Kerlin v. City of Devils Lake

141 N.W. 756, 25 N.D. 207, 1913 N.D. LEXIS 119

Opinions

Goss, J.

This is an appeal from an order of the district court of Bamsey county, dissolving an injunctional order and denying a temporary injunction pending suit. It was heard upon the verified complaint and supporting affidavit and exhibits, together with a verified answer and counter affidavits. The proceeding involves the validity of an election, called and held to increase the debt limit and issue bonds in the sum of $33,000 for the purpose of establishing a municipal light plant in the city of Devils Lake. Questions of law alone are presented. The facts are not in conflict. The case naturally divides into two general divisions: (1) Validity or invalidity of the special election; and (2) the election being sustained, what were the results accomplished thereby?

Appellant urges that the election held was void for the reason that the city of Devils Lake at the time of the election, and for some time prior thereto, consisted of four wards, from each of which aldermen were elected, and that each ward constituted an election precinct under the express provisions of § 2743, Eev. Codes 1905, as amended by chapter 65 of the Session Laws of 1911, in force when the election occurred on November 6, 1911. That said city contained a population of over 5,000 people, with approximately 700 legal voters residing therein. That instead of holding an election in each ward, as a several pre cinct of said city, the special election for bonding purposes was held at one place at which all the voters of the city desiring to participate were obliged to vote or refrain from voting. The uncontroverted affidavits of the defendants admit that said election, as conducted, was held at the city fire hall, centrally and conveniently located within said city, and that the total vote there cast was 483; that all special elections had for various purposes have always been held at said place since 1885, notwithstanding that the city had been divided into wards in 1887; and that the holding of all special city elections in this building had been customary throughout that time, and that all special and school elections for more than ten years last past have been so held at said place, all the voters in the city casting their ballots at the one central voting place; and that pursuant to that custom this election was so held; that an unusually large vote (483) for a special election was cast; the total vote of the city cast at the last preceding general election was but 595, and the total vote cast at the last previous city election was 609. That said fire hall was sufficiently large, commodious, and convenient to accommodate all the voters, and the facilities provided would have accommodated more than three times as many voters as voted at said election. That the fire hall is practically in the center of said city, and accessible from all parts of the city, and is the usual and customary voting place and precinct of the first ward of the city in general elections, and was a convenient place for the voters of the various other wards of the city to use for such purposes. No fraud in the conduct of said election is alleged, and no prejudice to the right of any voter to exercise his franchise is charged, nor is it claimed that the election had was not a full and fair expression of’public opinion on the subject evidenced through the ballot box, 327 votes being cast in favor of increasing the debt limit and the issuance of bonds, to 156 votes cast against the same, the proposition carrying by more than a two-thirds majority.

The question thus confronting us is whether the ignoring of the wards as election precinct lines, and the holding of this election for the whole city at one voting place, voids the election under the above circumstances. If so, this case is determined without considering other matters involved.

There can be no question but what the plain statute, § 2743, Eev. Codes 1905, in express words provides that each ward of a city “shall constitute an election district” in the case here presented; and, also, “that in city elections separate ballot boxes and poll books shall be provided and kept for each ward.” And that “such wards and precincts shall constitute election districts for all state, county, city, and school elections.” And we must remember that, aside from the plain intent of the statute as derived from the unambiguous and plain terms of it, the legislature in 1911 amended the prior law, § 2743, Eev. Codes 1905, by adding the above provisions requiring the keeping of separate ballot boxes and poll books for each ward, and also bringing city and school elections under the statute, .thereby making the statute operate uniformly upon all elections, state, county, city, and school, and both general and special. There can be no question but what, under the plain statute, it was the duty of the city authorities to provide for and have conducted a polling place at some place within each ward, to comply with the statute quoted. In addition to this, § 121 of our state Constitution, as amended, provided at the time of this election who should vote thereat, by the following constitutional provision: “Every male person of the age of twenty-one years or upwards, . . . who shall have resided in the state one year and in the county six months and in the precinct ninety days, next preceding any election, shall be ... a qualified elector at such election.” The proposition of law thus presented is whether this election is merely irregular, or instead void, when so conducted in disregard of the plain terms of this statute, and any inference bearing thereon to be derived from the above constitutional definition of an elector. At first blush, and from abstract reasoning without a careful investigation of the many adjudications throwing light on the question before us, one would likely conclude that the election was void. But research discloses that the great weight of authority, if not all the authority, is the other way, and that public policy enters into the question. On reasons of public policy, courts have been reluctant to hold elections void, except where imperatively necessary from the plain expressed legislative purpose. Thus, where the legislature says, as in registration, that a vote shall not be received from a nonregistered voter, nothing remains to the courts but to give force to the declared legislative intent, and such is our' law. See Fitzmaurice v. Willis, 20 N. D. 372, 127 N. W. 95. And where the court must choose between holding valid or invalidating an entire election, the reason for holding the election valid would be stronger where, as in a case of this kind, an entire city must be disfranchised,. ' than where the ballots of a limited number of persons or even a precinct, would be thrown out. If courts hesitate to disfranchise the few, the greater the reason, then, for reluctance in setting aside the expressed will of all by the declaration that a whole election is invalid. Hence-we find the rule of law, announced for the application of statutes and the particular constitutional provision before us, in cases similar to-this, to be that generally where the statute does not in express terms declare that the election shall be void, or where the constitutional provision does not, by reasonable inference, invalidate the election, the-election will be sustained and the violation of statute will be treated, as an irregularity, going to the form, instead of to the substance, where, from all the facts, the court does conclude that, in spite of the depart- ■ ure from statutory requirements, a full and fair ballot has been cast and a true and fair return of the entire election has been canvassed and' made. Indeed, it has been held that this rule of law is so well established that it should be considered as the common law, controlling in the light of which the statute was enacted, and with which the statute-must be interpreted, and affecting its application, unless the statute in express terms negatives it by a declaration that the election held in disregard of the statute shall be void. Bowers v. Smith, 111 Mo. 45, 16 L.R.A. 754, 33 Am. St. Rep. 491, 20 S. W. 101, where, after referring-to the English ballot act of 1872 (35, 36 Viet. chap. 33, § 13), providing that “no election shall be declared invalid by reason of a noncompliance with the rules contained in the first schedule to this act, or-any mistake in the use of the forms in the second schedule to this act, if it appears to the tribunal having cognizance of the question that the-election was conducted in accordance with the principles laid down in the body of this act, and that such noncompliance or mistake did not’, affect the result of the election,” the Missouri court, commenting thereon, says: “It has been judicially determined in that country that the-language just quoted is merely declaratory of the common law of England. Woodward v. Sarsons (1875) L. R. 10 C. P. 751. It . . . goes no further as a curative power than the accepted general principles, of the law of elections in this country as expounded by the courts.”' The opinion also states: “It has been sometimes said in this connection that certain provisions of election laws are mandatory and others directory. These terms may, perhaps, he convenient to distinguish one class of irregularities from the other. But, strictly speaking, all provisions of such laws are mandatory in the sense that they impose the duty of obedience on those who come within their purview. But it does not, therefore, follow that every slight departure therefrom should taint the whole proceedings with fatal blemish. Courts justly consider the chief purposes of such laws, namely, the obtaining of a fair election and an honest return, as paramount in importance to the minor requirements which prescribe the formal steps to reach that end; and in order not to defeat the main design are frequently led to ignore such innocent irregularities of election officers as are free of fraud and have not interfered with a full and fair' expression of the voters’ choice. Thus in Davis v. State (1889) 75 Tex. 420, 12 S. W. 957, the law required that each ward in a town should 'constitute an election precinct;’ yet in San Marcos, a town incorporated with four wards, the county commissioners established two precincts only (without reference to ward lines), and each included parts of' the adjacent country; but the court, after full discussion of the general subject, held that the election at those precincts was not avoided by the irregularity. In Stemper v. Higgins (1888) 38 Minn. 222, 37 N. W. 95, a general election was conducted in the village of Madelia, by its officers, as though it constituted a district separate from the township in which it was situated, where also a precinct was open; whereas the law declared that 'every organized township and every ward of an incorporated city is an election district;’ yet the court held the returns from the village valid, despite the irregularity indicated. These cases find support in others, illustrating the same principle.” In the main case cited, Bowers v. Smith, instead of voting four precincts or wards at one polling place, the city of Sedalia, which legally constituted one voting precinct, arbitrarily for the convenience of the electors divided the precinct by establishing two polling places instead of one, requiring the electors whose surnames began with the letters “A” to “K” to vote at one, while those included within the letters “L” to “Z” voted at the other; and appointed, without authority of law, an entire set of election officers for the polling place so created without legal sanction. Thus, an additional polling place, with an entire set of election officers to conduct such election, was thus, for convenience, created. The election was sustained. The case of Davis v. State, supra, was also closely parallel in facts and principle to the case before us. The statutes applying were practically identical with our statute under consideration. The Texas statute provided that “each ward shall constitute an election precinct.” The opinion states the facts “that San Marcos had been incorporated and was divided into four wards, and that but two election precincts had been established in the city by the commissioners, and that these were established without reference to the wards, and that they included parts of the surrounding country.” The matter was exhaustively considered, a dissent being filed by one justice. The opinion also shows the same constitutional provision entered into the discussion there as here. We quote: “The main design of all election laws is, or should be, to secure a fair expression of the popular will in the speediest and most convenient manner; and we think a failure to comply with provisions not essential to attain that object should not avoid the election, in the absence of language clearly showing that such was the legislative intent. But there is no express declaration in the statute that a failure of the commissioners’ courts to make each ward an election precinct shall avoid the election. Nor does it contain any words from which it should be necessarily implied that such was the intention. If such is the meaning of the law, it must be arrived at by construction. It may be conceded that one purpose of the provision was to prevent illegal voting. The constitution required that each voter should vote in his precinct. Hence, the provision that each ward of a town or city should constitute a precinct made it necessary that each voter should cast his vote in the vicinity where, as a general rale, his qualifications to vote were best known. So far it tended to secure the purity of the ballot box. That consideration of public policy may in part . . . have led to the enactment of the statute. On the other hand, it may have been inserted for the convenience of the voters living in incorporated towns and cities. However that may be, there was a more important matter which ought to have been considered by the legislature in inserting the article; namely, the result of making a compliance with it an essential prerequisite of the validity of the election. That result would be to create confusion, to produce litigation, and to bring about the neces sity for new elections in cases where the popular will has been fairly expressed. We think this was not intended. It is better to take the •chances of a few fraudulent votes being cast, which may or may not •change the result, than that an election should be set aside because of the failure of the commissioners’ court to do their duty in particulars not affecting the general fairness of the ballot. It may be said that the language of the article is not persuasive merely, but imposes upon the •court an imperative duty (in designating polling places). Let it be conceded. It does not follow that a failure to perform the duty makes its action void. ... It may be said that the use of the word ‘shall’ shows that the provision is mandatory. That it is a command to the commissioners’ court may be granted; but it does not follow that it is mandatory in the sense that it make a compliance with the provisions essential to the legality of the election. The word ‘shall’ has been frequently construed as not mandatory, when the provision in which it was found did not confer a private right, and the public interest did not demand such construction. . . . We think that when the commissioners’ courts have fixed the precincts, and the election has been held, it ought not to be set aside because they have failed to make each ward in a city an election precinct, unless it be shown that they have acted with a fraudulent purpose.”

