Tinkham v. Greer , 11 Kan. 299 ( 1873 )

The opinion of the court was delivered by

Brewer, J.:

Sec. 1, of ch. 105 of the General Statutes of 1868, authorizes the board of county commissioners upon certain conditions to make an order requiring all persons to keep their stock confined in the night-time. It provides that the commissioners “shall make such order under their hands, .and cause the same to be.entered upon the record of their proceedings.7 Is this satisfied by an .order subscribed as follows: “By order of- the Board of Commissioners, A. G. Miller, Chairman” — or do the words, “under their hands,” require the signatures of a majority at least of the board? ■Oviously the latter, if we follow the letter of the law. For the words, “under their hands,” have in the law a well-recognized meaning, a meaning which is satisfied only by personal .signatures. If the letter of the law requires this, is the provision merely directory, and may it be disregarded without invalidating the order? It is difficult to give any satisfactory rules for deciding whether statutory requirements are directory, or essential. Matters of time, where the act can be done as well after as at the time, are often considered directory. Matters of form, where the form in no ways affects the substance, are also sometimes, though not so often, declared directory. In all these latter cases it must be perfectly obvious that the substance is not in the least modified by the difference in form, or the form will always be held essential. For it must be understood, the court has no power to set aside or change the law as enacted by the legislature. All that we can do is, to ascertain and enforce its will. It follows therefore, that even when a change of form would not seem to affect the substance, yet if it appear that the form was made imperative by the legislature, it must be declared essential by the court. • The case at bar seems to come within this rule. The legislature has prescribed a form for this order. It is not easy to see any good reason why the order should not be made in the same manner as other orders of the commissioners ; yet the power of the legislature is unquestioned, and the fact that it has required an unusual form is evidence that it wished this form to be considered essential. Harding v. Owings, 1 Bibb, 214. The judgment of the district court is affirmed.

All the Justices concurring.