Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1883-03-11
An opipion

10 his Honor the Mayor and the Honorable
city Council of the city OF Fort Worth:
GrNri.ENES:--At your request. as
city attorney, am asked for an opin-
ion in writing, whether the election
on the Sd day of April, 1883. will be
legal and valid election. Art. 3I5,
page 250 Of the revised statute Of 1879
says: IAN election shall be held in
each of the wa vds of said city on the
first Tuesday in April next. after the
acceptance of this provision of this
place or places rs the city council
thirty days previous notice
ton in one or more newspapers OF
said city,
On the day of March. 1883, the
mayor of said city ordered an election
! to take place on the Ord day of April.
\ 1888. Now, thirty days notice moi be-
| ing given, will the election he invalid
! in consequence thereof?
Cooley, in Constitutional Limita-
tations, page 6o2, says: when the
/ time of an election is prescribed by
law, every voter has right TO take
notice of the law, and deposit his bal
lot mt the time and place appointed,
Notwithstanding the officer whose duty
ii is to give notice of the election has
failed in that duty The notice
TO be given is only additional
to that which the statute gives
and is prescribed for the purpose of
greater publicity but the right TO
hold the election comes from the
statute and not from the official no.
tice.r
The following authorities hold the
law to be as laid down by Mr.. Cooley:
People VS.. Combs, ID. \. Y. 200;
People VS.. Brehm. 8 Cal. 447; state
W.. Jones, 10. Ind. 35T; People VS.,
Hartwell, 10. Mich. sos; Dishen va
Smith, TO-. Penn. 2l2 State VS.. orvis
20. Wis. 235. In the case of the State
ex. rel. Peacock VS.. Orvis, 20. Wis
2S5, Judge Dover says: "The law pro
vides that the election shall be helc
on Tuesday succeeding the frs
Monday of November of eaci
year, that chapter seven of the revised
statutes REFUSES notice of the election
of sheriff shall be given, yet thu
omission TO do SO will not rende
! void the election"
: In the ease of the people of the stat
of California ex rel :. Il. Harris, AZ
: pellants, VS.. ID. Brennan, mayor Q
, San Francisco, respondent, the cour
: SAYS: "The act to reincorporate tn
: CITY of San Francisco, passed the lott
: day of April, 1851, provides that tn
g first election for city officers should b
: held on the fourth Monday of April
4 1851, and thereafter annually at til
! general election for state officers. TIL
general election was appointed by la'
i to be held on the first Monday In SCI
o TENDER of each year. At the frs
: election for city officers, held on tn
4 fourth Monday of April, rs above d
+ rccted, the respondent was eleete
A MAYOR of the city, w;
i qualified and was III IN
$ exercise of the functions of his Ollie
e At the general election, held on I'll
h first Monday in September following
/ the relator received ] ,l0l votes (,
l. mayor, (the whole number pivenl W;
qualified and claimed the office of II
/ respondent on the oath day of the san
h month. No notice of the latter ele
o ton was given, although the chart
IS required ten days notice TO be give
h The respondent refused to surrend
d the Office and the reiator filed TINS o.
:, as testing his right tou IL, etc. ReI
o. tllal the tltttlbIl VI tisk iNattyi "
d valid, and that the means>of bringii
fe about the election and the Irregula
ties therein should be disregarJed. =
Id From the examination of the a
h thorities, it is my opinion that n0>ne
$ lect OF the mayor or city coanciN
I'd perform n ministerial act would {
If feat the right Of the peol
M to elect their officers or ager
rs and there good reason, 1t seems
me for so holding, for were it 9th
wise, ii would be in the power OF I
mayor and city council by neglect
10 give the required notice, or by :
flSiilq to give the notice, To preve
le the election of his or their success
as and thereby continue themselves
IN Office. The charter provides and 81
- that the election shall be held in ea
* of the wards of said city on the II
rs Tuesday in April. The right to h'
N the election comes from the chdTi
and not from the notice Moreover
believe the election would be LEI
without any notice being given.
ROBERT McCARr,