And these cases of Bowers v. Smith, 111 Mo. 45, 16 L.R.A. 754, 33 Am. St. Rep. 491, 20 S. W. 101, and Davis v. State, 75 Tex. 420, 12 S. W. 957, have both been followed heretofore by this court in State ex rel. Byrne v. Wilcox, 11 N. D. 329, 91 N. W. 955, at page 961, and Perry v. Hackney, 11 N. D. 148, 90 N. W. 483, following Miller v. Schallern, 8 N. D. 395, 79 N. W. 865. State ex rel. Byrne v. Wilcox, supra, has committed this court upon the question before us. The facts are closely parallel. It involved an election in which the county commissioners had disregarded ward lines to prevent confusion arising from a portion of the city of Bismarck being in one commissioner district and a part in the other; and where wards had been established without regard to the commissioner districts, the territory in certain wards including territory in both commissioner districts. The county commissioners readjusted the precinct boundaries without regard to the wards, and the question arose whether the election that would be conducted thereafter in the precincts as established by the county commissioners would be void. The basis for declining to assume jurisdiction in State ex rel. Byrne v. Wilcox is given in the opinion to be that the election similar to this one would be irregular only, and not void, and hence the franchises of the state could not be affected. Assuming, without, deciding for the purposes of the decision, that a void election would affect them, what is there said cannot then be regarded as obiter. We-quote from the opinion in 11 N. D. at page 340, 91 N. W. at page 961 “This court will assume, for the purpose of disposing of the motion to quash, that the precincts attempted to be created by the recent action of the county board were created without legal authority, and are illegal precincts, and, consequently, that the election sought to be enjoined in such precincts will, if permitted to be held, be an irregular election.. Conceding this, the question is presented whether such irregular election, if held, will be so far vitiated by its illegality that, in the event of a contest, the lawful voters will lose their votes, and the election itself be set aside by a court of competent jurisdiction. It is our opinion that no such inference can be drawn from the facts set forth in the petition. . . . Finally, we hold, for the purposes of the motion under consideration, that the proposed election in the precincts in dispute, if actually held, will not be an invalid and wholly void election, but will be merely an irregular election, and one which, in our opinion,, cannot so operate as to have any injurious effect upon any substantial rights of voters or of candidates. It is elementary that mere irregularities in conducting an election; which is fairly conducted, and which do-not defeat or tend to defeat an expression of the popular will at the-polls, will not so operate as to vitiate an election. To this rule there is an important exception. Where the statute in terms declares or necessarily implies that any particular act or omission shall defeat an election, the same is construed as a mandatory statute, and every such statute is required to be enforceable strictly in accordance with its. terms.” Citing Perry v. Hackney, 11 N. D. 148, 90 N. W. 483 ; Davis, v. State, 75 Tex. 420, 12 S. W. 957 ; Peard v. State, 34 Neb. 372, 51 N. W. 828 ; Bell v. Faulkner, 84 Tex. 187, 19 S. W. 480. And in the opinion in Perry v. Hackney, we find copious extracts from Bowers v. Smith, 111 Mo. 45, 16 L.R.A. 754, 33 Am. St. Rep. 491, 20 S. W. 101. The Missouri and Texas cases, therefore, have already been approved by our own court in a case with facts very similar to this. And Texas has followed the early cases in Ex parte White, 33 Tex. Crim. Rep. 594, 28 S. W. 542, wherein a constitutional provision similar to the one here involved is also discussed. And in 1898 New York has announced a similar rule under identical statutory and constitutional provisions. See People ex rel. Lardner v. Carson, 10 Misc. 237, 30 N. Y. Supp. 817, affirmed on appeal in 86 Hun, 617, 35 N. Y. Supp. 1114, .and reaffirmed on appeal in the New York court of appeals in 155 N. Y. 491, 50 N. E. 292, where both sides of the question are discussed ■and a strong dissenting opinion filed. The discussion in the New York case is mainly on the. constitutional question involved, the dissent being placed wholly upon that ground. The facts in that case are best stated in the dissenting opinion, from which we quote: “At the time of said election the town of Lockport had been divided into two election districts, and the polling place for the first district, designated according to the city charter, was in a building situated within the city, known as No. 11 Main street, which was in the second election district of the first ward of the city of Lockport. The polling place for the second district designated in the same way was also inside the city limits, in a building known as No. 49 Locust street, which was in the first election district of the third ward in said city. Each of said polling places was about 1 mile from the nearest boundary of the said election districts of the town. The polling places for the city were distinct from those for the town, and no elector residing in the city voted at either of the town polling places, and no voter residing in the town voted at any of the city polling places.” Thus, the voters of the first district were obliged to go into the second district to cast their ballots, and the voters of the second election district were likewise required to go into the first election district to vote. It is thus parallel to the voters in the first, second, and third wards of Devils Lake being required to cast their ballots without the limits of their' wards and at the fire hall within the fourth ward, if we grant that ward lines are to be taken as defining the election districts, and then attempt to reason that § 121 of the Constitution, in defining a voter’s qualifications, in the use of the term “shall be a qualified elector at such election,” refers particularly to the election held in the precinct wherein he resides. We quote from the opinion in People ex rel. Lardner v. Carson: “We are told that the Constitution enacts that the elector must vote fin the elec tion district of which he shall at the time be a resident, and not elsewhere.’ So it does; bnt what is an election district, and by what power is it made, changed, or abolished? The Constitution has left-all that to the legislature, and hence an election district is just what the-legislature chooses to make it. In this respect it is supreme. It may say that the district shall be small or large, with such territory as it thinks proper, and it may even locate the polling places according to-its own judgment and discretion. These details are sometimes delegated to local authorities, but it can confer no power upon them that it does not possess itself. If the district is so situated that there is no-convenient place within it to hold an election, there is nothing in the Constitution that prohibits the legislature from authorizing the local authorities to locate the polling place on the other side of the imaginary line which bounds the district where there may be such a place. In a word, the whole subject of creating election districts and locating the polling places where the residents of the district may vote, is with the legislature, and it may lawfully delegate this power to local authorities.” And it will be noticed that our Constitution does not limit the local authorities in the establishing of the voting place to the establishment of a voting place in the precinct in which the elector resides. It does not touch upon that matter which is left wholly to legislative direction, which in turn, by § 142, has delegated to the council the power of designating the voting place “in each ward.” “Except in cities where aldermen are elected at large, the council shall designate one polling place only.” In which case the whole city shall constitute but one election district or precinct. In the language of the opinion in People ex rel. Lardner v. Carson: “There is nothing in the Constitution that requires the voter, when offering his vote, to stand- on the soil embraced within the boundary lines of the district, or that prohibits the legislature from making a room or building in an adjoining district a part of the district where the voter resides, for the purpose of registering and casting his vote. All that the Constitution requires is that the elector must vote at the polling place designated by law for casting the vote of the district where he resides, and the validity of his vote is not affected by the circumstance that the place is located on the wrong side of an imaginary line. When he does that, he votes in the district of his residence, and not elsewhere, within the spirit and even within the letter of the Constitution. ... An arrangement made by law for enabling the citizen to vote should not be invalidated by the courts unless the arguments against it are so clear and conclusive as to be unanswerable.” And, again, under the contention made that the law thus fixing the polling places was unconstitutional and void, that court says: “Finally, if it be granted that the contention of the relator be correct in its full length and breadth, it does not at all follow that votes cast at a lawful election by qualified electors at a place designated by an unconstitutional law are void. [Citing] People v. Cook, 8 N. Y. 67, 59 Am. Dec. 451 ; People ex rel. Watkins v. Perley, 80 N. Y. 624 ; People ex rel. Woods v. Crissey, 91 N. Y. 616 ; People ex rel. Angerstein v. Kenney, 96 N. Y. 294 ; Demarest v. New York, 147 N. Y. 203, 41 N. E. 405. . . . But if the courts should hold the law invalid as conflicting with the Constitution, would it follow that all votes cast or elections held under it were void ? To so hold would invite not the reign of law, but of anarchy; since the decision carried to its logical consequences would overthrow every power of government, without the ability to substitute anything in its place. The truth is that neither the Constitution, nor any law, attaches such absurd consequences to the error in the location of a polling place. The object of the Constitution is to secure to every citizen the right to cast one honest vote. To that end it enacts that he shall vote at his own home with his neighbors, where he is known, and not at some other polling place, where he may not be known. But all this is fully complied with when he votes with his neighbors at the place designated by law for that purpose; and whether that place be located on one side or the other of an imaginary line bounding a town or district is not, in the constitutional sense, a matter of the slightest consequence.”

