$475,000.00 for city water and waterworks purposes; and $125,000.00 for city sewer purposes. ........... in the Persons qualified to vote and residing within the following districts, to-wit, Nos...... Municipal Ward as the said districts existed at the time of the municipal election in 1907, will vote at ..... Polls will open at 7 o'clock a. m. and close at 7 o'clock p. m. The blanks, as shown above, were filled by giving the ward and the particular places in each district where the electors should cast their ballots. The propositions were submitted to the voters in the following form: "WATER BONDS. For the issue of bonds in the sum of $475,000.00 for city water and waterworks purposes." "SEWER BONDS. For the issue of bonds in the sum of $125,000.00 for city sewer purposes." These questions were so placed upon the dial of the voting machines used in Salt Lake City at all elections that each voter, by simply moving a pointer to the right or left, could vote "yes" or "no" according to his choice. At the election. 5,601 votes were cast upon the question for water supply, of which 3,030 were for, and 2,571 against, the issue of water bonds. Upon the second proposition there were 5,590 votes cast, 2,934 for, and 2,656 against, the sewer bonds. It will thus be seen that the proposition in favor of water bonds was carried by a majority of 459, while the sewer bonds. were carried by a majority of 278. The plaintiff contends that the bonds were not legally authorized, and therefore the defendant should be prohibited from issuing and disposing of them upon substantially the following grounds: (1) That a notice of the time and place of holding an election is an essential prerequisite to the holding of a valid election, and that no such notice was given in this instance; (2) because the ordinance authorizing and the original notice calling the election contained a statement that the "net revenue from said water system shall be set apart for and establish a sinking fund for the payment of said bonds," while the statute (section 310) expressly provides that the city council shall annually levy a sufficient tax to pay the interest and to provide a sinking fund for said purpose. The notice, as published, it is contended, was misleading, and misled the voters in the foregoing particulars, by reason of which the election is illegal and the bonds. not authorized. These are the only objections that are raised, and we will now proceed to consider them in the order in which we have stated them above. First, as to the sufficiency of the notice. Upon this question the courts are not in entire accord. There are a few decisions which hold that the statute providing for notice of an election must be strictly complied with, or the election held thereunder will be void. Other courts hold that such statutes are directory merely, and in case it is made to appear that the voters had actual notice of the election, or that they attended the polls and participated in the election in such numbers as important elections are usually attended by the voters, the election will be held valid, unless it be made to appear affirmatively that voters in sufficient. numbers remained away from the polls for want of a proper notice to change the result of the election. We think, however, that the weight of authority is to the effect that a notice of the time and place of the election ordinarily is essential, and that the statute prescribing a notice must be substantially complied with in order to hold a valid election. A discussion of the foregoing propositions will be found in the following cases: Packwood v. Kititas County, 15 Wash. 88, 45 Pac. 640, 33 L. R. A. 673, 55 Am. St. Rep. 875; Seymour v. Tacoma, 6 Wash. 429, 33 Pac. 1059; Williams v. Shoudy, 12 Wash. 362, 41 Pac. 169; Dishon v. Smith, 10 Iowa 212; City of Cheyenne v. State [Wyo.], 96 Pac. 244; Hamilton v. Village of Detroit, 83 Minn. 119, 85 N. W. 933; State v. Carroll, 17 R. I. 591, 24 Atl. 835. 35 Utah-3 In the last case cited, the Supreme Court of Rhode Island collates and reviews the authorities upon this question. It is there said that there is a difference in this regard between a general election where the time of holding it is fixed by statute, and a special election where the time is not so fixed, but is designated and is found only in the notice calling the election. This doctrine is certainly grounded on some good reason. Again, it is often said that the notice calling an election is for the sole purpose of apprising the voter that an election will be held, and the matters, in a general way, upon which he may express his choice, and if the voter is apprised of these things, and there is an attendance at and participation in the particular election by the voters generally, or in such proportion as is usual on important elections, then it devolves upon the party attacking the election to show that a merely defective notice actually affected the result of the election. This rule is based upon the theory that where the people have actually expressed themselves at the polls the courts are strongly inclined to uphold rather than to defeat the popular will. (1 Dillon, Mun. Cor., Section 117.) It is also frequently said that notice of the time and place of holding