Constitution is arrived at, to give it such practical construction as will leave it optional with the department or officer to which it is addressed to obey it or not as he shall see fit. In respect to statutes it has long been settled that particular provisions may be regarded as directory merely; by which is meant that they are to be considered as giving directions which ought to be followed, but not as so limiting the power in respect to which the directions are given that it cannot effectually be exercised without observing them. The force of many of the decisions on this subject will be readily assented to by all; while others are sometimes thought to go to the extent of nullifying the intent of the legislature in essential particulars. It is not our purpose to examine the several cases critically, or to attempt - what we deem impossible to reconcile them all; but we shall content ourselves with quoting from a few, with a view, if practicable, to ascertaining some line of principle upon which they can be classified. There are cases where, whether a statute was to be regarded as merely directory or not, was made to depend upon the employing or failing to employ negative words plainly importing that the act should be done in a particular manner or time, and not otherwise. The use of such words is often conclusive of an intent to impose a limitation; but their absence is by no means equally conclusive that the statute was not designed to be mandatory.2 Lord Mansfield would have the question whether mandatory or not depend upon whether that which was directed to be done was or was not of the essence of the thing required. The Supreme Court of New York, in an opinion afterwards approved by the Court of Appeals, laid down the rule as one settled by authority, that "statutes directing the mode of proceeding by public officers are directory, and are not regarded as essential to the validity of the proceedings themselves, unless it be so declared in the statute." This rule strikes us as very general, and as likely to include within its scope, in many cases, things which are of the very essence of the proceeding. The questions in that case were questions of irregularity under election laws, not in any way hindering the complete expression of the will of the electors; and the court was doubtless right in holding that the election was not to be avoided for a failure in the officers appointed for its conduct to comply in all respects with the directions of the statute there in question. The same court in another case say: "Statutory 1 Slayton v. Hulings, 7 Ind. 144; King v. Inhabitants of St. Gregory, 2 Ad. & El. 99; King v. Inhabitants of Hipswell, 8 B. & C. 466. 2 District Township v. Dubuque, 7 Iowa, 262, 284. 3 Rex v. Locksdale, 1 Burr. 447. 4 People v. Cook, 14 Barb. 290; s. c. 8 N. Y. 67. requisitions are deemed directory only when they relate to some immaterial matter, where a compliance is a matter of convenience rather than of substance." 1 The Supreme Court of Michigan, in a case involving the validity of proceedings on the sale of land for taxes, laid down the rule that "what the law requires to be done for the protection of the taxpayer is mandatory, and cannot be regarded as directory merely."2 A similar rule has been recognized in a case in Illinois. Commissioners had been appointed to ascertain and assess the damage and recompense due to the owners of land which might be taken, on the real estate of the persons benefited by a certain local improvement, in proportion as nearly as might be to the benefits resulting to each. By the statute, when the assessment was completed, the commissioners were to sign and return the same to the city council within forty days of their appointment. This provision was not complied with, but return was made afterwards, and the question was raised as to its validity when thus made. In the opinion of the court, this question was to be decided by ascertaining whether any advantage would be lost, or right destroyed, or benefit sacrificed, either to the public or to any individual, by holding the provision directory. After remarking that they had held an assessment under the general revenue law, returned after the time appointed by law, as void, because the person assessed would lose the benefit of an appeal from the assessment,3 they say of the statute before the court: "There are no negative words used declaring that the functions of the commissioners shall cease after the expiration of the forty days, or that they shall not make 1 People v. Schermerhorn, 19 Barb. 540, 558. If a statute imposes a duty and gives the means of performing that duty, it must be held to be mandatory. Veazie v. China, 50 Me. 518. "It would not perhaps be easy to lay down any general rule as to when the provisions of a statute are merely directory, and when mandatory or imperative. Where the words are affirmative, and relate to the manner in which power or jurisdiction vested in a public officer or body is to be exercised, and not to the limits of the power or jurisdiction itself, they may, and often have been, construed to be directory; but negative words, which go to the power or jurisdiction itself, have never, that I am aware of, been brought within that category. 