Plaintiff, a resident taxpayer and registered elector of the city of Helena, on November 10, 1920, applied for an original writ to enjoin defendants from issuing and selling certain bonds. The petition of plaintiff discloses the following facts:
That on May 19, 1930, a petition signed by more than twenty per cent of the qualified, taxpaying, registered electors of the city of Helena, was presented to the city council requesting that an election be called for the purpose of submitting to the taxpayers the question of issuing bonds in the sum of $200,000 for the purpose of improving and making more efficient the water plant of the city of Helena. The petition was by resolution of the council declared sufficient. On June 9 the council passed an ordinance calling for an election and directed it
to be held on July 7. Notice of the election was published for a period not less than three weeks prior to the election in a newspaper in Helena, and copies were posted in not less than three public places in the city and one at each polling place, and nine in nine of the most public places in each ward, all for a period of not less than three weeks prior to the date of the election. On June 9 the city council appointed registry agents in each ward for the registration of electors to vote on the proposed bond issue, and directed that the registration be made on July 1 and 2. On June 27 notices designating the time when and place where registration would be conducted were posted at each registration place, and nine copies were posted in nine of the most prominent places in each ward, and the notice was published in the "Helena Daily Independent" for four consecutive days prior to the time provided for registration, all as provided in certain city ordinances. The registration agents in obedience to the provisions of the ordinances, required applicants to sign and swear to a statement that he or she had "paid taxes upon property owned by and assessed to" him or her "on the assessment-roll of the city * * * next preceding the election." Three applicants whose names appeared upon the assessment-roll for the preceding year, and who were qualified electors, declined to make the affidavit required, because it contained the statement that taxes assessed to them had been paid. Fourteen hundred and sixty-five persons registered under this plan of registration.
Each registry agent on the day following the registration posted in a conspicuous place in his ward, at the place where votes were received at the election thereafter held, a list of all persons registered at such registration. It is alleged that none of the proceedings provided for by sections 566, 567, Revised Codes of 1921, by Chapter 98, Laws of 1923 or by Chapter 47, Laws of 1929, were observed. Twenty-eight persons who had registered under the municipal plan had been found not to have paid taxes upon property assessed to them on the last preceding assessment-roll and were not permitted to vote, which
included plaintiff. The county clerk of Lewis and Clark county had kept and preserved registry books as required of him by law, and all of the persons who voted at the special election in question, except 51, were registered in the registry records of the county clerk on the forty-fifth day prior to the election; these 51 persons were permitted to vote and were not registered on the books of the county clerk, but had registered under the municipal registration and had paid taxes on property assessed on the last preceding assessment-roll. On the date of the election, and for forty-five days prior thereto there appeared the names of 2,512 persons upon the county registry books whose names appeared upon the assessment-roll of the county for the year preceding, assessed upon property within the city. Of this number, 1,047 persons did not register or attempt to register under the municipal registration and did not vote or attempt to vote at the election in question. At the time of the election, and forty-five days prior thereto, 128 of the persons otherwise qualified to vote had not paid the tax assessed against them on the assessment-roll next preceding the election, 32 of whom registered at the special election, and 4 of the 32 voted.
At the election of July 7, 573 votes were cast in favor of the bond issue, and 437 against it. Thereafter, and on July 28, an ordinance was passed providing for the issuance and sale of the bonds on September 2, at which time the bid of the state board of land commissioners, subject to the approval of the attorney general, was accepted. On September 16 an ordinance was passed providing for the form and manner of execution of the bonds. The attorney general has not approved the proceedings. It is alleged that unless enjoined from so doing, the defendants will sell the bonds, levy and collect taxes for the payment thereof, and collect water rents and charges therefor; the election proceedings are alleged to have been unlawful, illegal, and void for the following reasons:
1. That the registration for the election was not closed as provided by law.
2. That notice of closing registration for the election was not given thirty days before the closing, as required by law.
3. That lists of registered electors qualified to vote were not prepared by the county clerk and posted, as required by law.
4. That registered electors of the city whose names appeared upon the assessment-roll for the year next preceding the day of election were denied the right to vote because delinquent in the payment of taxes for such year.
