¶1On Petition for Rehearing, and to Modify Mandate.
¶2The first specification of remonstrance against the levy of the railroad aid tax in this case was that no notice of the election had been given. The demurrer admitted the truth of this averment, and the court could not go elsewhere to find it untrue. As there could be no legal imposition of the tax without notice to the people of the election to be held therefor, it must follow that the demurrer to the first specification of remonstrance should have been overruled.
¶3The second and third specifications of remonstrance were to the effect that the auditor had not delivered to the sheriff, and the sheriff had not posted the ten copies of the notice of election provided for in the statute. Counsel for appellee, however, insist that the notices required by the statute might have been delivered to some one else than the sheriff, and might have been duly posted by such other person, and hence that the people might have received the actual notice provided for in the statute, and that the failure to comply with the letter of the statute was, consequently, but an irregularity, and, as such, not sufficient to invalidate the election.
¶4*425In Beal v. Ray, 17 Ind. 554, it was held that a vacancy in office could not be filled at the time of a general election, when the vacancy had not occurred long enough before the election to permit the giving of the proper statutory notice. But if the vacancy had occurred long enough before the election to enable the election officers to give the required notice, then the failure to give the notice. would not invalidate the election, unless it should appear that such want of notice deprived voters of knowledge of the time and place of the election, so as to change the result. The simple failure of the official to do his duty in the giving of the notice could not, of itself, deprive the people of their .right to elect, when an election was provided for by law. State v. Jones, 19 Ind. 356, 81 Am. Dec. 356; City of Lafayette v. State, 69 Ind. 218. As said by Mr. Cooley, Const. Dim. 603, “Where, however, both the time and the place of an election are prescribed by law, every voter has a right to take notice of the law, and to deposit his ballot at the time and place appointed, notwithstanding the officer whose duty it was to give notice of the election has failed in that duty.”
¶5An important distinction, however, is to be observed between general and special elections. The time, place, and manner of holding the former being fixed by law, the electors may, and indeed must, take notice of them, and as to such elections, the statutory requirement of public notice may be regarded as directory only. But as to special elections it is otherwise. As to filling vacancies, for example, which occur not in the ordinary way, by expiration of the term, but by death, resignation, or removal from office, the statute as to notice “is mandatory, and an essential prerequisite to all such elections.” McCrary Elections (4th ed.), section 185. In a note to this section.
¶6*426citing State v. Tucker, 32 Mo. App. 620, it is said: “In special elections the notice called for by the law is absolutely essential to the .validity of the election.”
¶7In section 196 of his work, Mr. McCrary says that in an election by a municipal body, authorized for the purpose of determining a particular question, as the voting of aid to a railroad, where the statute points out no mode for conducting such election, the mode provided for conducting other elections by such municipal body should be followed. From this statement, the inference would arise that if the statute provide a particular mode of conducting the election, such mode should be followed.
¶8The rule seems to be that statutes providing the mode of proceeding by public officers are directory, and are not to be regarded as essential to the validity of the proceedings, unless there is something in the statute itself, or in its general scope and policy, which plainly shows a different intent. Sutherland Stat. Const., sections 451, 452; Endlich’s Inter. Stat., sections 431-440.
¶9For the validity of an election not provided for in a general statute, the giving of notice, as we have seen, is essential. But if such notice is given, if the people have been informed as to the fact, time, and place of the election, and have actually participated in it, then, the election cannot be held invalid, so far as notice is concerned, unless there is a clear intent manifest in the statute to make something relating to the manner of giving the notice essential to such validity. Of course if it were shown thát the failure to give the notice in the manner provided for in the statute had resulted in preventing such a number of electors from participating in the election as would have changed the result if they had voted, then the failure to give the notice as required by the statute would be fatal.
¶10*427In the light of the foregoing principles, we are, on reflection, inclined to think that the second and third specifications of remonstrance, while showing a failure of official duty on the part of the election officers, are yet insufficient to show the invalidity of the election. If the people of Pleasant township had such actual notice of the election as provided by the statute, the result of the election could not be changed by the circumstance that the notice was not given by the official appointed to that service by the statute. It would seem, then, that as to the manner of giving the notice, the statute is simply directory, the actual giving of the notice being the essential requirement.
¶11The petition for a rehearing is therefore overruled, but the mandate is so modified that the judgment is reversed, with instructions to overrule the demurrer to the first specification of the remonstrance, and for further proceedings.