Pawtucket tribune. (Pawtucket, R.I.) 1890-189?, 1892-02-06

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 vote has cen polled
will be sustained, although the statutory
notice is not given" Qn support OF this
number OF authorities are also quoted.)
ain considering the case at bar, it is
to be said that even IL the election is to be
considered a special one, In that case the
election is to fill a vacancy during the
term of Office OF an incumbent and there
was therefore no presumption that the
voters had no knowledge of 1t and that it
was therefore necessary that the statutory
notice should be given them to bring the
election to their attention.
"rhe election in the present case was not
to Ill vacancy by death or resignation
of the incumbent during his term but an
election because of q failure at a prior
election of which notice had been given.
As the law fixes the time OF holding the
election on the Tuesday following the first
Monday Of November we may also pre-
sumo that an election was held on that
day Of which the prescribed notice was
given and which resulted as did that of
December 2, in failure to elect.
at may bo easily imagined that after
three contested elections which resulted
in failure to elect, political feeling and
enthusiasm would be at a high pitch and
that cle, tors of every shade of opinion
would be on the alert and that therefore
less notice than that prescribed by sec
tion II would amply suffice to obtain
full expression of the peoples will.
"As the only purpose OF giving notice is
to obtain such On expression, we are not
prepared to hold that il 1t should be ma %
to appear by return on the writ that the
electors had full knowledge of the cleo
tion held on December 5, 1891, and that
full expression OF the popular will had
been thereby obtained, that the election
10 held was void, not withstanding the fact
that the prescribed notice Was not given.
"When special elec ion 10 fill vacan-
cy Is ordered there is no presumption
that the voters know the date fixed by the
writ of election, and they must have no.
tice, to 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.
"Aotual notice to the great bsdy of the
electors is sufficient.
"The question in such cases is whether
the want of the statutory noti,e has re-
suited in depriving sufficient OF the elec-
Of the opportunity of exercising the fran
chise to change the result of the election.
"As the case II only before us OH de-
murrer to the information, we have no
facts only as set out in the information
and that 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 urges in support OF
his demurrer that 1t docs not appear in
the information that there was not full
and fair election and that even IL the no.
tice was irregular it did not vitiate the
election in absence of fraud or of any
claim that electors were deprived OF their
votes by such irregularity.
"These objections are based upon an
erroneous conception of the rule of plead
ing, which in information in the return
OF quo warranto differs from that in or
dinary cases.
"ln such information II is only neces-
Rary to aver that the respondent Is in
possession oi tho 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 depends.
"High, on Extraordinary Legal Re-
Marks 7l2, 7la, GIG, and case cited; also
state ". Kearns, r. l., 3o34o. Tho de-
murrer to information Is overrnicd.n