5. That persons not registered as required by law were permitted to vote at the election.
Defendants filed an answer admitting all of the facts alleged in the petition, but denying the conclusions alleged with respect to the validity of the election. The answer alleges that not more than 28 persons, otherwise qualified to vote, applied and were denied the right to vote because they had not paid taxes, and that it is unknown how many of them would have voted for or against the bond issue; that not more than 51 persons who voted at the election were not registered on the books of the county clerk, and that it is unknown how many of them voted in favor of or against the bond issue; that out of the 128 persons, otherwise qualified to vote at the election but who had not paid their taxes, only 28 applied to vote and were denied the right; that it is unknown how many of the remaining persons, included in the 128, failed to apply to vote by reason of anticipation on their part that they would be denied the right to vote and that it is unknown how many of them would have voted in favor of or against the bond issue; that no elector qualified to vote was deprived of the right to do so by reason of having failed to register at the special registration; that the judges and clerks of election were instructed to permit, and did permit, any elector otherwise qualified to vote, who had failed to register at such registration, to be sworn in and to vote upon signing and swearing to the following affidavit: "I do solemnly swear that I am a citizen of the United States; that I am 21 years of age, and have resided in this state one year immediately preceding the approaching election; that I
have resided in the city of Helena for six months; that I am an actual resident of the ____ precinct of said city and I now reside at ____ street; that I have paid taxes upon property owned by and assessed to me on the assessment-roll of the City of Helena next preceding the election held ____." That this procedure was publicly known and was availed of by a number of electors, otherwise qualified but who had failed to register at the special registration; that no elector, otherwise qualified but who had failed to register at the special registration, declined to sign the affidavit because of its contents.
By way of separate defense, defendants allege that more than sixty days have elapsed since the passage of the ordinance authorizing the issuance and sale of the bonds and that the cause of action is barred by section 9040, Revised Codes 1921.
The plaintiff in his reply admits all of the facts alleged in the answer, but denies the conclusion that the cause of action is barred. The controversy is before us for final determination upon the foregoing conceded facts.
The first point of difference between the parties is whether[1-6] Chapter 98, Laws of 1923, as amended by Chapter 47, Laws of 1929, or sections 5009, 5278 and 5279, Revised Codes 1921, govern the procedure to be followed for the registration of electors and determine their qualifications in an election on a proposal such as here involved.
Section 5278 provides: "Whenever the council of any city or town, having a corporate existence in this state, or hereafter organized under the provisions of this title, shall deem it necessary to borrow money or contract indebtedness under its powers, as set forth in subdivision 64 of section 5039 of this code, or amendments thereto, the question of issuing bonds or contracting such indebtedness shall first be submitted to the qualified electors of such city or town in the manner hereinafter set forth; provided, that taxpayers only, as defined by section 544 of this code, shall be entitled to vote on questions concerning the construction, purchase, or securing of a water plant, water system, water supply, or sewerage system."
Subdivision 64 of section 5039, referred to in section 5278, in dealing with the powers of the city or town council, confers authority "to contract an indebtedness on behalf of a city or town * * * by borrowing money or issuing bonds for the * * * construction of * * * waterworks * * * provided, that no money must be borrowed on bonds issued for the construction, purchase or securing of a water plant, water system, water supply, or sewerage system, until the proposition has been submitted to the vote of the taxpayers affected thereby of the city or town, and the majority vote cast in favor thereof. * * *"
Section 544, referred to in section 5278, provides: "The payment of a tax upon property by any person assessed therefor on a county or city assessment-roll next preceding the election at which a question is to be submitted to the vote of the taxpayers of the state, or to the vote of the taxpayers of such county or city or any subdivision thereof, constitutes such person a taxpayer at such election."
Section 5279 provides for giving notice of the election and contains this clause: "The council may provide by ordinance for the registration of the taxpayers or qualified electors of such city or town, and no person shall be entitled to register or vote as [at?] such election who is not a taxpayer or qualified elector as hereinbefore set forth."
Also, section 5009 provides: "The council must provide by ordinance for the registration of electors in any city or town, and may prohibit any person from voting at any election unless he has been registered; but such ordinance must not be in conflict with the general law providing for the registration of electors, and must not change the qualifications of electors except as in this title provided."
It is conceded that the city conducted the election in question in substantial conformity with these statutory provisions and, if they have application, the election must be declared valid and the bonds upheld. But the plaintiff contends that the scheme of conducting such elections has been superseded
by the plan provided for by Chapter 98, Laws of 1923, and Chapter 47, Laws of 1929, which require the registration of electors to be conducted by the county clerk, and that, since these statutory provisions were ignored, the election cannot be upheld.
