I concur unreservedly in the majority opinion. I have given the questions involved special study and I desire to present some additional views in support of the rules of law which have been announced.
It seems to me that the election in question was sought to be set aside for a mere informality or irregularity which does not rise to the dignity of affecting the results of the election, nor is it so contended. In fact, it is admitted that wide publicity was given this city election. Both sides printed advertisements in daily issues of the newspapers printed in the city of Cushing; circulated handbills; had active workers and house-to-house canvassers. There were 1,189 votes which were cast for the adoption of the ordinance and 1,900 votes against the same. It is conceded that this was the largest vote ever cast in the city of Cushing.
It is contended that the provisions of section 5(a), article 18, of the Constitution, as construed by this court in the case of In re Initiative Petition No. 2 of Cushing, 157 Okla. 54,10 P.2d 271, required that a 30 days' notice of the election should be *Page 413 given, and since only a 13 days' notice was given, the election was void.
Suppose that the city clerk, in preparing the notice, had made a mistake in making the computation and gave notice of 29 days instead of the 30 days; that pursuant to said notice the election was held; that there were only 3,000 qualified electors in the city of Cushing; that the entire vote was cast, and that the result showed only 50 votes against the proposition. It would compel strong reasoning to sweep aside such an election on the ground it was void because the constitutional provision required a 30 days' notice instead of the 29 days' notice which was actually given. Surely, it should be asserted in no uncertain terms by a party who seeks to vitiate an election because of failure to strictly comply with a statutory or constitutional requirement as to the giving of notice of an election that the defect in the published notice misled the voters and prevented the electors who did not vote to the extent that if such defect in time had not been present their votes would have effectively changed or rendered the result doubtful. A person seeking to set aside a public election should sustain such a burden, but no such theories are present in the case at bar, and sole reliance to defeat the voice of the people is placed upon the strictly technical irregularity in giving a 13 days' notice instead of 30 days' notice as required by the Constitution.
I wish to reiterate the thought expressed in the majority opinion that prior to an election the directions as to the giving of notice of elections should be construed as mandatory upon the officials charged with the duty of calling an election, but after the election, such requirements as to time and manner of giving notice should be directory, unless it is made to appear that the failure to give such notice as prescribed deprived a sufficient number of the electors of the opportunity of giving the free expression of their will. See McLoughlin v. City of Prescott (Ariz.) 6 P.2d 50. This is true whether the required notice is statutory or constitutional. The details of notice as to time and place are procedural and not jurisdictional questions. The particular number of days required in a notice for the calling of an election is a mere formality and only one of the formal and preliminary steps in procedure governing elections. If the required number of days is the essence of the thing required, of course, the notice to such detail would be jurisdictional, otherwise directory. The essential question in the instant case was that there was power and authority for the calling of the election. In my opinion that was the jurisdictional question. If there was authority to call such an election, it then becomes necessary to consider the other subsequent and incidental questions of whether the electors were in fact informed as to the time, place, and purpose of the election and generally voted at the designated time and place upon the questions submitted.
If such conditions existed, then can it otherwise than clearly be said that the fundamental purpose of the Constitution in directing a 30 days' notice has not been accomplished when the election was held in good faith? In the case of Commissioners of Leavenworth Co. v. John Higginbotham,17 Kan. 62, the Supreme Court of Kansas considered a constitutional requirement as not being essential to the validity of a law. Article 1, section 14, of the Constitution of Kansas provides as follows:
"Every bill and joint resolution passed by the House of Representatives and Senate shall within two days thereafter be signed by the presiding officers, and presented to the Governor." etc.
The Constitution of Kansas made no other provision for the officers of each house to sign a bill at any time subsequent to the expiration of said two days. In that case it was contended that the aforesaid constitutional provision was absolutely mandatory and that there could be no valid law unless its terms were fulfilled to the very letter and unless the bill was signed within the prescribed two days by said presiding officers. The Supreme Court of Kansas upheld the law although not signed by the officers as directed by the Constitution. That court, speaking through Mr. Justice Valentine, said:
"The only office that the signatures of the presiding officers is intended to perform is to furnish evidence of the due passage and validity of the bill. Such signatures are only portions of the many evidences of the due passage and validity of the bill. And a bill may in some instances, as we think, be valid although the signatures of one of the presiding officers may be omitted."
See, also, Prohibitory Amendment Cases, 24 Kan. 700; State ex rel. Mullen v. Doherty, 16 Wash. 382, 47 P. 958; Walker v. City Counsel of Montgomery, 139 Ala. 468; Com'rs Court of Washington Co. v. State, 151 Ala. 561.
It is settled law that an election will *Page 414 not be set aside for a mere informality or irregularity which in no wise affected the result of the election. Dillon on Municipal Corporations (5th Ed.) vol. 1, p. 641, sec. 374, and cases cited therein; McCrary on Elections, secs. 176, 177, 178, 179, and 181; Mechem on Public Officers, p. 106, secs. 170 and 184.
It is my view that the weight of the authorities uphold the theory in election matters that if the will of the people has been freely exercised, and has been registered by the voters, and no fraud or corruption has entered into the election, and all of the electors have been given a free opportunity to exercise their franchise, and the want of the notice has not deprived a sufficient number of the electors the opportunity to change or render doubtful the result of the election, such election should be considered as valid and not void. Of course, it should be the duty of governing officials to see that proper notice is given, but it does not follow that an election should be set aside and declared void after the electors have freely submitted their will by their vote. To hold otherwise would be permitting some ministerial officer to defeat, nullify, and repeal and hold for naught the will of the majority of the electors. The will of the majority should be respected and, when an election is held in good faith under authority of law, a mere formal step, an irregularity resulting through an error or mistake, should not sweep away the undoubted will of the people when clearly expressed. The right to hold the election in the instant case came from the Constitution and not from the notice. The power to hold such an election was jurisdictional and the notice designating the time of holding the election was directory and not jurisdictional.