After the overruling of his demurrer, the respondent filed a plea in answer to the information, and to this plea the informant has demurred. The first question argued at the hearing on the demurrer is, whether the provision contained in Pub. Laws R.I. cap. 474, § 14, of March 27, 1885, with reference to notice, is to be regarded as mandatory, or merely as directory. The section provides that "elections of city and state officers . . . shall be made in ward meetings, which shall be warned and notified by the city clerk, who shall cause notices, stating the time and place for such election and the officers to be chosen, to be posted up at least seven days before such election, in three public places in each ward respectively." Section 16, clause 2, of the same chapter provides that, "in case of failure to elect any officer under the provisions of this act, . . . the board of aldermen shall order the city clerk to issue his warrant for another election to full the vacancy, and so on from time to time until all such offices shall have been filled."
Ward meetings for the purpose of electing a mayor were held on the Tuesday following the first Monday in November, 1891, the date fixed by Pub. Laws R.I. cap. 637, § 1, of May 5, 1887, as the time for the election, and again on November 18, 1891, December 2, 1891, and December 5, 1891. At the first three of these elections neither of the candidates received a majority of the votes *Page 599 cast, and there was, consequently, a failure to elect. At the fourth election the respondent received a large majority of the votes cast and was declared elected, received a certificate of election, took the oath of office, and is now acting as mayor.
Notice of the first three elections was regularly given in accordance with the requirement of § 14; but the date fixed by the order of the board of aldermen for holding the fourth election being only three days subsequent to the one immediately preceding, it was impossible for the city clerk to comply with the provision of § 14 to give at least seven days' notice. The notices were in fact posted on December 4th, the day preceding the election. The time for this election was fixed by the board of aldermen in the full belief that they had authority so to fix it, and under a mistaken idea that the provision of § 14 did not apply to an election under § 16, clause 2, in case of a failure to elect at a prior election.
Counsel for the relators concede that where the time and place for an election are fixed by law, the statutory provisions for giving notice of such election are merely directory and not mandatory; but contend that where the time and place are not so fixed, but some board or person is designated to give the notice, the notice of the election given by such board or person, with respect to time and place, must comply strictly with the statutory provisions.
By reason of the fact, we presume, that generally in this country a majority of the votes cast at any election is not required to elect, but a plurality of the votes cast is sufficient, no cases have been cited, or have come to our attention, which are closely analogous to the case at bar. In support of their demurrer, counsel have cited the cases of ThePeople v. Porter, 6 Cal. 26; and Kenfield v. Irwin,52 Cal. 164. In these cases the elections were special elections in the sense that they were held to fill vacancies in office occurring before the expiration of the full terms for which the incumbents were elected. The elections were held void, because no proclamations by the governor had been made designating the officers to be chosen and the time for holding the elections. These cases do not seem to us to be in point, since in the case at bar the time for holding the election was designated by the board of aldermen, who had authority to designate the time, the question being whether their order designating the particular time for holding the election was void, or merely irregular. *Page 600
Counsel have also cited a number of cases relating to elections held for special purposes. Harding v. R.R.I. St.L.R.R. Co. 65 Ill. 90, in which legislative authority had been given to county authorities to subscribe in behalf of their county to the capital stock of a railroad company, upon an election resulting in favor of their doing so. The thirty days' notice required by one of the acts not having been given, the election was held void. George v. Oxford Township,16 Kan. 72, was a case similar to the last. The legislature had given authority to a township to issue its bonds for the purpose of aiding in the building of a bridge, upon condition that a majority of the electors should first vote for their issue. The act required that at least thirty days' notice of the election should be given by posting notices. The election was held only eighteen days after the act took effect, and the election was held invalid. Pratt et al. v. Swanton, 15 Vt. 147, a vote of a town-meeting appointed a committee to build a bridge. The meeting was warned only eleven days before it was held, and the law required twelve days. The committee contracted with the plaintiff to build a bridge. In a suit against the town on the contract, it was