And Peard v. State, 34 Neb. 372, 51 N. W. 828, is in line with our conclusions, that the electors of the city may legally vote outside their wards, assuming that by so doing they are voting outside their precincts. We quote: “The voting at the polling place outside the commissioner district is, at most, an irregularity not affecting the merits of the case. To reject the votes now would be not only to disfranchise the voters, but to defeat the will of the majority fairly and honestly expressed. The court will hesitate before adopting a construction that will be attended by.such consequences. The rule may be said to be well settled that courts will not disfranchise voters, when the election was fair and the result free from doubt, unless required to do so by the peremptory requirements of the law.” 6 Am. & Eng. Enc. Law, 325, and note. The only decision we have been able to find supporting the appellant is Bean v. Barton County Ct. 33 Mo. App. 635, decided in 1889, but which is not mentioned in Bowers v. Smith, 111 Mo. 45, 16 L.R.A. 754, 33 Am. St. Rep. 491, 20 S. W. 101, from the supreme court of Missouri three years later, in effect at least overruling Bean v. Barton County Ct. But the decision in Bean v. Barton County Ct. is expressly placed upon insufficient notice of the election declared void. And McCrary on Elections, at § 228, while laying down the rule that the time and place of the election are generally of the substance of the election, qualifies it by the statement that “the principle is that irregularities which do not tend to affect results are not to defeat the will of the majority; the will of the majority is to be respected even when irregularly expressed.” Nor do we regard Territory ex rel. Higgins v. Steele, 4 Dak. 78, 23 N. W. 91, as authority for plaintiff. There it was sought to sustain the action of the commissioners of Kidder county in an attempt to compel the people of the entire county to vote at one precinct, at the county seat, on the question of the issuance of bonds to build a courthouse, when the county had been divided into established election precincts with some of the usual voting places nearly 20 miles from the county seat. The fraudulent intent to prevent a full county vote was clearly apparent as the reason for fixing one voting place for an entire county on a county bonding question. The case before us is one concerning a special election for a city, and pertains to the municipality alone. No inconvenience of voters attending tended to restrain voting. There is a difference between requiring the people of such a limited area to vote at one voting place, from requiring the people of Bamsey county, for instance, to vote at one voting place. This distinction is too apparent for need of comment. Fraud there appeared as the reason for calling the election to be so held. Besides, prior to the enactment of chapter 65 of the Session Laws of 1911, no statute would have been disregarded had the election on this matter been conducted as it was, it being a special election; otherwise there was no necessity for the amendment to include such elections.

