formed, or the language used by the Legislature, shows that the designation of the time was intended as a limitation of the power of the officer." * In Massachusetts, where a statute required the assessors to assess a tax within thirty days after the vote of the tax being certified to them, it was held that the naming the time for the assessment was to be considered as directory to the assessors, and not as a limitation of their authority. So in New York, where a school tax was voted at a meeting of which no notice was given as required by statute, and afterwards levied, the act was held to be directory merely, and the tax to be well laid. A statute requiring a tax to be assessed, and the taxlist therefor to be made out by the trustees, and a proper warrant attached thereto within thirty days after the district meeting in which the tax shall have been voted, is merely directory as to time. It being for the benefit of the public, those acts may be done after the time specified in the statute has elapsed.]] It may perhaps be doubted whether these cases do not conflict with the wholesome strictness required, as we have seen, in summary administrative proceedings. So again, where a city ordinance required a superintendent of streets to keep an account of the expenses done under an assessment, and to report the same in ten days, the provision was held to be merely directory, and not a condition precedent to the making of a valid assessment. provide that every The Revised Statutes of New York ** provide that person elected to the office of sheriff shall within twenty days after he shall receive notice of his election, execute a bond, &c., to the people of the State. This provision also has been held to be a direction, and not a limitation.++ In another recent case in the same State, it was said that statutory requisitions are The People v. Allen, 6 Wendell, 487, 488, per Marcy, J. The act regulating sales of real property on an execution, makes it the duty of sheriffs to file a certificate of sale in the clerk's office in ten days after the sale takes place; but this omission does not affect the validity of the sale. Jackson ex dem. Hooker v. Young, 5 Cowen, 269. See The People v. Kunkle, 9 J. R. 147, and The People v. Peck, 11 Wend. 604, for cases where church elections have been held good though statu deemed directory only when they relate to some immaterial matter, where a compliance is a matter of convenience rather than of substance.* Indeed, the rule has been carried so far as to hold, where a statute directed the vote of the common council of the city of New York to be taken by ayes and nays, that this provision is merely directory. And, again, it has been decided that the provision of a statute requiring inspectors of corporate elections to take an oath, is only directory. The rule has also been applied to popular elections; and an election has been held valid, though the inspectors were sworn not on the Bible but on some other book, though they kept open the polls after the time fixed by law, and committed other minor irregularities,on the ground, that in all these respects the enactments of the statute were directory; that provision was made for the punishment of the officers for wilful or corrupt conduct; that no actual evidence of fraud was adduced, nor any proof that the irregularity complained of had produced an improper result. I think it may well be doubted whether in the desire to sustain proceedings against which no bad faith has been al eged, a proper regard for form and regularity has not been lost sight of. It is extremely difficult in these cases to prove actual fraud; the very object of forms of proceeding is to secure regularity and fair dealing, and the recognition of the doctrine that explicit provisions of statutes can be disregarded with entire impunity as to the result of the particular proceeding, is likely to lead to unbounded negligence and indifference on the part of public officers, who have, as a general rule, little to fear from criminal proceedings directed against themselves personally. The general principle, that statutory provisions may in certain cases be treated as purely directory, has been recognized in all the States. In regard to capital trials for murder in Michigan, a statute requiring a circuit judge to assign a day for the trial, has been held clearly directory, so far as time is con *The People v. Schermerhorn, 19 Barb. 540. Striker v. Kelly, 7 Hill, 9. In the Matter of the Mohawk and Hudson R. R. Co. 19 Wend. 143. | People v. Cook, 14 Barbour, 259; s. C. 4 Seld. 88, 89, 93. cerned.* So in Indiana, an act authorizing the governor of the State to appoint arbitrators, in regard to a railroad, "two of whom shall be men of legal attainments," was held from its vagueness to be merely directory, and that his action in the premises could not be reviewed, although no two of the arbitrators appointed by him had the prescribed qualifications.† So, too, in Louisiana, it has been held that a provision in an act providing for the subscription by municipal corporations, to the stock of companies undertaking works of internal improvement, requiring that the commissioners of election should be furnished with a properly certified list of the authorized voters, is directory merely. In Connecticut, it has been said. that, when a duty is required by statute to be performed on a certain day, and the object contemplated by the Legislature cannot otherwise be carried into effect, the time prescribed must be considered imperative; but if there is nothing indicating that the exact time is essential, it is to be considered as directory. So, where a city charter required that a certain number of jurors should be chosen on the first Monday of July, and they were not chosen till the first of August, it was said that the provision was directory, and the jury was held to be legal. In Alabama, a clause in an act for the final settlement. of the affairs of a bank, requiring the trustees to sell the remaining property, "within thirty days from the