Telegram-herald. ([Grand Rapids, Mich.) 18??-1892, 1891-02-06
A. c. ADSIT IS JUDGE


tLz3 skate<HeDt % - declare t1s Fes44ts
Tue rslstor ASKS tie writ OF naand2-
mus oUt ef fals court 70 compel meet
nsg of tAs BoaTd o. state Cznsassors.
and directing them - sxzmsae such
votes, and 10 make . statement CT the
whole nunle<F Of votes given for sAld
Once IA sad county OF heat, aI SUCH
last gsnersl election. and deliver tae
s4Eas 81 the Secretary OF State, With tne
detef Summation OF SD bozrd rs IA what
person ass been, b. the greatest num-
Der eI votes, duly elected 10 said oTsaee
easorsed tbsre0n.
Ashsfetofore snown IN AtsoFney-Gsa-
ersl VS.. Buren,, aud Ia tnls opinion. the
general election or November Ia, 1880
was the proper and legal time for
eleetlHg . successor 70 tndge barch and
to MI the unexpired term ending De-
eembef 81, 1888. liz the Secretary OF
state has Issued the notice prescribed
by the statute there could be no doubt
as to tie legality Of the election Of The
feiatDr As saea successor. and he would
now bs entitled 10 the Office upon quail
Tying as the law directs.
Was this notice necessary,
The statutes provide That "when q
vacancy shall occur IN the oIhee OF
Judge OF the supreme Court, Judge of
tie Circuit Court thirty
days OF more before 8 general election
the Secretary OF State shall, al least
twenty days before such election, cause
written notice 10 be sent To the sheriff
OF each OF tie counties within the cleo
ton district ma which such vacancy may
occur, which notice shall state IN which
Office the vacancy occurred, and that
such vacancy Will be- supplied At the
next election" How. Stat. sl46.
The sheriff upon receiving such no.
tlcc is TO cause forthwith ike notice
IN writing, 20 be delivered 10 the town
ship clerk IN each township, and TO one
OF the inspectors of election in each
ward IN cities within his county. How.
stat. si52.
And twenty days notice of the hold
ing of each general election for the
choice OF county officers, designating
the officers 10 be chosen At such cleo
ton. How. Stat. sl52.
The authorities are uniform that the
neglect OF the Secretary OF State or the
sheriff, or both of them, To give these
notices would not inval,date an election
OF persons receiving the highest num-
Der of votes for any office for which the
regular term was by law TO be filled at
general election. Acknowledgement
VS.. Canvassers of Iron County. Of Mich.
600. People VS. Hartwell, II Mich. sos;
and Eng. Cyclopedia of Law, Dos, 299
and cases cited. State VS.. Bernier,
Mimi IS y. W. X. 500; Cooley Const.
n 80. Af...I.1,x. D.,t
l73.
The notice in such case required by
the statute is deemed directory, and
not mandatory. The right and duty to
hold the election Is derived from the
law, and not from the notice. The
statute makes the time and occasion OF
the election imperative. Where such 4
direction is given, 1t can not be made
nugatory by any failure to give notice.
Every one Is bound to take notice of
what tho statute requires. Attorney.
General VS.. Iron Co. Can. supra. p. GIL.
But where the time and place of the
election are not fixed by law. but the
election IS only to be called and the
time and place to be fixed by some
authority named IN the statute, after
the happening Of some condition prece-
dent, it has been held that it is essen
tial to the validity of such an election
that il be called and the time and place
fixed by the very agency designated by
law, and none other. Stephens vs.. Peo-
pie, 80 Ill. 337.
The authorities are not entirely har-
monious In regard to the filling of
vacancies. 1t is said in Meechem on
Public Officers and Officss Ia, that
where the law requires the vacancy to
be filled at the next general election,
the time and place of which are fixed
by law, no notice Unnecessary, although
the law declares the notice shall be
given, specifying the vacancy to be
filled. An election at the time and
place fixed by law will be valid al
though no notice was given. citing Peo-
pie vs. Cowles, IS \. y. $50; People VS..
Hartwell, y Mich. sos; Dishon VS..
Smith. 10 Iowa PIP; State VS.. OryIs. 20
Wis. 235; State vs.. Goetze, % Wis. 1853;
State We. Sones, 10 Ind. 356.
Judge Cooley. in his work on Consti-
tutional Limitations, saws: "When
both the time and place of an election
are prescribed by law, every voter has
the right to take notice of the law and
deposit his ballot at the time and place
appointed, Notwithstanding the officer
whose duty 10 ~ TO give notice of the
election, has failed IN tina. duty. The
notice to be gwen is only additional 10
that which tie statute itself gives, and
is prescribed for the purpose OF greater
publicity; but the right to hold the
election comes from statute, and not
from the Official notice; it mas therefore
been frequently held that where va
cancy exists in an Office, which the law
requires snail be filed Mt the next gen
eTSi election, the time and place Of
which ara fixed, and that the notice oil
the general election shall also specify
the vacancy 10 be TILED. an election a.
that time and place Will be valid. not
outstanding the notice is not given
and such elections can not be defeated
10y showing that a small portion only oil
the electors were actually aware of the
vacancy, or cast their votes To I'LL it."
There are. however, many cases op
posed 10 this doctrine. IL is held by
these authorities that where there !:
''no notice. either by proclamation OF
IN fact. and u IS obvious that the Creal
body OF the electors were mIsled foi
want OF the Official proclamation, il,
absence becomes such an irreguIarity
IS prevents sn actual choice by the
electors-prevepts an actual election in
tae primary sense of the woodland
renders Invalid any semblence of 81
election which may have been si
tempted by few, and which mus
operate, If IL operates at al, a. sur
prise an fraud upon the rights OF the
many" Foster "a. Scarf, ID Ohio st
o..
And in cases where there was offie!a
notice OF a vacancy, or that such va
csncy would he filed at the genera