Prior to the passage of Chapter 98, this court had before it Chapter 74 of the Laws of 1913, in State ex rel. Kehoe v.Stromme, 49 Mont. 25, 139 P. 1002, 1003, and in speaking of it said: "Its obvious purpose is to provide a scheme for perpetual registration suitable to all elections under all conditions, and the amendments consist largely in making the various provisions applicable to special as well as to general elections." The statute there involved, corresponding to what is now section 566, Revised Codes 1921, expressly related to special as well as general elections.
The 1913 laws were amended by Chapter 122, Laws of 1915, and in the section corresponding to what is now section 566 no reference was made to special elections, but it was specifically provided by section 32 of Chapter 122, which is now section 582, Revised Codes 1921, that "the word `election' as used in this law where not otherwise qualified, shall be taken to apply to general, special, primary nominating, and municipal elections, and to elections in school districts of the first class." Thus the legislature clearly intended to adhere to its policy commented upon in State ex rel. Kehoe v. Stromme, supra. Further evidence of that fact is found, we think, in Chapter 98, Laws of 1923, and Chapter 47, Laws of 1929, which require the registration of electors to be conducted by the county clerk.
Section 1 of Chapter 98 provides: "That from and after the passage and approval of this Act, only such registered electors of the state, county, city, town, school district, or other municipal corporation, whose names appear upon the last preceding assessment-roll shall be entitled to vote upon any proposal to create or increase any indebtedness of state, county, city, town, school district or other municipal corporation, required by law to be submitted to a vote of the electors thereof."
Section 2 provides: "The county clerk shall, immediately after the closing of the registration books of his county preceding such election, as provided by law, prepare lists of the registered electors of the county, city, town, school district or other municipal corporation whose names appear upon the last preceding assessment-roll, and shall prepare poll-books therefor as provided by Section 568, Revised Codes of Montana of 1921, and furnish copies thereof to the city, town, school district or municipal corporation in which such election is to be held for which he shall receive compensation as provided in Section 571, Revised Codes of Montana of 1921. Whenever the election is upona proposal to create or increase the debt of the state or of acounty, the County Clerk shall post lists of such electors asprovided in Section 567, Revised Codes of Montana of 1921. When the election is upon a proposal to create or increase the indebtedness of a city, town, school district or other municipal corporation, the County Clerk shall deliver such lists to the clerk of the city, town, school district or other municipal corporation, holding such election, and it shall be his duty to post such lists in the manner provided in said Section 567.Provided, however, that nothing in this Act contained shallapply to or affect any such election called at the time of thepassage and approval hereof."
By Chapter 47, Laws of 1929, Chapter 98 was amended so as to eliminate the portions in italics. In legal effect, Chapter 47 simply continued in effect without change the provisions of Chapter 98 in so far as the latter has to do with cities, towns, school districts, and other municipal corporations. (Snidow v.Montana Home for the Aged, 88 Mont. 337, 292 P. 722.) Whether section 582 is sufficiently broad to require registration under section 566 for an election on a proposal such as we have before us need not now be determined. It is clear that Chapter 47 so requires.
Reduced to final analysis, the contention of the city is that the clause "required by law to be submitted to a vote of the electors thereof," appearing in section 1 of Chapter 47, relates
to proposals required to be submitted to all electors and that the purpose of the Act was to require such proposals to thereafter be submitted to registered taxpaying electors, and that it has no effect upon such proposals which by existing law were required to be submitted to taxpayers as distiguished from electors. If this were the correct meaning to be ascribed to the Chapter, then, so far as it relates to cities, towns, and school districts, it would be meaningless, for there could be no situation to which it could apply as to them. This for the reason that section 1253, Revised Codes 1921, which was already in effect at the time Chapter 98 was enacted, provided: "In all elections hereafter held for the issuance of bonds of any school district, town or city, only qualified registered electors who are taxpayers upon property therein, and whose names appear on the assessment-roll for the year next preceding such election, shall be entitled to vote thereat." If, as the city contends, Chapter 47 has to do only with proposals to create or increase an indebtedness requiring the approval of the electors, then as to cities, towns, and school districts it would be wholly inoperative because existing laws required the assent of the taxpayers, not electors. We cannot assume that the legislature by the enactment of Chapters 98 and 47 sought to do an idle thing. We think the evident purpose of the Act was to provide the procedure for all elections to increase or create the indebtedness of the political units therein mentioned whenever the laws required the approval of electors, as distinguished from the executive officers of the political subdivisions named.