'A clause is directory,' says Taunton, J.,' when the provisions contain mere matter of discretion and no more; but not so when they are followed by words of positive prohibition.' Pearse v. Morrice, 2 Ad. & El. 96." Per Sharswood, J., in Bladen v. Philadelphia, 60 Pa. St. 464, 466. And see Pittsburg v. Coursin, 74 Pa. St. 400; Kennedy v. Sacramento, 19 Fed. Rep. 580. Under a stat ute providing that a court may appoint three commissioners to determine public rights, "may" is mandatory, and parties cannot agree that less than three shall act. Monmouth v. Leeds, 76 Me. 28. 2 Clark v. Crane, 5 Mich. 150, 154. See also Young v. Joslin, 13 R. I. 675; Shawnee County v. Carter. 2 Kan. 115. In Life Association ». Board of Assessors, 49 Mo. 512, it is held that a constitutional provision that "all property subject to taxation ought to be taxed in proportion to its value" is a prohibition against its being taxed in any other mode, and the word ought is mandatory. 8 Marsh v. Chesnut, 14 Ill. 223. their return after that time; nor have we been able to discover the least right, benefit, or advantage which the property owner could derive from having the return made within that time, and not after. No time is limited and made dependent on that time, within which the owner of the property may apply to have the assessment reviewed or corrected. The next section requires the clerk to give ten days' notice that the assessment has been returned, specifying the day when objections may be made to the assessment before the common council by parties interested, which hearing may be adjourned from day to day; and the common council is empowered in its discretion to confirm or annul the assessment altogether, or to refer it back to the same commissioners, or to others to be by them appointed. As the property owner has the same time and opportunity to prepare himself to object to the assessment and have it corrected, whether the return be made before or after the expiration of the forty days, the case differs from that of Chesnut v. Marsh,' at the very point on which that case turned. Nor is there any other portion of the chapter which we have discovered, bringing it within the principle of that case, which is the well-recognized rule in all the books." 2 The rule is nowhere more clearly stated than by Chief Justice Shaw, in Torrey v. Milbury, which was also a tax case. "In considering the various statutes regulating the assessment of taxes, and the measures preliminary thereto, it is not always easy to distinguish which are conditions precedent to the legality and validity of the tax, and which are directory merely, and do not constitute conditions. One rule is very plain and well settled, that all those measures that are intended for the security of the citizen, for ensuring equality of taxation, and to enable every one to know with reasonable certainty for what polls and for what real and personal estate he is taxed, and for what all those 1 14 Ill. 223. 2 Wheeler v. Chicago, 24 Ill. 105, 108. 8 21 Pick. 64, 67. We commend in the same connection the views of Lewis, Ch. J., in Corbett v. Bradley, 7 Nev. 108: "When any requirement of a statute is held to be directory, and therefore not material to be followed, it is upon the assumption that the legislature itself so considered it, and did not make the right conferred dependent upon a compliance with the form prescribed for securing it. It is upon this principle that the courts often hold the time designated in a statute, where a thing is to be done, to be directory. No court certainly has the right to hold any requirement of a law unnecessary to be complied with, unless it be manifest the legislature did not intend to impose the consequence which would naturally follow from a non-compliance, or which would result from holding the requirement mandatory or indispensable. If it be clear that no penalty was intended to be imposed for a non-compli ance, then, as a matter of course, it is but carrying out the will of the legisla ture to declare the statute in that respect to be simply directory. But if there be anything to indicate the contrary, a full compliance with it must be enforced." See also Hurford v. Omaha, 4 Neb. 336. who are liable with him are taxed, are conditions precedent; and if they are not observed, he is not legally taxed; and he may resist it in any of the modes authorized by law for contesting the validity of the tax. But many regulations are made by statutes designed for the information of assessors and officers, and intended to promote method, system, and uniformity in the modes of proceeding, a compliance or non-compliance with which does in no respect affect the rights of taxpaying