For another recent holding sustaining this opinion, and without which a review of the authorities would not be complete, see State ex rel. Lane v. Otis, 68 N. J. L. 656, 54 Atl. 442, where an election was sought to be invalidated “because the polling place selected by the clerk, and advertised as the place for said voters to vote, was not in fact located within the territory . . . within the township voting district, but was in fact in a building situated within .the territorial boundaries” in another borough. “There is no allegation of fraud on the part of anyone. Does the mere fact that a voting precinct or polling place has been selected outside the district defeat the whole vote cast at such polling place? That does not raise the question of one voter lawfully entitled to vote in one district voting in the ballot box of another district, but is the case of a voter voting at the polling place provided for him to vote at for the district in which he resides. . . . The voter must vote or be disfranchised at the place selected by the clerk and advertised as the polling place for the ‘election district’ in which he resides. These sections of the election law only fix the method of selecting the place and giving notice to the voter where he may lawfully vote as a resident of a particular election district. An error of the clerk in the selection of the place should not disfranchise the voter, no matter where the place is, if it is the place selected and advertised, and where the proper election officers conduct the election, and is the only place lawfully provided for the voters of that particular election district to vote at. The ballots thus cast are cast by legal voters, and cast at the place provided for that purpose by the officer charged with that duty by law. If a clerk by selecting a place just over an election district line could defeat the whole vote of the district, it would be putting a premium on fraud. The right of suffrage is too sacred to be defeated by an act for which the voter is in no way responsible, unless by the direct mandate of a valid statute, no other construction can be given. There is nothing in our election law which requires a rejection of votes honestly cast and counted in a case like the one before us.” This was said in construing their election statutes, one of which there quoted, reads: “Every person possessing the qualifications required by the Constitution, and being duly registered as required by this act, shall be entitled to vote in the election district in which he actually resides, and not elsewhere,” quoting from page 659 of the reported opinion. The decision is dated in 1903. Article 2 of the New Jersey Constitution, de daring the right of suffrage, merely defines the qualifications of electors, as does our own. But the statute quoted is fully as stringent as any we have. The New Jersey case cites and follows People ex rel. Lardner v. Carson, 155 N. Y. 491, 50 N. E. 292 ; Ex parte White, 33 Tex. Crim. Rep. 594, 28 S. W. 542, and Peard v. State, 34 Neb. 372, 51 N. W. 828.

We are aware Pennsylvania and Wisconsin holdings would, if followed, inject into this case a constitutional barrier to the validity of this election. We refer to the cases of Chase v. Miller, 41 Pa. 403 ; Re McNeill, 111 Pa. 235, 2 Atl. 341, and State ex rel. Wannemaker v. Alder, 87 Wis. 554, 58 N. W. 1045. Investigation will show that these decisions are under Constitutions which not only prescribe the qualifications of electors, but, as is said in Chase v. Miller, 41 Pa. on page 419, prescribe “a rule of voting also;” and the same reference is also made in the McNeill Case, 111 Pa. on page 237, 2 Atl. 341,- wherein the court says the new Constitution of 1838 “introduces not only a new test of the right of suffrage, but a rule of voting also.” In brief, § 6 of the Pennsylvania Constitution of 1776 merely prescribed an elector’s qualifications. The same with the second Constitution of Pennsylvania of 1790. See § 1, art. 3, thereof. When the third Pennsylvania Constitution became effective in 1838 it contained a radically different provision, and, in addition to prescribing the qualifications of an elector, announced a rule.for voting, as is declared by said decisions construing it. See § 1, art. 3, thereof, reading: “In elections by the citizens every white freeman of the age of twenty-one years, having resided in this state one year, and in the election district where he offers to vote ten days immediately preceding such election, . . . shall enjoy the rights of an elector.” And the fourth Pennsylvania Constitution of 1873 still perpetuates this distinction by the words: “lie shall have resided in the election district where he shall offer to vote at least two months immediately preceding the election.” Sec. 1, art. 3, of the Wisconsin Constitution, is very similar to that of Pennsylvania. It reads: “Every male person of the age of twenty-one years or upwards . . . who shall have resided in the state for one year next preceding any election, and in the .election district where he offers to vote . . . not exceeding thirty days, shall be deemed a qualified elector at such election.” Obviously the words, “where he offers to vote,” must have some significance. They are not in our constitutional provision, which defines merely an elector’s qualifications, leaving the time, place, manner of voting, boundaries of election precincts, and kindred matters to legislative enactment without constitutional restrictions, so long as suffrage is not abridged. These cases may be distinguished on other grounds also, but the constitutional distinction is clear. And the New York, Texas, Missouri, and New Jersey cases decided under constitutional definitions of an elector similar to our own must be followed. We might call attention that cases opposed to the Pennsylvania cases cited may be found from that state, as are noted and cited in 10 Am. & Eng. Enc. Law, 2d ed. 688; at which place also is cited Bean v. Barton County Ct. 33 Mo. App. 635, the lone case appearing to support appellant’s contention, but no reference is there made to Bowers v. Smith, 111 Mo. 45, 16 L.R.A. 754, 33 Am. St. Rep. 491, 20 S. W. 101, in effect a contrary holding to the earlier case of Bean v. Barton County Ct. Minnesota is in line with our holding. See Stemper v. Higgins, 38 Minn. 222, 37 N. W. 95.

It is urged that § 8597 of the Penal Code applies, reading: “Every person who, at any election, knowingly votes or offers to vote in any election precinct or district in which he does not reside, or in which he is not authorized by law to vote, is guilty of a misdemeanor.” But in this section is drawn a distinction between the district in which he resides and in which he is authorized by law to vote. And in any event the penal provision could not here apply, as no one would say that the voters generally, by voting, each committed a crime, because the voters in certain wards followed the direction of the lawful authorities calling the election, and making the city one de facto voting precinct for this city election, by requiring that all voters vote at one central polling place. In law, four polling places should have been, opened and four precincts should have existed for this election, but in fact but one voting place was opened, and but one precinct or election district did actually exist, composed irregularly of a combination of all election districts or wards of the city. The penal provision does not apply to the voter who votes at the same place fixed by lawful authority to vote, as do all the electors in the precinct in which he resides. Every elector in Devils Lake who voted at this central voting place voted in the precinct of his residence, within the meaning of the provision of the Con stitution defining an elector. People ex rel. Lardner v. Carson, 155 N. Y. 491, 50 N. E. 292 ; State ex rel. Lane v. Otis, 68 N. J. L. 656, 54 Atl. 442. And tbe election must stand or fall according as it be, as a whole, determined to be irregular or void ab initio. We believe that, ■in the absence of any statutory provisions expressly declaring an election so held to be invalid, we must hold the election legal and valid under this attack, following the reasoning of State ex rel. Byrne v. Wilcox, 11 N. D. 329, 91 N. W. 955 ; Davis v. State, 75 Tex. 420, 12 S. W. 957, followed in Ex parte White, 33 Tex. Crim. Rep. 594, 28 S. W. 542 ; Bowers v. Smith, 111 Mo. 45, 16 L.R.A. 754, 33 Am. St. Rep. 491, 20 S. W. 101, the doctrine of which is expressly approved in Perry v. Hackney, 11 N. D. 148, 90 N. W. 483, and again followed in State ex rel. Byrne v. Wilcox, supra ; and People ex rel. Lardner v. Carson, 155 N. Y. 491, 50 N. E. 292 ; and State ex rel. Lane v. Otis, 68 N. J. L. 656, 54 Atl. 442.