What effect Chapter 98 may have had upon state or county bonds need not here be determined, but it is worthy of note that by Chapter 84, Laws of 1925, refunding bonds were required to have the approval of the electors of the county, while Chapter 99 of the Laws of 1925 required approval of the electors "qualified as provided in Chapter 98, Session Laws of 1923." Whether because of the uncertainty of the effect of these two statutes passed at the same session, or whether because of apprehension of the validity of Chapter 98 as applied
to the state and counties as intimated in State ex rel.Henderson v. Dawson County, 87 Mont. 122, 286 P. 125, it is apparent that county bonds were issued, in some cases at least, without reference to Chapter 98, Laws of 1923, for the legislature passed Chapter 56, Laws of 1927, and Chapter 153, Laws of 1929, for the purpose of validating county bonds which had been authorized by the electors, rather than the registered taxpayers "as required by Chapter 98 of the Laws of 1923," and then by Chapter 47, Laws of 1929, eliminated the state and counties from the operation of Chapter 98.
The city further contends that sections 5278 and 5279 are special statutes relating to water bond elections and as such are unaffected by Chapter 47. Reliance is had upon the general rule stated in 36 Cyc. 1092, that "an Act, special in its nature, and applying only to a particular class of elections, is not repealed by a general election law, unless an intent so to do is plainly manifested."
Conceding that sections 5278 and 5279 are special statutes, the rule above quoted has no application here, since Chapter 47, is not a general election law. It relates to special elections only. Sections 5278 and 5279 cover all proposals to borrow money or contract indebtedness for any of the purposes set forth in subdivision 64 of section 5039. The provisions of section 5279 authorizing the city to provide by ordinance for the registration of taxpayers, are not limited specially to water bond elections, but embrace every election required by subdivision 64 to be submitted to the taxpayers affected thereby. Chapter 47 covers the same matters. It relates to all proposals requiring the approval of qualified electors and repeals all Acts in conflict with it.
"When two statutes cover, in whole or in part, the same subject matter, and are not absolutely irreconcilable, no purpose of repeal being clearly shown, the court, if possible, will give effect to both. Where, however, a later Act covers the whole subject of the earlier Acts and embraces new provisions, and plainly shows that it was intended, not only as a substitute for
the earlier Acts, but to cover the whole subject then considered by the legislature, and to prescribe the only rules in respect thereto, it operates as a repeal of all former statutes relating to such subject matter, even if the former Acts are not in all respects repugnant to the new Act." (36 Cyc. 1077, 1078.)
If Chapter 47 should be held not to apply to water bond elections of the city and other elections provided for by subdivision 64, section 5039, then there are no elections of the city to which it can apply. Subdivision 64 enumerates the only matters that must be submitted to qualified electors relating to the subject of creating or increasing the indebtedness of a city.
We think it was the intention of the legislature that Chapter 47 should apply to all proposals to create or increase the indebtedness of a city where the approval of qualified electors is required and that it embraces water bond elections. To the extent that it conflicts with sections 5009, 5278 and 5279, the latter sections are repealed by implication. In so far as section 5279 provides for giving notice of such election we think it is unaffected by Chapter 47 and is still controlling.
By reference to sections 567, 568 and 571, in Chapter 47, these sections are to be considered incorporated in that Chapter (State ex rel. Hahn v. District Court, 83 Mont. 400,272 P. 525; Gustafson v. Hammond Irr. Dist., 87 Mont. 217,287 P. 640), and are controlling in an election on proposals to create or increase the indebtedness of a city.
