Jones v. State ex rel. Atherby , 1 Kan. 273 ( 1863 )

By the Court,

Cobb, C. J.

These causes, submitted upon the same arguments and involving the same questions, will be considered together.

Section one of chapter twenty of the laws of 1861 provides for the holding of an election on the 2d day of Juno of that year, in the county of Coffey, for the permanent location of the seat of justice in that county, and that the place receiving a majority of all the votes cast shall be such seat of justice.

Section two of the same act provides that in case no place shall receive a majority of all the votes cast, a second election for such seat of justice shall be held on the Tuesday succeeding the first Monday in November following, at which said election the balloting shall be confined to the two places having the highest number of votes at the said first election.

Section three prescribes the manner of voting, and provides for the return of the poll-book and the number of votes each place received, to the clerk of such county withiu five days after the the election, and that the county commissioners shall canvass the votes, and the place having the majority of all the votes cast shall be proclaimed by them the permanent county seat of said county, either by written or printed proclamation, which shall be posted up in at least two places in each township.

Section four reads as follows :

“ That if upon the canvassing of said votes by the said commissioners they shall find that no place has received a majority of all the votes cast, it shall be their duty to proclaim the same, and also the time of the second election, as herein provided; and the canvass of the votes of the second election, and proclamation of the result shall be the same as at the first.”

Pursuant to these provisions the first election was held, and no place had a majority of all ■ the votes cast. But the commissioners failed to make proclamation of the result, and a second election was held at the time provided for in the law, at which election the town of Leroy received a majority of all the votes cast. And whether said last election is void for the want of such proclamation is the only question .presented in these causes.

The provision of section four of' the act referred to, requiring the commissioners to proclaim the result of the first, and the time for the second election, “as herein provided,” clearly refers to the proclamation mentioned in the third section, and requires the proclamation provided for in section four to be written or printed and posted up in at least two places in every township of the county.

But it is claimed by counsel that the provision of the law requiring such proclamation is merely directory to the commissioners, and their failure to comply with it does not, therefore, affect the validity of the election.

The question, what statutory provisions are to be regarded as directory-merely, has been the subject of much discussion, without establishing any rule of general application.

In the case of The People vs. Cook, (14 Barb., 259,) cited on the argument, justice Mason, delivering the opinion of the court, cites a large number of cases in which various statutory provisions have been held to be merely directory, and he lays down as a rule “ that statutes directing the mode of proceeding of public officers are directory, and are not to be regarded as essential to the validity of the proceedings of themselves, unless it be so declared in the statute.”

And in a subsequent part of the same opinion he again says : “And we have already seen by reference to the adjudications, that statutes directing the mode of proceeding of public officers are regarded as directory,, unless there is something in the statute itself which plainly shows, a different intent.”

The rule first mentioned appears to. us inaccurate. The words, “unless it be so declared in the statute,” seem to require an express declaration that the provision directing the manner is essential, however important and essential a just view of the policy of the statute may show such provisions to be.

The rule secondly stated contains probably all that the learned justice intended to say in the first, and as a general proposition, is doubless correct,. But the intent to make such provision essential may appear as well by the general scope and policy of the statute as by direct averment.

In other words, unless, a fair consideration of the statute shows that the legislature intended compliance with the provision in relation to the manner to be essential to the validity of the proceeding, it is to be regarded as directory merely.

In statutes of this class, as well as all others, the will of the legislature expressed in the statute is the law, and is to' -be ascertained by all legitimate methods of interpretation.

Is the provision for the proclamation, in section three of the act under consideration, upon these principles to he regarded as directory merely ?

This question is to be determined by the language and policy of the act. The law submits to the decision of the electors an important public question, affecting, not only the convenience of the people, but, to some extent, also, the value of a large portion of the property of the county.

The policy of the act was to get a full and fair vote of the electors upon that question ; and the provision for proclaiming the result of the first, and time of the second election, was well adapted, by giving full and timely notice to the people, to secure that result.

It was also an important and necessary provision. Without it the law provided no means for informing the people that any second election was to be held for the location of the seat of justice, and many of them might, and some of them probably would, know nothing of it. A largo share of the people have no access to the statutes, and necessarily know little of their contents, and might well be ignorant of the provision for a second election. Others, not being informed of the result of the first election, might suppose that the question was decided by the first vote, and therefore not appear at the second.

To obviate these difficulties, the legislature wisely provided for circulating the information by posting the proclamation in every town of the county. The provision was not only important, but the fact that the law imposed upon the. commissioners the trouble of writing or printing and posting in each town two copies of the proclamation, shows that the legislature regarded it as important; that they did not insert it as a mere matter of convenience, but to protect the rights of the people.

We are satisfied, therefore, that the legislature intended the making and posting of the proclamation to bo a prerequisite to the taking of the second vote, and that the act confers no authority to take the vote, without first making the proclamation.

A largo number of cases wore cited on the argument, in which statutory provisions have been held to be directory, but none of them that we have been able to see are in point in these causes, except, perhaps, Dishon vs. Smith, (10 Iowa, 212.)

The People of the State of New York vs. John J. Schemerhorn, (19 Barb., 540,) is an authority the other way. The court saying, “ statutory requisitions are deemed directory only when they rebate to some immaterial matter, where a compliance is a matter of convenience, rather than of sub-,, stanceand we think the weight of authority is not inconsistent with the opinion already expressed.

The judgment of the district court in the case of Jones vs. The State of Kansas must be affirmed, and the application for a peremptory mandamus in The State of Kansas vs. Fennimore et al. must be defied.