The foregoing authorities are distinguishable from holdings similar to Elvick v. Groves, 17 N. D. 561, 118 N. W. 228, and State ex rel. McCarthy v. Fitzgerald, 37 Minn. 26, 32 N. W. 788, cited by appellant. The latter case is a holding declaring a statute unconstitutional making no provision for the exercise of the right of suffrage and in effect disfranchised those having such right. No one is claimed to have been disfranchised in this city election, and the case is not in point. In Elvick v. Groves, supra, to which we might add the recent Burke county-seat case of State ex rel. Johnson v. Ely, 23 N. D. 619, 137 N. W. 834, a different principle was involved than before us in this case. In those cases the precinct officers and electors arbitrarily, and for mere convenience and without necessity, held the election in the precincts concerned at a different voting place than that fixed by the county commissioners as the official voting place. In Elvick v. Groves, reading from page 565 of the report, “the established voting-place was arbitrarily changed to a place between 3 and 4 miles distant. No excuse is shown except that it was deemed by the electors at the meeting that resolved in favor of the change that schoolhouse No. 3 was a more convenient location for the electors generally. We do not think the question as to which is the most convenient place for a voting place should be left to the judgment of the voters independently of or contrary to the judgment of the county commissioners. On that question we think the action of the county commissioners should be deemed final, and not subject to change by the authorities except under extraordinary circumstances. Circumstances may arise making a change absolutely necessary, but the question of convenience should not be considered an excuse or justification for the setting aside of the official action of the proper authorities on so important a question as the establishment of a place for voting in a precinct.” The court cites Knowles v. Yeates, 31 Cal. 83, where the precinct election wa.s held 6 miles from the voting place officially designated. Thus, it will be seen this court there was asked to decide and establish precedent thereby as to whether, for a mere supposed convenience of the voters, with no question of necessity involved, official discretion and action of the lawful authority establishing the official place for voting could, by mere caprice and for mere convenience, be overridden by the election officers and electors voting. If, in the Elvick v. Groves Case the vote had been upheld, it would have meant that the official action of the county commissioners in designating the voting places meant but little; and our court, following the weight of authority, sustained official action. But these cases, by their terms, do not apply to an election held at a place changed under force of necessity, as where the building to be designated as the official voting place and to be occupied for such purposes had, prior to election, burned or been removed. In the case before us the election was noticed, by the proper officer to give notice thereof, that it would be held at the one central voting place for the entire city. While the record is silent as to the authority under which it was noticed, we must assume, inasmuch as the authority of the clerk to notice the same is unchallenged, that the election so noticed was in obedience to the direction of the city council, and that the election was so held and conducted pursuant to order of the lawful municipal authority to call and conduct the same. The voters, then, as is said in the New Jersey case cited, must have voted there, or not at all. They have but complied with the election requirements in so voting, and have not disregarded any official action; and the validity of the election is not measured by any irregularity, misconduct, or omission on the part of any of the election officers, but must stand or fall upon the disregard, by the proper municipal authorities calling the election, of ward lines, and their failure to open places for voting in each ward. The determination of this ques tion must be decided by different principles than apply to the mere conduct of a precinct election.

But appellants urge that the election must fall because more than 100 voters named in the complaint were allowed to vote at said election without being “registered as required by chapter 128 of the Laws of 1911,” and “without furnishing to the judges of said purported election their respective affidavits containing a statement to the effect that they, or either of them, were residents and voters of the precinct in which they were allowed to vote, and without showing by such affidavit that they were qualified voters of said city, and without proving, by the oath of a householder or registered voter, that they or either of them were qualified voters in said purported election; and plaintiff alleges that a great many of those not registered as required by law, and who were allowed to vote at said purported election, were not then and there qualified voters of the city of Devils Lake.” Then follows the names of 193 of such purported voters. Upon this portion of the complaint, appellant assigns error in that the persons named, in voting at the central polling place, voted without the limits of their precincts, and hence were not registered voters of the precinct in which they cast their votes; and in support thereof cites the penal statute, § 8797, Rev. Codes 1905; and also § 7242, Rev. Codes 1905, that the annual elections in such cities shall be held “at such place or places in each ward as the council shall designate.” Fitzmaurice v. Willis, 20 N. D. 372, 127 N. W. 95, a holding upon a general election, is cited as invalidating this special election, because of want of registration prior to the election. Much said heretofore upon the validity of the election here applies.'

This assignment must fall when we fail to find any provision of law requiring a registration prior to a special election held for .this purpose. Such an omission is probably the result of legislative oversight, but is something that the courts cannot cure without in fact legislating. Prior to chapter 65 of the Session Laws of 1911, § 2743, regulating city election districts, was silent as to the boundaries of said districts, except for state and county elections, leaving special and school elections in cities to other regulations as to wards and voting precincts. Then chapter 65 of the Session Laws of 1911 brought city and school elections under the provisions of law as to wards and elec tion precincts governing county and state elections. But prior to such amendment, § 2744, Bev. Codes 1905, provided “that the city council shall provide for the registration of all voters as required by the laws of the state,” which had particular reference to §§ 732 to 746 inclusive, being art. 16, entitled “Begistration of Voters,” of chap. 8, of the Political Code and governing elections. A reference to §§ 732 et seq. discloses registration to be required for “any general election or annual city election” only; and the original section, 738, amended by chapter 128 of the Session Laws of 1911, concerned only such elections, the general election or the annual city election, to vote at which registration was required. Hence chapter 128 thereof, containing the words, “no vote shall be received at any election in this state if the name of the person offering such vote is not on the register,” and following provisions, has no application to a special city election, and cannot broaden the provisions of the article, especially when we find that nowhere in the-law is there any specific requirement for registration to vote at a special city election, nor is there any time provided At which such registration shall be had prior to a special city election for bonding purposes, nor is the time specified at which registration must be had except prior to general and annual city elections, under the provisions of §§ 732 and 735, Bev. Codes 1905. None of the statutes as to registration apply to special city elections for purposes such as bonding. So that the provision of § 2744, providing that the city council “shall provide for the registration of all voters as required by the laws of this state,” is not applicable to this special election, inasmuch as there is no law of this state authorizing registration in advance of such an election. And this is borne out by the plain provisions of § 2749, Bev. Codes 1905, providing that the city council, “in all cases when necessary for the purposes of this chapter, may call special elections, canvass the returns thereof, and provide by ordinance for the mode of conducting the same; and shall give notice of such special elections, in which shall be stated the questions to be voted upon, and cause such notices to be published for the same length of time and in the same manner as is required in the case of regular annual elections in such city, unless herein otherwise provided.” And we find this election is authorized specifically under the provisions of art. 4, empowering the submission of this question “at a general or special election” to the voters of the municipality. So, the election was called, in one of the cases, “necessary for the purposes of this chapter,” and was a valid special election so far as authority to call the same was concerned. And the only conclusion we can arrive at is that either by legislative oversight no provision for registration at this special election is provided by statute, or else it was purposely left to the city council to provide by ordinance for such registration, under the provisions of § 2749, authorizing it by the words, and “provide by ordinance for the mode of conducting the same,” referring specifically to special elections so-called when necessary for the purposes of the chapter in question. The pleadings and affidavits do not disclose whether any ordinance existed requiring registration in advance of this election. Hence, the assignment based upon an erroneous supposition that registration was a requisite to a valid election must fall.