an election is of the substance, and a failure to comply with the law in that particular is not generally to be treated as a mere irregularity. (Cooley, Const. Lim. (7th Ed.), p. 930; 1 Dillon, Mun. Cor., Section 117.) We are rather impressed with the doctrine that, at least so far as concerns special 1, 2 elections, the notice is a matter of substance, and that unless there is a substantial compliance with the statute in this regard the election ordinarily cannot be held valid. Upon the question involved it should not be overlooked that the statutory notice performs a double function: (1) As giving constructive notice to the voter binding upon him whether he has actual notice or not; and (2) to impart actual notice to him so that he may participate in the election. In order, therefore, to be binding constructive notice, the statute should be complied with, to the extent, at least, that it may fairly and reasonably be said that the purpose thereof has been carried into effect. This sometimes may be done without a literal compliance with the statute. We are of the opinion that in this case there has been a substantial, if not a literal, compliance with the statute for the following reasons: It will be observed that section 309, supra, only requires that a "notice shall be given of such election. by publication in some newspaper or newspapers published in the city." This notice must be pub- 3 lished for four weeks prior to the election. This notice no doubt is jurisdictional; that is, without this notice, which constitutes an official call for the election, no election can legally be held. Nor can there be any doubt that this notice must state the time and the place where the election is to take place. This, it seems to us, is all that was contemplated to be stated in the notice provided for by section 309, supra. The particular place where the voter is to cast his ballot is not referred to, but the section does, in terms, provide that the election "shall be held, except as herein otherwise provided, as nearly as possible in conformity with the general election laws of the state." By referring to the laws governing general elections it will be observed that by section 783 general elections are called by the Governor's proclamation, which must be issued at least sixty days before a general and not less than ten days before a special election, and in which the time of the election and the of fices to be filled must be stated. This proclamation constitutes the official call for the election, and in case of a special election is the only method by which a legal election can be called and held. The election, however, does not fail, nor is it illegal, simply because the particular polling places at which the voters may express their will are not designated in the call for the election. This would be so in any case, we think, unless the statute specially provides therefor. There are other sections of the statute that provide how and when the particular polling places shall be designated and announced to the voters, and re 5 course must be had to these statutes for the purpose of determining these matters. By subdivision 2 of section 511, it is made the duty of the county commissioners to establish election districts, and by section 845 it is made their duty to designate the polling places in each district. Further, in section 792, it is provided that notices shall be posted in each election district "in at least five conspicuous places within the same, stating the time and place of election, and the hours during which the polls will remain open." These provisions apply to general elections. In section 890 it is, however, provided that for municipal elections the city council shall designate the voting places, and that all municipal elections shall be conducted in accordance with the general laws of the State, and that the notices shall be posted as provided in section 792. Sections 792 and 890 are the only ones which refer to how and when the notices which designate the polling places shall be posted. In this regard section 890, in effect, refers to section 792, inasmuch that by section 890 it is simply provided that notices shall be posted as required by the general election laws. It is clear, therefore, that if the question of issuing bonds had been submitted to the voters at the general election held on November 3, 1908, as it might have been under section. 309, supra, the county commissioners and not the city council would have designated the polling places in the several wards and polling districts of the city. In construing sections 792 and 890 together, it will be seen that, if the notices stating the polling places are posted in each of the voting districts for at least five days prior to an election, the law has been complied with. In none of the sections, and we know of no others that have been referred to, is the time fixed at which either the county commissioners or the city council shall designate the polling places, except by implication; that is, that such places must be designated at least more than five days before the election, since the notice in which the polling places are to be stated must be posted at least five days before the election. Section 890 requires that |