first Monday in November," has been held not to be mandatory, but directory merely; and that a sale made after the expiration of the time specified was good, on the ground that the act contained merely affirmative, and not negative words. T I may here notice that this same principle has been applied The People v. John Doe, 1 Michigan, 452, 453. The State v. McGinley, 4 Indiana Reports, p. 7. City of New Orleans v. St. Rowes, 9 La. Ann. R. 573. Vide the dissenting opinion of Buchanan, J. Colt v. Eves, 12 Conn. 243. A statute in Texas provided that certain lands theretofore located, should be surveyed within twelve months, or the location should be null and void. The locator applied to the surveyor to survey, and the surveyor refused. A mandamus was applied for within the twelve months to compel the surveyor to survey, and obtained; but the survey was not completed within the twelve months. It was held, nevertheless, that the survey was valid, on the ground that it was not intended to compel a party to do an act wholly out of his power. Edwards v. James, 13 Texas, 52. Savage et al. v. Walsh et al. 26 Ala. 620. For other cases see Ex parte Heath and others, 3 Hill, 42; People v. Holley, 12 Wend. 481; Jackson v. Young, 5 Cowen, 269; Holland et al. v. Osgood, 8 Verm. 276, and Corliss v. Corliss, Ibid. 373. to the construction of Constitutions. The Constitution of New York provides, in regard to all laws, "that the question upon the final passage shall be taken immediately upon the last reading, and the yeas and nays entered in the journal." (Cons. art. iii, § 15.) It has been held, in regard to this provision, with what, I say it in all deference, appears to me an extreme laxness, that it is merely directory, and that the disregard of it would have no effect upon the law.* It seems to me difficult to deny that the practice of sanc tioning the evasion or disregard of statutes, which we have had occasion to notice in the cases thus examined, has been carried beyond the line of sound discretion. This idea has been repeatedly expressed. "I am not very well satisfied with the summary mode of getting rid of a statutory provision, by calling it directory," says Hubbard, J., in the Supreme Court of Vermont. "If one positive requirement and provision of a statute may be avoided in that way, I see no reason why another may not." But it is not to be denied that the practical inconveniences likely to result from insisting with literal severity on strict compliance with all the minute details which modern statutes contain, create a pressure on the judiciary very difficult to be resisted by sagacious and practical men who desire to free the law from the reproach of harshness or absurdity. If it should be thought, on a review of these cases, that the judiciary have, in regard to the construction of statutes as directory, really infringed on the province of the Legislature, the only practical remedy for it appears to be a more careful preparation of the statutes, and an habitual insertion of the precise consequence which the lawmaker intends to follow from the disregard of his directions. "Perhaps," says Lord Denman, in a case of this kind, "this discussion may incline the Legislature to say, on future occasions, in what respect they mean any particular provisions to be void which they declare to be so in general terms, and what consequences they intend should result from this invalidity. In the absence of this, we have great difficulty in all such cases." t *The People against the Supervisors of Chenango, 4 Seld. 317. See also Lehman v. McBride, 15 Ohio, N. S. 573. Briggs v. Georgia, 15 Verm. 61, 72. Reg. v. Inhabs. of Fordham, 11 A. & E. 88. When a statute prescribes how it shall be We approach the end of a path which the careful reader must have long since perceived to be beset with difficulties, contradictions, and perplexities. In the cases that we have examined in this chapter, we find that sometimes laws are construed strictly, and sometimes liberally, sometimes liberally for one purpose, or in one aspect, and strictly in another,-sometimes exceptions are inserted to obviate suggestions of hardship or inconvenience, and sometimes the courts refuse to make such qualifications,-sometimes statutes are interpreted with strict and literal severity, and sometimes obedience to their mandates is declared to be a matter of entire indifference. It is obvious. that in this state of things it is impossible to arrive at any rules of interpretation other than those which are derived from a classification such as we have attempted to make. It is equally obvious, however, that serious evils are sure to result from a latitude of construction so considerable as we find to exist; and I, therefore, attempt, with great deference for the able and learned magistrates who are practically engaged in the administration of justice, to frame the following rules as those which ought to govern in this department of our science. The intention of the Legislature should control absolutely the action of the judiciary; where that intention is clearly ascertained, the courts have no other duty to perform than to execute the legislative will, without any regard to their own views as to the wisdom or justice of the particular enactment.* (a) The means of ascertaining that intention are to be found in the statute itself, taken as a whole and with all its parts,-in statutes on the same subject, antecedent jurisprudence and legislation, contemporaneous and more recent exposition, judi construed, the courts are bound by such provision. Smith v. State, 28 Ind. 321. No principle is more firmly established, or rests on more secure foundations, than the rule which declares, when a law is plain and unambiguous, whether it be expressed in general or limited terms, that the Legislature shall be intended to mean what they have plainly expressed, and consequently no room is left for construction; (a) As to where a discretion is vested in officers not to be reviewed by the court, see Hargreaves v. Smith, 3 B. & S. 611. |