Then, again, appellant in his complaint alleges “that at said purported special election the following who were not qualified voters or electors in the city of Devils Lake were allowed to vote.” Then follows the names of twenty-one persons. Upon this allegation appellant, in assigning error, reasons that six of these illegal voters may have voted for the increase in the debt limit, without which illegal votes the necessary two-thirds vote to authorize such increase, under § 2678, Kev. Codes 1905, would not have been had. Needless to say this assignment is based upon no allegation to that effect in the complaint, granting that the election could be so assailed. Should proof be made on trial that twenty-one persons, not legal voters, participated in such election, that would in nowise invalidate the election, or raise any inference in the absence of further proof of fraud in the conduct of the election, or that the fraudulent votes would in fact change the result thereof. Neither fraud nor that.the result was changed is here alleged. And if we would, under such circumstances, purge the returns of such illegal votes, by deducting from both the affirmative and the negative that proportion of the twenty-one votes assumed to be illegally cast, proportionate to the total vote that each affirmative and negative total bears to the total number voting, the rule prescribed by McCrary on Elections, § 495, applicable under some circumstances, a two-thirds majority would still remain in favor of the increase in the debt limit; so that result would not be affected, even though we treat this allegation of the complaint as sufficient to authorize the casting out.of twenty-one illegal votes.

Appellant also urges that there was a defective publication of notice of election, because the newspaper in which it was published had never been designated as the city official newspaper. We do not think it necessary to the validity of the notice that it be published in the official newspaper of the city. Sec. 2678, Subdiv. 5, provides that the election shall not be held until “after twenty days’ notice in a newspaper published in the city.” It was so published. The statute was complied with. But the newspaper in which such publication was made was thq official city paper, so designated under § 2677, at a meeting held sometime in October, instead of in May. The time direction in this statute is directory, like most time requirements. The statute, from its terms, would bear no other construction, it providing for designation by the council “at its first meeting in May, or as soon thereafter as practicable” of the city newspaper.

We now approach questions more difficult of solution. Appellant maintains that, though the election as such was valid, nothing was authorized thereby. That fatal defects exist, in that the resolution of the city council authorizing the submission of the issuance of these bonds to the people for authorization by them, under § 2678, Bev. Codes 1905, is a nullity, because (a) it was not passed as an ordinance, but instead is simply the resolution of the city council; (b) that the resolution is fatally indefinite in the amount of the proposed bonded indebtedness to be submitted to ballot; (c) that the ballot itself is void as indefinite in the amount of bonds authorized; (d) that the notice given of the special election did not inform the voters that an election would be held to submit to them the question of bonding for a certain determined amount, as required by statute; and also that the resolution calling the election was insufficient because of the foregoing particulars to authorize the legal notice to be given of the special election; (e) that because of the form of the ballot, grouping together and thereby exacting a vote upon propositions jointly that should have been voted upon separately, no expression of popular will was had upon either of the two questions submitted, and the election falls.

The city council by resolution found the necessity for the establish ment of a municipal electric lighting plant for the city, and that one could be established, “abundantly sufficient to supply the city of Devils Lake for lighting and power purposes”. . . . at a cost of “not to exceed $33,000,” and that the assessed valuation of the city for that year was $1,154,000; that it was necessary for the welfare of the city and its inhabitants that such municipal light plant should be established. And further that:

“Be it further resolved that the following question be submitted to the legal voters of the said city: 'Shall the city of Devils Lake be authorized to increase its indebtedness 3 per cent on its assessed valuation, beyond the 5 per cent limit now prescribed by law, for the purpose of establishing a municipal light plant for said city, and said city be authorized to issue bonds for said indebtedness in the sum of $33,000, drawing interest at the rate of 5 per cent per annum, payable annually, said bonds to be issued for a period of twenty years, the denomination of said bonds to be one thousand dollars ($1,000) each.’ ”

It will be noticed that this resolution contemplated the subnission of a question of increasing the indebtedness and also the issuance of $33,000 worth of bonds described, as a separate matter, both for the specified purpose of establishing a municipal light plant. Then followed a resolution fixing the form of the ballot. Pursuant to this resolution, notice of such special election was given, that it was to be held November 5, 1911, for these specified purposes, and at the one central voting place. Then followed in the notice of election the recital of the same form of ballot as fixed by the resolution of the city council. The notice of election was definite as to time and place of holding, and as to the question of increase of indebtedness, and also definite as to the sum ($33,000) for which bonds were to be issued.

The official ballot used at the election reads as follows:

Shall the city of Devils Lake be authorized to increase its indebtedness and to issue its bonds therefor in an amount equal to 3 per cent of its assessed valuation over and above the 5 per cent limit of indebtedness on the assessed valuation as now provided by law, in accordance with the provisions of subdivision 5, of § 2618, of the Bev. Codes of North Dakota for the year 1905, for the purpose of establishing a municipal light plant and of issuing bonds therefor in a sum not to ■exceed said increased indebtedness; said bonds not to exceed $33,000; which bonds shall be in a denomination of $1,000 each, drawing interest at the rate of 5 per cent per annum, payable annually, and said bonds to be issued for a period of twenty years?

In favor of said increased indebtedness and issuance of bonds... □

Against said increased indebtedness and issuance of bonds..... □

More than two thirds of those voting at the election voted “in favor ■of said increased indebtedness and issuance of bonds.” This ballot thus submitted two questions: (1) Whether the debt limit should be increased as authorized by the Constitution and statute; and (2) whether bonds therefor, in an uncertain amorint “not to exceed $33,000,” should be issued, all for the purpose expressed “of establishing a municipal light plant and paying therefor.” It was sought to combine two elections. The Constitution and the statutes undoubtr ■edly contemplate two separate elections, although both may properly be consolidated and held as one when a separate vote on each question is permitted. The Constitution, § 183, authorizes a city by a two-thirds vote to increase its indebtedness 3 per cent beyond an existing 5 per cent limit of indebtedness. The statute, subdiv. 5 of § 2678, provides the restrictions under which this may be done; and subdiv. 11 empowers the city council to build such a municipal lighting plant. 'To increase such debt limit an affirmative two-thirds vote is required. After the limit of indebtedness has been thus increased to a total of •8 per cent of the city’s assessed valuation, the city is authorized to incur an indebtedness to that limit for such purposes.

