. Board of County Commissioners
State ex rel. Jackson v. Board of County Commissioners
Opinion of the Court
Are the provisions of Section 2293-21, General Code, providing for publication of notice of elections, mandatory or directory? The section reads as follows:
“The election shall be held at the regular places for voting in such subdivision and shall be conducted, canvassed and certified in the same manner as regular elections in such subdivision for the election of county officers. Notice of the election shall be published in one or more newspapers of general circulation in the subdivision once a week for four consecutive weeks prior thereto, stating the amount of the proposed bond issue, the purpose for which such bonds are to be issued, the maximum number of years during which such bonds shall run and the estimated average additional tax rate, outside of the fifteen mill limitation, as certified by the county auditor. ’ ’
The question involved here is not one of substantial compliance with the statute. We have not the case of some mere clerical defect in publication, or failure to publish for the entire statutory period.
It could hardly be argued that the word “shall,” which occurs twice in the first sentence of the section, “The election shall be held at the regular places for voting * * # and shall be conducted * * * in the same manner as regular elections * * * for the election of county officers,” is directory only, and that there is a discretion in the election officials to decide whether or not the election shall be held, where it shall be held, and how it shall be conducted. If the term is mandatory in the first sentence, why should the third “shall,” in the same section, be.
The purity of elections necessarily is dependent upon the knowledge and notice that the individual voter has of the character, time and place of each particular election. To grant a discretion to election officials in the method of giving such notice would invest the servants of the public instead of the public itself with the sovereign power. The statute is clearly mandatory.
Moreover, even though the election had been regular, no clear legal duty rested upon the county commissioners to issue the bonds. Hence the writ will be denied.
Writ denied.
Reference
- Full Case Name
- The State, ex rel. Jackson v. Board of County Commissioners of Fayette Co.
- Status
- Published