The city contends that if Chapter 47 has application to an[7, 8] election on a proposal such as the one involved here, the election must still be upheld and the bonds declared valid. The argument of counsel for the city is that while Chapter 47 might have been held mandatory before election it must now, after election, be held to be directory merely. This distinction in a proper case has been recognized by this court in Potter v.Furnish, 46 Mont. 391, 128 P. 542, 543, in State ex rel.Hay v. Alderson, 49 Mont. 387, Ann. Cas. 1916B, 39, 142 P. 210, and other cases. In Potter v. Furnish the statute under consideration provided that for an election such as there involved,
the official register and check list used at the last preceding general election must be used and that no new registration need be made. The act was assailed as unconstitutional because it did not afford opportunity for those becoming eligible to vote since the close of registration for the last preceding election to register and participate in the special election. The court pointed out that the "record fails to disclose that, if there were such qualified electors denied the right to vote, the number was sufficient to change the result, even assuming that all such would have voted against some or all of the propositions submitted at this election." The court further said: "It is a rule of well-nigh uniform recognition that, after an election has been held, a party will not be permitted to challenge it unless he can show that a different result would have been reached but for the conditions of which he complains." It is this statement that counsel for the city relies upon in support of his contention that the bond issue should be upheld. But the difficulty that confronts us is to determine whether in fact an election has been held.
Under Chapter 47 it is made the duty of the county clerk, immediately after the closing of the registration books of his county preceding such election, as provided by law, to prepare lists of the registered electors of the city "whose names appear upon the last preceding assessment-roll." The only statute requiring the closing of the registration books by the county clerk is section 566. Obviously, by section 2 of the Chapter it was intended to adopt section 566, as the controlling statute governing registrations in the elections held under Chapter 47. In consequence, to carry out the duties prescribed by section 2 of Chapter 47 to be performed by the county clerk, it is necessary that resort be had to section 566. This requires that registration shall close for the full period of forty-five days before the election and requires the county clerk to publish and post notice of the closing of registration for thirty days before its closing. It clearly requires that proceedings looking to the
registration of voters for any election shall be initiated at least seventy-five days before the election.
If the legislature deems it necessary that seventy-five days shall elapse between the time of giving notice of the closing of registration and the date of the election, we have no right to interfere with its determination. It is worthy of note that by section 12 of Chapter 147, Laws of 1927, the notice of closing registration was shortened substantially as to school districts of the first class, but whether the provisions therein made have been repealed by implication by Chapter 47, Laws of 1929, may present a serious question. As applied to cities, there has been no effort to shorten the time that must elapse under section 566 between the giving of the notice of the closing of the registration books and the date of election. To aid the county clerk in the performance of the duty of preparing the lists of registered electors, the city council is required by section 547 to certify to the county clerk a description of the boundaries of the several wards of the city, and under section 549 shall deliver to him a map correctly showing the boundaries of the wards of the city.
By Chapter 47 the county clerk is required to prepare poll-books as provided in section 568 and furnish copies thereof to the city. It is made the duty of the city clerk to post the lists as provided in section 567. Under that section the lists must be posted not less than thirty days before election. This posting of the required list was admittedly not done in this election. In fact none of the requirements of the Chapter were observed.
Furthermore, from the context of Chapter 47 it is clear that all registered electors whose names appear upon the last preceding assessment-roll shall be entitled to vote, irrespective of whether they have actually paid their taxes. Since that Chapter repeals section 5278 by implication to the extent above noted, it also supersedes section 544 to which section 5278 makes reference, in so far as elections for the purposes specified in it are concerned. The city had no authority to require
payment of taxes as a condition to the right of an elector to vote when otherwise qualified under Chapter 47.
Can it be said that an election has been held when the controlling statute in all its particulars has been ignored? This is not a case where there has been a substantial compliance with statutory requirements, as was the case in State ex rel. Hay v.Alderson, 49 Mont. 387, Ann. Cas. 1916B, 39, 142 P. 210, andState ex rel. Patterson v. Lentz, 50 Mont. 322, 146 P. 932. We are not confronted with a situation where those conducting an election have departed from the strict letter of the law in some minor details, as in Harrington v. Crichton, 53 Mont. 388,164 P. 537; State ex rel. Nelson v. Timmons, 57 Mont. 602,189 P. 871; Thompson v. Chapin, 64 Mont. 376,209 P. 1060, and other cases. It is not a case presenting mere irregularities in the proceedings leading up to the election. The attack is not alone upon the ground that the registration was improper or defective, nor is it a contest between candidates both of whom affirm the election — one or the other of which propositions is illustrated in Parker v. Clatsop County,69 Or. 62, 138 P. 239, Wiley v. Reasoner, 69 Or. 103,138 P. 250, Huffaker v. Edgington, 30 Ida. 179, 163 P. 793,Potter v. Furnish, supra, and Reid v. Lincoln County,46 Mont. 31, 125 P. 429. Here, in addition to the failure to follow the law relating to registration, there was a failure to post the lists of registered electors as required by law, which contained the names of 2,512 persons, without considering others who might have registered had the required thirty days' notice been given as provided in section 566. Coupled with the failure to post the proper lists, there was an actual posting of a partial unauthorized list containing the names of 1,465 persons only, which could have no other effect than to direct attention to the 1,047 persons whose names did not appear on the posted lists, that they would not be permitted to vote and thus to give misleading information to the electors as to who would be permitted to vote at the election. In consequence, it presents a situation different from that involved in Soper v. County of Sibley, 46 Minn. 274, 48 N.W. 1112, which had to do with the failure to post any list.