Both counsel have submitted this case upon the theory that the election must fall as to both propositions, if either increase of debt limit •or authorization of bond issue be invalid. Examining the election as to each, we find the bond election defective in the form of ballot used. In the resolutions and notice of election, the question of increase of indebtedness is definitely and separately stated. As to the ballot used both propositions are attempted to be set forth, the only uncertainty arising from the use of the words, “not to exceed $33,000,” as the amount in which bonds are to be authorized. There is no uncertainty in the submission of the question as to the 3 per cent increase of the debt limit. The election, unless invalid for other reasons, must have authorized at least au extension of the debt limit. As to the issuance of bonds, the resolution authorized the issuance in a definite amount “in the sum of $33,000.” And the notice of election was equally definite. The uncertainty in the matter of amount was caused by the official ballot using the words, “said bonds not to exceed $33,000.” Under the statute cited, as construed in Stern v. Fargo, 18 N. D. 289, 26 L.R.A.(N.S.) 665, 122 N. W. 403, we must hold that such portion of the ballot as to bonding did not authorize the issuance of a bonded indebtedness for a definite amount, but instead sought to delegate a nondelegable matter to the city council, i. e., the determination of the amount of the bonds to be issued, the words, “not to exceed $33,000,” not definitely stating the amount “for which said bonds are to be issued” to comply with the requirement of subdiv. 5, of § 2678, Rev-Codes 1905. The reasons are stated in Stern v. Fargo. We are aware that there are two lines of authorities on this question, but our court is committed by that holding. Respondent, to avoid this precedent, contends that what was there said was with reference to the notice of election, and that as the resolution and notice of election in this case are specific in the amount of bonds authorized, any uncertainty in the ballot in this respect is but an irregularity. But the’ballot is the instrument by which the voters empower the city council as their agent to incur the indebtedness. The voter does not merely assent to the exercise of a power existent in the council, but, instead, delegates a power to it. In order to clothe the council with this power, it is neces- ■ sary that the ballot, provided by law with which to confer it, shall be as definite as to the amount for which the indebtedness is authorized as it is that the manner of creation of the debt by issuance of bonds should be definite. The city has no implied powers in these respects. Stern v. Fargo, supra ; 1 Dill. Mun. Corp. 5th ed. §§ 237 et seq. If it is necessary, as held in Stem v. Fargo, that the notice of election shall definitely state the amount of the proposed indebtedness to be passed upon by the election, it certainly is necessary that the ballot be equally definite in such particular. The statute must be construed as applying to the substance of the ballot, and that, by failing to definitely specify the amount of bonds to be authorized, the election as to bonds is invalid under this direct attack thereon.

But does the submission of both propositions, the increase of the debt limit and the issuance of bonds upon one ballot in the form submitted, invalidate the entire election or only the bond issue? The election to increase the debt limit, as heretofore stated, was called in compliance with a constitutional provision, § 184 thereof. Concerning this, Dillon on Municipal Corporations, 5th ed. § 213, says: “Although the Constitution may not contain any direction as to the manner in which the question shall be submitted, other than that the assent of the voters shall be obtained at an election Tor that purpose/ it is implied in the constitutional direction that the voters shall be permitted to express their opinion on the question of creating the indebtedness per se, disconnected from any other district and different proposition, which may be submitted for their consideration, not related to the subject of incurring the debt. But the project or improvement . . . with which it is proposed to incur the debt, and the debt itself, have a necessary relation to each other, and they may be submitted together although the opinion has been expressed that even in such cases the better practice would be to provide for separate elections on these questions.” It will be noted that this rule does not prohibit the voters from expressing their opinion at the same time upon this question of bonding, provided they may so express their opinion separately upon the questions submitted. Accordingly it was proper that the ballot should also state that the purpose for the authorization of the 3 per cent increase of indebtedness was to establish a municipal light plant.

Concerning the dual propositions voted upon at the election, the ballot specified clearly both questions, — (1) the increase of the debt limit, and (2) the issuance of bonds should the debt limit be increased. Does the failure of the bond question, because of the ballot being indefinite in amount of bonds to be so authorized, invalidate also the election as an expression of a desire to increase the debt limit? We cannot see how the bond question has prejudiced the election upon the increase of the debt limit. Every voter was charged by law with knowledge that the primary purpose of the election was to increase the debt limit, and must have known, as a matter of law, that without that increase no bond issue could be authorized. Hence the bond issue being dependent for validity wholly upon the constitutional increase of the debt limit, in nowise could affect the decision of or influence the voters in voting upon the question of whether the constitutional increase should be had or not. To illustrate, if the voter was in favor of the issuance of bonds, he must also be in favor of increasing the debt limit, otherwise we must presume him to be ignorant of the law. Soj too, if the voter be favorable to both issuance of bonds and increase of the debt limit, he has but expressed his opinion when he votes affirmatively on both propositions at once. Then, again, if he is in favor of' an increase of the debt limit, but against the increase of bonds, but. for any reason because of the debt limit feature is induced to vote-for the bonds as well as the debt limit increase, nevertheless he has in fact expressed but his opinion upon the increase; and the only prejudice he, as a voter, has suffered, has been to vote for the bond issue-which he did not desire. The voter, then, in voting for an increase of the debt limit, has been neither influenced for nor prejudiced by the-bond'question, unless you impute to him ignorance of law, which is contrary to the controlling presumption that every man is supposed to know the law. Of course, if the voter was against increasing the-debt limit, as 156 of them were at this election, he had the opportunity to vote against the debt limit and has availed himself of it. And no-voter can be presumed to be so ignorant of the law as to be against' the debt limit and still be for the issuance of bonds, to consummate-which would contemplate a legal impossibility. This covers every phase of the ballot situation from the voter’s standpoint. Our conclusion is that it is self-evident that no voter could be misled by the form of the ballot requiring a vote for or against both propositions and without separating them. The questions should have been so submitted that each could have been voted upon separately. But the-election is as to increase of the debt limit a valid expression of the-popular will, and a valid increase of the debt limit for the purpose. As authority for sustaining an election under such circumstances, see-State ex rel. Canton v. Allen, 178 Mo. 555, 77 S. W. 868-875 ; and Thompson-Houston Electric Co. v. Newton (C. C.) 42 Fed. 723.

Finally it is urged that the election was unauthorized because it was. brought about by a resolution of the council, instead of under a city-ordinance. Appellants urged that the charter clothed the city council with general power to provide for lighting the city, but as to the-mode of carrying it into effect it was powerless to exercise that right except through the medium of ordinances duly passed under the pro visions of snbdiv. 11, of § 2678, and § 2679, Rev. Codes 1905, and cite in support of their contention Engstad v. Dinnie, 8 N. D. 1, 76 N. W. 292 ; and Roberts v. Fargo, 10 N. D. 230, 86 N. W. 726. We cannot agree with this'construction of the law. It will be noted that, concerning the exercise of the powers conferred upon the city council to submit to the municipality these questions, at no place is it expressly required that it shall be done by ordinance. Section 2679 provides: “When by this chapter the power is conferred upon the city council to do and perform any act or thing, and the manner of exercising the same is not specifically pointed out, the city council may provide by ordinance the details necessary for the full exercise of such power.” This confers upon the city council the power of controlling the details of the execution of its power by ordinance; but among the powers of the council is subdiv. 5 of § 2678, authorizing the increase in the limit of indebtedness and an election for voting bonds. This provision itself provides all the essential details, and leaves little, if anything, to the necessity of regulation by ordinance, and hence no necessity exists for an ordinance on the subject. Concerning such an election 28 Oye. 549, announces the rule to be, “A resolution or order authorizing an election is sufficient where a formal ordinance is not expressly required.” Citing Hamilton v. Detroit, 83 Minn. 119, 85 N. W. 933 ; and State ex rel. Canton v. Allen, 178 Mo. 555, 77 S. W. 868.