held that the meeting was unauthorized, and that its proceedings were not binding on the town. State v. VanWinkle, 25 N.J. Law, 75; Greenbanks v. Boutwell, 43 Vt. 207, were cases relating to the voting of taxes or assessments by school districts. The meetings were not notified as required by statute and were held void. Haddox v. County of Clarke,79 Va. 677: the election in this case was for the purpose of determining whether or not licenses for the sale of liquors should be granted. The act provided for submitting the question of liquor licenses or no liquor licenses to the qualified voters of certain counties named, and to the qualified voters of each magisterial district therein, on the Tuesday succeeding the first Monday in November, 1880, and every two years thereafter. The election was held November 2, 1880, which resulted in a majority against liquor licenses in one of the districts. The sheriff, however, omitted to post the notices of the election required by the act, and it was held, notwithstanding the fact that the time of holding the election was fixed by law, that the election was void. Jones v. State of Kansas, 1 Kan. 273, was the case of an election fixing the location of a county seat. It *Page 601 was held to be the duty of the commissioners on canvassing the votes, if they should find that no place had received a majority of the votes cast, to proclaim that result, and also the time for the second election in that event provided for in the act, and to canvass the votes at the second election and proclaim that result, the same as at the first. The first election was held, and no place had a majority of the votes cast, but the commissioners failed to proclaim the result. The second election was held at the time provided for, and the town of Leroy received a majority of the votes cast. As in the preceding case, notwithstanding the fact that the time of holding it was fixed by law, the election was held void for want of the proclamation by the commissioners.
It will be seen from the foregoing review of the cases referred to that they were special elections for special purposes, and of a very different type from the election which we have under consideration. The reasons for holding the provisions for notice in these cases mandatory were much stronger than exist in the present case, since in them the voters would be likely to receive notice only in the method prescribed; while in the case at bar the election was the last of a series of elections held in consequence of failures to elect at prior elections, by reason of neither of the candidates receiving a majority of the votes cast, of all of which the electors had had full notice, and which were, practically, a continuance of the first election, though made distinct elections by the statute. Moreover, in the cases relating to the subscription to the capital stock of a railroad company, or to the issue of bonds by municipal corporations, the elections were held, in pursuance of special legislative authority, for purposes foreign to the ordinary functions of municipal bodies, with reference to which the rule is, that the authority to hold such elections must be clearly conferred and strictly pursued. Harding v. R.R.I. St. L.R.R. Co. 65 Ill. 90.
Counsel call our attention particularly to the language of the court in George v. Oxford Township, 16 Kan. 72, mentioned above, as clearly enunciating the principle for which they contend. We do not deny the principle so laid down as applicable to that case and others of its class, but we do deny that it is a principle of universal application. In the nature of things, whether the provision of a statute is mandatory or directory in a particular *Page 602 case must be determined by a consideration of the statute itself; whether mandatory or directory depends on the intent of the legislature, which is to be arrived at from a consideration of the act and its purpose, and the results which will flow from adopting the one or the other of the constructions contended for, and by all other legitimate methods of interpretation. It is, therefore, impossible to formulate a principle which shall be of universal application.
A careful consideration of the provision for notice contained in § 14, referred to, confirms us in the conclusion that such provision is to be regarded as directory and not mandatory. In the first place, the provision occurs in the section with, and in immediate connection with, the provision for ward meetings for the purpose of general elections, or elections the time and place for holding which are fixed by law, in relation to which it is conceded that the statutory notice is merely directory. The provision for other elections in case of a failure to elect is contained in another distinct section, to wit, § 16, and it is necessary to resort to construction to apply the provision for notice to such elections. See, ante, opinion of February 6th. Is the provision to be regarded as directory merely in regard to the class of elections with which it is immediately connected in the statute, and mandatory in regard to another class of elections with reference to which it is so remotely connected? We see no reason for so holding.