citizens. These may be considered directory; officers may be liable to legal animadversion, perhaps to punishment, for not observing them; but yet their observance is not a condition precedent to the validity of the tax." We shall quote further only from a single other case upon this point. The Supreme Court of Wisconsin, in considering the validity of a statute not published within the time required by law, "understand the doctrine concerning directory statutes to be this: that where there is no substantial reason why the thing to be done might not as well be done after the time prescribed as before, no presumption that by allowing it to be so done it may work an injury or wrong, nothing in the act itself, or in other acts relating to the same subject-matter, indicating that the legislature did not intend that it should rather be done after the time prescribed than not to be done at all, there the courts assume that the intent was, that if not done within the time prescribed it might be done afterwards. But when any of these reasons intervene, then the limit is established." 1 These cases perhaps sufficiently indicate the rules, so far as any of general application can be declared, which are to be made use of in determining whether the provisions of a statute are mandatory or directory. Those directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly, and prompt conduct of the business, and by a failure to obey which the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory; and if the act is performed, but not in the time or in the precise mode indicated, it may still be sufficient, if that which is done accomplishes the substantial purpose of the statute.2 But 1 State v. Lean, 9 Wis. 279, 292. See further, for the views of this court on the subject here discussed, Wendel v. Durbin, 26 Wis. 390. The general doctrine of the cases above quoted is approved and followed in French v. Edwards, 13 Wall. 506. In Low v. Dunham, 61 Me. 566, a statute is said to be mandatory where public interests or rights are concerned, and the public or third persons have a claim de jure that the power shall be exercised. And see Wiley v. Flournoy, 30 Ark. 609; State Auditor v. Jackson Co., 65 Ala. 142. 2 The following, in addition to those cited, are some of the cases in this country in which statutes have been declared directory only: Odiorne v. Rand, 59 N. H this rule presupposes that no negative words are employed in the statute which expressly or by necessary implication forbid the doing of the act at any other time or in any other manner than as directed. Even as thus laid down and restricted, the doctrine is one to be applied with much circumspection; for it is not to be denied that the courts have sometimes, in their anxiety to sustain the proceedings of careless or incompetent officers, gone very far in substituting a judicial view of what was essential for that declared by the legislature.1 But the courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provisions of a constitution. Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essential to the thing to be done; and they must then be regarded in the light of limitations upon the power to be exercised. It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims, and fix those unvarying rules by which all departments of the government must at all times shape their conduct; and if it descends to prescribing mere rules of order in unessential matters, it is lowering the proper dignity of such an instrument, and usurping the proper province of ordinary legislation. We are not therefore to expect to find in a constitution provisions which the people, in adopting it, have not regarded as of high importance, and worthy to be embraced in an instrument which, for a time at least, is to control alike the government and the governed, and to form a standard by which is to 504; Pond v. Negus, 3 Mass. 230; Williams v. School District, 21 Pick. 75; City of Lowell v. Hadley, 8 Met. 180; Holland v. Osgood, 8 Vt. 276; Corliss v. Corliss, 8 Vt. 373; People v. Allen, 6 Wend. 486; Marchant v. Langworthy, 6 Hill, 646; Ex parte Heath, 3 Hill, 42; People v. Holley, 12 Wend. 481; Jackson v. Young, 5 Cow. 269; Striker v. Kelley, 7 Hill, 9; People v. Peck, 11 Wend. 604; Matter of Mohawk and Hudson Railroad Co., 19 Wend. 135; People v. Runkel, 9 Johns. 147; Gale v. Mead, 2 Denio, 160; Doughty v. Hope, 3 Denio, 249; Elmendorf v. Mayor, &c. of New York, 25 Wend. 692; Thames Manufacturing Co. v. Lath rop, 7 Conn. 550; Colt v. Eves, 12 Conn. 243; People v. Doe, 1 Mich. 451; Parks v. Goodwin, 1 Doug. (Mich.) 56; Hickey v. Hinsdale, 8 Mich. 267; People v. Hartwell, 12 Mich. 508; State v. McGinley, 4 Ind. 7; Stayton v. Hulings, 7 Ind. 144; New Orleans v. St. Romes, 9 La. An. 573; 1 See upon this subject the remarks of Mr. Sedgwick in his work on Statutory and Constitutional Law, p. 375, and those of Hubbard, J., in Briggs r. Georgia, 15 Vt. 61. Also see Dryfus v. Dridges, 45 Miss. 247. |