Concerning this question, vol. 2, of 5th edition of Dillon on Municipal Corporations, at §§ 571, 572, also effectually answers the point urged. We quote: “It has been said that a resolution is an order of the council of a special and temporary character, while an ordinance prescribes a permanent rule of conduct or government. This statement of the characteristics of resolutions and ordinances points out generally the proper province of these forms of municipal action.” Our statute is silent as to whether a resolution or ordinance shall be passed as a basis for increasing the debt limit and for bonding. To hold a resolution necessary, we would, by construction, apply a general statute governing ordinances to this particular subject-matter. To do so would violate the general rule as announced by Cyc., and also by § 572 of Dillon, which reads: “The general rule has been laid down by many decisions, that when the charter commits the decision of a matter to the council, and is silent as to the mode, — neither expressly nor by necessary or clear implication requiring the action of the council to be in the form of an ordinance, — the decision of the council may be evidenced by resolution, and need not necessarily be by ordinance. This rule has been laid down without any qualification restricting it to those acts and decisions which are of a special and temporary nature, and which do not involve any permanent rule of conduct or government,” — citing' cases from many states on bonding matters, waterworks, and light contracts, including National Tube-Works Co. v. Chamberlain, 5 Dak. 54, 37 N. W. 761 ; Crawfordsville v. Braden, 130 Ind. 149, 14 L.R.A. 268, 30 Am. St. Rep. 214, 28 N. E. 849 ; Board of Education v. DeKay, 148 U. S. 591, 13 Sup. Ct. Rep. 706, 37 L. ed. 573, 13 Sup. Ct. Rep. 706 ; Alma v. Guaranty Sav. Bank, 8 C. C. A. 564, 19 U. S. App. 622, 60 Fed. 203 ; Illinois Trust & Sav. Bank v. Arkansas City, 34 L.R.A. 518, 22 C. C. A. 171, 40 U. S. App. 257, 76 Fed. 271 ; Roberts v. Paducah, 95 Fed. 62 ; Ogden City v. Weaver, 47 C. C. A. 485, 108 Fed. 564 ; Los Angeles Gas Co. v. Toberman, 61 Cal. 199 ; Pollok v. San Diego, 118 Cal. 593, 50 Pac. 769 ; Smalley v. Tates, 36 Xan. 519, 13 Pac. 845, same case in 41 Kan. 550, 21 Pac. 622 ; Lincoln Street R. Co. v. Lincoln, 61 Neb. 109-144, 84 N. W. 802 ; State, Van Vorst, Prosecutor, v. Jersey City, 27 N. J. L. 493 ; Burlington v. Dennison, 42 N. J. L. 165 ; Brady v. Bayonne, 57 N. J. L. 379, 30 Atl. 968 ; Porch v. St. Bridget’s Congregation, 81 Wis. 599, 51 N. W. 1007 ; Green Bay v. Brauns, 50 Wis. 204, 6 N. W. 503, and other cases. See also Seymour v. Tacoma, 6 Wash. 138, 32 Pac. 1077.

As to the cases cited by appellant, we do not consider them in point. Both were construing § 2262 of the Eev. Codes of 1895 (§ 2753, Eev. Codes 1905), requiring the council to pass an ordinance to determine the annual appropriation bill in which it “may appropriate such sums of money as 'may be deemed necessary to defray all necessary expenses and liabilities of such corporation,” with other sections of the statute involved; and it was held that a mere resolution did not comply with the express provisions exacting an ordinance in such cases. Plainly these cases have no application to the election matter before us.

It is urged by appellant that “in order to carry the proposition of issuing bonds for increased indebtedness over tbe debt limit, under subdiv. 5 of § 2678 of tbe Code, the same must receive enough votes to constitute a majority of all tbe legal voters in tbe city, whether voting or not.” We are not concerned with tbe construction of § 183 of tbe Constitution, providing that “any incorporated city may, by a two-tbirds vote, increase such indebtedness.” But tbe assignment is based particularly upon tbe statute quoted, which provides that a bond issue for such purposes can only be bad after “tbe legal voters of such city shall, by a majority vote, determine in favor of issuing such bonds.” We do not pass upon this assignment, it being unnecessary to do so, bolding as we do that tbe proposed bond issue was invalid because of fatal defect in tbe form of tbe ballot. It is unnecessary to construe this statute. There is no certainty of it being raised should an election hereafter be bad upon tbe issuance of such bonds.

Of course tbe fact that this is a special election, instead of a general one, is immaterial, and makes no difference in tbe application of tbe principles of law involved. Distinctions between special and general elections concern only tbe steps taken in advance of tbe election, such as giving notice of time, place of bolding, and objects of tbe election. As to tbe validity of tbe election held after proper notice and for lawful purposes, after authorization by tbe constituted authority, and regularly conducted, no distinctions can be drawn between special and general elections. Ex parte White, 33 Tex. Grim. Bep. 594, 28 S. W. 542, supra, is a decision upon a special election.

This disposes of all questions before us. Under tbe pleadings, upon tbe admitted facts and tbe issues of law arising therefrom, and assuming that tbe proof on trial on tbe merits will present tbe same facts and issues now before us, our bolding would be, as it is, that tbe election held was valid and resulted in increasing tbe debt limit 3 per cent over tbe existing 5 per cent of indebtedness for the purpose of establishing this municipal lighting plant; but that tbe city council have not been authorized by tbe voters to incur such indebtedness for such purpose by bonding or otherwise, tbe election as to such bonding question being as to that invalid because of tbe fatal defect of uncertainty in tbe ballot as to tbe amount of bonds authorized for such purposes. Therefore tbe order appealed from, of date of February 5, 1912, dissolving and vacating tbe injunctional order pending trial and final disposition of the action, should be vacated, and the injunctional order restraining the issuance and sale of the proposed bonds based upon the election had, purporting to authorize the same, should be reinstated: Provided, however, that such order shall not restrain the city, its council, or officials from taking steps necessary to the holding of an election at which to submit to the electors of said city the question of whether bonds in an amount certain, not exceeding the debt limit of said city as increased, shall be issued for the purpose of establishing such municipal light plant; this judgment shall not prejudice the rights of the parties in the entry of final judgment herein, except that the court shall not, after this appeal, permit the trial on the merits of new issues not within the scope of the pleadings, nor permit amendments to the pleadings to bring in other matters after the parties hereto have so stood on appeal upon the issues as so framed. Judgment will be entered accordingly. Appellant will recover judgment against defendant city for costs and disbursements on this appeal.