State Ex Rel. Ellis v. Brown , 326 Mo. 627 ( 1930 )

I am not in accord with the majority opinion holding that the statutory provisions here in question are directory.

It is a well established rule of construction that where a statute confers a privilege compliance with all the conditions prescribed for its acquisition is mandatory. [36 Cyc. 1160; 26 Am. Eng. Ency. Law 691; Endlich on Inter. of Statutes, sec. 434.] The majority opinion recognizes this rule, but holds it inapplicable on the ground that "no privilege is granted by the statute in question." This analysis is unsound. The statute in question (Sec. 30, Laws 1921, 2nd Ex. Sess., p. 30) does confer a privilege, indeed, the very one that the would-be registrant in this case is now seeking, to-wit, the privilege, accorded invalids and absentees qualified to register in certain circumstances and upon specified conditions, to be registered on certain days other than the days appointed for general registration. It follows that the conditions of the statute conferring the privilege are mandatory and must be complied with in order to acquire the privilege of such registration.

Denying the application of this rule, the majority opinion proceeds to interpret the provisions of this statute that persons desiring to exercise this privilege should file their applications within a certain time and appear in person before the election commissioners on one of the three days named in the statutes, to-wit, "on the Monday, Tuesday and Wednesday of the first week prior to said election, between the hours of nine A.M. and twelve A.M. and between two P.M. and ten P.M.," in order that they "may be further examined by the commissioners, under oath, and further testimony taken in favor of or against their applications," as "intended merely to promote the convenient and orderly dispatch of the public business." If that was the purpose it might well have been committed without direction to the wisdom of the Board of Election Commissioners, which body, as stated in the majority opinion "is required to maintain an office and keep it open during business hours of every day except Sundays and holidays." It seems obvious that these provisions were intended to serve a far more serious and important purpose, to-wit, that of securing honest registration in aid of honest elections. The efficacy to that end of a public record of qualified voters officially prepared under proper supervision reasonably in advance of election dates is apparent, and in fact conceded. The majority opinion reads: "Such record when made tends to prevent repeating, colonization and other fraudulent abuses of the franchise." It goes to the essence of the thing primarily sought, to-wit, honest registration, and the legislative details directly contributing thereto are necessarily mandatory. It is of no consequence that the act itself does not expressly say that they are mandatory, or state what the result will be if they are not complied with, if the effect of non-compliance obviously goes, as it does in this instance, to the essence of the thing sought to be effectuated.

The majority opinion cites Section 33 of the act governing appeals and holds that its failure to provide notice, time within which appeals shall be taken and like matters, indicates that the provisions of Section 30 here under consideration should be construed as directory. The fact that the appeal section is not as effectively drawn as it might be may well be a matter of future legislative concern, but it should not move us to ignore the obvious purpose of the act as a whole or refuse to declare the provisions of Section 30 mandatory.

For the reasons stated I respectfully dissent. Blair andFrank, JJ., concur.