The situation here is much like that presented to the court inState ex rel. Kehoe v. Stromme, 49 Mont. 25, 139 P. 1002, and while the court pointed out in that case that the objection was being raised before election, it does not follow that the same conclusion would not have been reached had the attack come after the pretended election. This case falls within the exception recognized in Goodell v. Judith Basin County,70 Mont. 222, 224 P. 1110, 1116, where the court adopted the following rule from Jones v. State, 153 Ind. 440,55 N.E. 229: "All provisions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose; but, after election, all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election, or that its omission shall render it void."
The attack here is upon the ground that the entire election was invalid because of the failure to make any attempt to comply with applicable statutes. Our election statutes particularly in so far as they require registration of electors, posting of the lists, and the like, were designed to insure purity of elections and as a protection against fraud. The legislature has determined that registration for an election to vote upon a proposal such as is involved here shall be conducted by the county clerk. It has determined that the list shall be posted not less than thirty days before the election. This was to afford an opportunity before election to challenge the right of an elector to register. (Sec. 573, Rev. Codes 1921.) For this court to now say that these statutory requirements need not be observed, or that they are merely directory, and that an election is as good and valid without compliance with any part of them, as by their observance, would be to defeat the will of the legislature.
As stated above, these requirements were made to safeguard against frauds and to afford facilities for the detection of illegal registration. This being so, can it be that the question of their observance is a matter of indifference and that an election conducted in entire disregard of the legislative requirements must, after election, be declared as valid to all intents and purposes as one which complied with the law? We think not. The fact that the city proceeded in good faith and in the belief that sections 5278 et seq. were controlling we think is of no importance. And the fact that no fraud was shown and that no proof had been adduced that a different result would have been obtained had the statute been complied with does not affect the question here considered. If these were the proper criteria by which to judge the validity of an election conducted in absolute disregard of applicable law, then it would be of no consequence what regulations the legislature might prescribe, so long as the complaining party was unable to make proof that the result achieved by the unauthorized method adopted would have been different if the law had been observed. We will not give sanction to such a rule.
The supreme court of North Carolina, in Smith v. City ofWilmington, 98 N.C. 343, 4 S.E. 489, declared an election ineffectual and void which was open to substantially the same infirmities which have been shown here.
We think the election in question cannot be sustained and that the attorney general properly withheld his approval of the bonds.
It remains to determine whether this action is barred by[9] section 9040. That section provides: "No action can be brought for the purpose of restraining the issuance and sale of bonds by any school district, county, city, or town in the state of Montana, or for the purpose of restraining the levy and collection of taxes for the payment of such bonds, after the expiration of sixty days from the date of the order authorizing the issuance and sale of such bonds, on account of any defect, irregularity, or informality in giving notice, or in holding the
election upon the question of such bond issue." This statute by its terms has to do with "defects," irregularities, and informalities, in giving notice and in holding the election. It was evidently intended to apply wherever there has been departure from the statutory method of holding an election, only in minor details constituting irregularities or informalities (seeFitzmaurice v. Willis, 20 N.D. 372, 127 N.W. 95), and has no application where there was no attempt to comply with the statutes. Thus, in City of Tampa v. Palmer, 89 Fla. 514,105 So. 115, it was held that the word "irregularity" is not synonymous with either the words "illegal" or "unlawful" and that it "contemplates only bona fide and unintentional mistakes on the part of ministerial or administrative officers in the performance of their duties and does not extend to or embrace instances where essential provisions of law have been violated or ignored." The action is not barred by section 9040.
The writ will issue as prayed for.
ASSOCIATE JUSTICES GALEN, FORD and MATTHEWS concur.