The Constitution provides that, as a condition precedent to the levying of road tax in a county, there must be a favorable vote of a majority of the qualified electors voting on the question at the preceding general election. I do not think that the failure of the election officers to give notice rendered the election void. But in this instance there was no election held on the question of road tax; there was no place prepared on the ballot for a vote on that question, and the most that the evidence shows in this case, indulging every possible inference from the statements of the witnesses, is that a few voters in the county wrote on the ticket a *Page 911 vote favoring the road tax. My opinion is that this was not an election on the question, and that the few votes cast on that question do not amount to a compliance with the constitutional prerequisites.
Our statutes provide that the county election commissioners shall provide the official ballots for each election, which shall be uniform and printed in plain type; that they shall "place on the ticket to be voted at the election held for the election of county officers, `For road tax,' and `Against road tax,'" and that "no ballot shall be received or counted in any election to which this act applies except it be provided by the county election commissioners as herein prescribed." Crawford Moses' Digest, 3785, 3786, 3787.
The failure to make a place on the ballot for a vote on the question of road tax is tantamount to failing to furnish a ballot at all on that question, hence the statute in express terms prohibits the counting of such a ballot. It does not avoid the election as to other matters, but as to this particular matter the election is void because there were no ballots which the law permits to be counted. There is some conflict on the question, but I believe that weight of authority sustains the view that such a provision as this must be held mandatory. Coleman v. Eutaw,157 Ala. 327; Horsfall v. School District,143 Mo. App. 541; People v. Reinhart, 61 Mich. 585; Gomez v. Turner, (Texas), 128 S.W. 656; Catlett v. Knoxville, etc., R. Co.120 Tenn. 699; People v. Meyers, 256 Ill. 529; Currant v. Luther, 164 Ind. 252.
In Hogins v. Bullock, 92 Ark. 67, we quoted with approval the following statement of the law from the decision of the Supreme Court of Indiana in Jones v. State, 153 Ind. 440:
"All provisions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose; but after election all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and *Page 912 intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election, or that its omission shall render it void."
Applying this rule to the present case, there is no escape from the conclusion that the statute is mandatory for several reasons. First, that the omission to provide a place on the ballot for a vote on the question of road tax operated as "an obstruction to the free and intelligent casting of the vote;" second, that the requirement for providing a place on the ballot is "an essential element of the election," and, third, that the statute itself declares that the validity of an election on that question depends upon compliance with the statute — in other words, that no ballot shall be received and counted unless it is one furnished by the election commissioners, and, if none is furnished by the election commissioners providing for a vote on this question, there can be no valid vote cast.
It seems to me a very dangerous doctrine to lay downs that a mere handful of voters can write in their ballots a vote in favor of road tax and thereby impose the burden on the taxpayers of the county, when the general voters have had no opportunity to vote on the question.
My conclusion therefore is that the tax is void, and that the decision of the chancery court was correct in so holding. *Page 913