*149On the Merits.
x. It is settled law that irregularities in the conduct of an election which do not affect the result, or the mere position of a ballot box without resulting injury will not render an election invalid.
2. A meeting held at a time other than that fixed by the constitution and without notice of the change of date •ftrill not bind the members who did not participate therein.
DUFOUR, J.The plaintiffs, members of the defendant association, ask by injunction that the election held on July 4, 1910, of a physician be set aside and that the association be ordered to hold another election.
The grounds of complaint are.
1st. That the commissioners of election were denied access to the room containing the ballot box, and that fraudulent ballots were placed therein.
2nd. That the election was held on a day other than that provided by the constitution and without proper notice.
The answer denies that there was fraud sufficient to affect the result of the election and urges that the complainants voluntarily participated in the election and are hence estopped to question its validity.
The only suggestion of fraud is found in the fact that although only 218 votes are recorded as having been cast, the box contained 226. It is not claimed that any one voted who had no right to do so, or that anyone entitled to vote was denied that privilege. It is clear that as Dr. Newman, the defeated candidate, was beaten by more than a sixty vote majority, the disparity of eight votes could not have affected the result.
The ballot box was in the usual location , and exposed to view.
It is settled law that irregularities in the conduct of an election which do not affect the result or the mere posi*150tion of a ballot box without resulting injury, will not render the election invalid.
Am. Eng. Encyc. of Law (2nd. Ed.), Vol. 10, p. 670; 12 An. 366; 27 An. 507; 46 An. 679.
The provisions of Article 3 of the Constitution of the Association relate to the regular monthly, quarterly, annual meeting’s and the annual election of physicians at stated times and make no mention of any obligation to. give notice.
Section 10 of that article declares how special meetings-may be called and adds “that the president shall notify the grand marshal, who will in turn notify the members of said special meetings.”
The election in controversy here was not held at the. time stated in the constitution, to-wit: sixty days after the annual election and it cannot, therefore, be assumed that, under the constitution, the members were charged with notice of the meeting.
The president announced that the July 4th meeting, the one now attacked as irregular, at the meeting of June 28th, only eighty or ninety members out of a thousand were present, land no other regular notification ever issued.
Two of the complainants participated in the election, Brown and Miller; there is nothing to show that Young, Carter and Watson, the other complainants, were among* those attending the meeting of June 28th, at which the notice was given, or that they participated in the meeting of July 4th.
Hence, they cannot be held estopped to deny the validity of the action of the association. The facts upon which estoppel is based must be proved by the party urging the plea.
Conceding arguendo that, under certain circumstances, meeting’s may be held at times other than those pre*151scribed by tbe constitution, yet It Is clear that, In order to bind tbe members, notice of tbe change of date must be given.
February -6,1911»The judgment is affirmed at appellant’s cost, but, as the date herein fixed for a new election has passed pending the appeal, we must remand .the cause for further action in the premises.
The judgment is affirmed at appelalnt’s cost and the ■cause is remanded with instruction to the lower court to fix a new date for the election and for further proceeding according to law and the views herein expressed.