Territory included within the proposed village is about one square mile and a quarter. Population, 427. Majority of votes were for the proposed village. Was the election legal ?
By section 1 of 1 Revised Statutes (7th ed.), 884, it is provided that “ any part of any town or towns nothin any incorporated village containing a resident population of not less than three hundred persons, and if it shall include in its boundaries a territory of more them one square mile in extent, containing a resident population of not less than three hundred persons in each, and every additional square mile of territory meluded within such boundaries may be incorporated as a village under ^he provisions of this act, by complying therewith.” If the territory was one square mile then a population of 300 would be sufficient to .comply with the provision quoted. Thus, a territory, having that number may be incorpo*550rated. Thus the other provision is general, and provides for “ additional square miles of territory,” to be included within the boundaries of the proposed village. But the statute declares, that “ each additional square mile, containing a resident population of not less than three hundred persons,” * * * may be incorporated. The statute provides a mode, and that mode and the requirements of the statute must be complied with, or the statute cannot be availed of. We are not to give it any more minute provisions than we find written in its language. We incline to the opinion that whenever the territory exceeds one square mile, each additional territory must have at least 300 persons within its bounds. We therefore agree with the conclusion reached by the county judge. Section 11 of of the act (ch. 291, tit. l,Lawsol 1870) provides that a petition may be presented to the county judge, “specifying the irregularities in and objections to such election.”- Also, that “ his decision as to the legality or illegality of such election shall be rendered.” If the construction we have given the statute be correct, it would seem to follow that the election was illegal, and that the proceedings had prior thereto, based upon a contra construction, wei*e irregular and illegal inasmuch as they did not conform to the statute. Though such irregularities or departure from the statute might be reached by a certiorari, yet it is obvious that it was the intention of - the legislature, by section 11, to provide for taking the “ irregularities and objections ” arising, in the early proceedings, before a county judge summarily. We think it was proper for him to declare an election held under such irregular proceedings invalid, upon the appeal taken to him. The order declaring the election held illegal should be affirmed. It may be obseiwed that we have not deemed it necessary to pass upon the question raised by counsel, as to whether the order was appealable, as upon the merits we have reached^ the conclusion that it is right. Order affirmed, with ten dollars costs and disbursements, to be paid by appellants.
Order directing the return of money deposited also affirmed, without costs.
Smith, P. J., and Barker, J., concurred.Order affirmed, with ten dollars costs and disbursements. Order directing the return of the money deposited affirmed, without costs.