Again, if the provision is to be regarded as mandatory, its requirement must be strictly complied with, not only as to the number of days, but also as to the number of notices posted in each ward, and these notices must also be posted in public places, and remain posted the entire period covered by the requirement. Suppose that through accident or design but two notices instead of three should be posted in one ward, or that one of the notices should happen to be posted in a place not public, or should be torn down a few minutes before the expiration of the full seven days: if the provision is mandatory, and therefore a strict or precise compliance with its terms is necessary, should we not be compelled to hold that an election in such a case was void, though perfectly regular and valid in every other respect? To hold an election void for such slight defects of notice, it may well be thought, *Page 603 would be absurd; we cannot suppose that the General Assembly intended that an election should be invalidated on such slight grounds. But if the requirement is mandatory, instead of directory, where is the court to draw the line between the defects which are to be regarded as sufficient and those which are insufficient to invalidate an election?
Counsel in support of the demurrer contend, secondly, that the election was void under Pub. Stat. R.I. cap. 238, § 4, which provides that "all town-meetings of the freemen, inhabitants or residents of this State, or any portion of the same, for the election of any town, city, ward, county, or state officers, called or held in any town or city in this State, except in the manner, for the purposes, at the times, and by the persons by law prescribed, are illegal and void," etc. The contention rests on the assumption that, as the election was ordered to be held only three days after the preceding election, when the statute, as is contended, required at least seven days' notice to be given, the order was void, and hence that the election was void, because called for a time not prescribed by law. If, however, the provision requiring seven days' notice be merely directory, as we have seen, the order of the board of aldermen, fixing the election two days thereafter, though irregular was not void, and the election at the time named therein, though liable to be set aside for the irregularity, was not necessarily illegal and within cap. 238, § 4, as an election called or held at a time not prescribed by law.
Counsel contend, thirdly, that the plea does not bring the case within the intimation in our former opinion that we were not prepared to hold that the election was void, notwithstanding the defect in the notice, if it should be made to appear that the electors had full knowledge of the election of December 5, 1891, and that a full expression of the popular will had been thereby obtained, since it appears that in each election down to and including the election of December 2, 1891, there was polled a constantly increasing vote, while on December 5, 1891, 934 less votes were cast than at the election of December 2d, and 866 less than at the election on November 3d. In answer to this suggestion, it is necessary only to refer to the averments of the answer, admitted by the demurrer, in substance, that the electors had full and actual notice of the election *Page 604 on December 5th, and that no voter was in any way hindered or impeded in the exercise of his right of suffrage, and that the result of said election was in no wise affected by the failure to give a longer notice, and that a full and fair expression of the popular will was had at said election; that the respondent received at said election 2,150 votes, which number was sufficient, not only to constitute a majority of the votes cast at said election, but also a majority of the votes cast at any of the three elections preceding, and a majority of the highest number of votes cast in the city of Pawtucket at any election ever held therein; and that the result of said election could not have been changed save by the attendance of 1,181 additional voters, all voting against the respondent; and that no election of any other candidate could have been had save by the attendance of 1,599 additional voters, all voting against the respondent and for one of the other candidates. The plea further avers that the day appointed for the election and all matters relating thereto were fully known to each and all of the relators, and that each and all of them had full opportunity to attend, and were in no way hindered in the exercise of their right of suffrage, but that, knowing full well that said election was widely known to the electors, and that in consequence of the great publicity and of the great public interest and of the convenience to the electors of the day appointed, there would be a full attendance of the electors, and that their will would have complete expression, and that the respondent would be elected by a great majority; but desiring to defeat the will of the electors, and contriving to defeat the election of a mayor, etc., the relators combined together to prevent the electors from voting thereat, and on the day preceding the election sent messengers throughout said city to request voters not to attend the polls, and busied themselves in requesting voters not to go to the polls, and on the day of said election attended the ward meetings and dissuaded voters who had come to the polls with the intention of voting from casting their ballots; that by this action of the relators, and of others acting in concert with them, a large number of qualified voters were induced to absent themselves from the polls or not to cast their ballots, and that in consequence thereof the vote cast at said election fell short of the total vote cast at the preceding elections. *Page 605
We are of the opinion that the demurrer should be overruled and the plea sustained.