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.1 But 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.2

But 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

1 The following, in addition to those cited, are some of the cases in this country in which statutes have been declared directory only: 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. 280; Corliss v. Corliss, Ibid. 390; People v. Allen, 6 Wend. 486; Marchant v. Langworthy, 6 Hill, 646; Ex parte Heath, 3 Hill, 43; 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. 143; People v. Runkel, 9 Johns. 147; Gale v. Mead, 2 Denio, 160; Doughty v. Hope, 3 Denio, 252; Elmendorf v. Mayor, &c. of New York, 25 Wend. 696; Thames Manufacturing Co. v. Lathrop, 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. Rowes, 9 La. An. 573; Edwards v. James, 13 Texas, 52; State v. Click, 2 Ala. 26; Savage v. Walshe, 26 Ala. 620; Webster v. French, 12 Ill. 302; McKim v. Weller, 11 Cal. 47. The list might easily be largely increased.

2 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 v. Georgia, 15 Vt. 72.

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 be measured the power. which can be exercised as well by the delegate as by the sovereign people themselves. If directions are given respecting the times or modes of proceeding in which a power should be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only; and we impute to the people a want of due appreciation of the purpose and proper province of such an instrument, when we infer that such directions are given to any other end. Especially when, as has been already said, it is but fair to presume that the people in their constitution have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, and with a view to leave as little as possible to implication.1

There are some cases, however, where the doctrine of directory statutes has been applied to constitutional provisions; but they are at variance with the weight of authority upon the precise points. considered, and we do not think, therefore, we should be warranted in saying that the judicial decisions as they now stand sanction the application. In delivering the opinion of the New York Court of Appeals in one case, Mr. Justice Willard had occasion to consider the constitutional provision, that on the final passage of a bill the question shall be taken by ayes and noes, which shall be duly entered upon the journals; and he expressed the opinion that it was only directory to the legislature.2 The remark was obiter dictum, as the court had already decided that the provision had been fully complied with; and those familiar with the reasons which have induced the insertion of this clause in our

1 Wolcott v. Wigdon, 7 Ind. 49; Per Bronson, J. in People v. Purdy, 2 Hill, 36; Greencastle Township v. Black, 5 Ind. 566; Opinions of Judges, 6 Shep. 458. See People v. Lawrence, 36 Barb. 177.

2

People v. Supervisors of Chenango, 8 N. Y. 328.

constitutions will not readily concede that its sole design was to establish a mere rule of order for legislative proceedings, which might be followed or not at discretion. Mr. Chief Justice Thur

man, of Ohio, in a case not calling for a discussion of the subject, has considered a statute whose validity was assailed on the ground that it was not passed in the mode prescribed by the Constitution. By the term mode," he says, "I do not mean to include the authority in which the law-making power resides, or the number of votes a bill must receive to become a law. That the power to make laws is vested in the Assembly alone, and that no act has any force that was not passed by the number of votes required by the Constitution, are nearly, or quite, self-evident propositions. These essentials relate to the authority by which, rather than the mode in which, laws are to be made. Now to secure the careful exercise of this power, and for other good reasons, the Constitution prescribes or recognizes certain things to be done in the enactment of laws, which things form a course or mode of legislative procedure. Thus we find, inter alia, the provision that every bill shall be fully and distinctly read on three different days, unless, in case of urgency, three fourths of the house in which it shall be pending shall dispense with this rule. This is an important provision without doubt, but, nevertheless, there is much reason for saying that it is merely directory in its character, and that its observance by the Assembly is secured by their sense of duty and official oaths, and not by any supervisory power of the courts. Any other construction, we incline to think, would lead to very absurd and alarming consequences. If it is in the power of every court (and if one has the power, every one has it) to inquire whether a bill that passed the Assembly was "fully" and "distinctly" read three times in each house, and to hold it invalid if, upon any reading, a word was accidentally omitted, or the reading was indistinct, it would obviously be impossible to know what is the statute law of the State. Now the requisition that bills shall be fully and distinctly read is just as imperative as that requiring them to be read three times; and as both relate to the mode of procedure merely, it would be difficult to find any sufficient reason why a violation of one of them would be less fatal to an act than a violation of the other." 1 A requirement that a law shall be read distinctly, whether man1 Miller v. State, 3 Ohio, N. S. 483.

datory or directory, is, from the very nature of the case, addressed to the judgment of the legislative body, whose decision as to what is or what is not a compliance cannot be subject to review. But in the absence of authority to the contrary, we should not have supposed that the requirement of three successive readings on different days stood upon the same footing. To this extent a definite and certain rule is capable of being, and has been, laid down, which can be literally obeyed; and the legislative body cannot suppose or adjudge it to have been done if the fact is otherwise. The requirement has an important purpose, in making legislators proceed in their action with caution and deliberation; and there cannot often be difficulty in ascertaining from the legislative records themselves if the constitution has been violated in this particular. There is, therefore, no inherent difficulty in the question being reached and passed upon by the courts in the ordinary mode, if it is decided that the constitution intends legislation shall be reached through the three readings, and not otherwise.

The opinion above quoted was recognized as law by the Supreme Court of Ohio in a case soon after decided. In that case the court proceed to say: “The . · · provision . . . . that no bill shall contain more than one subject, which shall be clearly expressed in its title, is also made a permanent rule in the introduction and passage of bills through the houses. The subject of the bill is required to be clearly expressed in the title for the purpose of advising members of its subject, when voting in cases in which the reading has been dispensed with by a two-thirds vote. The provision that a bill shall contain but one subject was to prevent combinations by which various and distinct matters of legislation should gain a support which they could not if presented separately. As a rule of proceeding in the General Assembly, it is manifestly an important one. But if it was intended to effect any practical object for the benefit of the people in the examination, construction, or operation of acts passed and published, we are unable to perceive it. The title of an act may indicate to the reader its subject, and under the rule each act would contain one subject. To suppose that for such a purpose the Constitutional Convention adopted the rule under consideration, would impute to them a most minute provision for a very imperfect heading of the chapters of laws and their subdivision. This pro1 See People v. Campbell, 3 Gilm. 466; McCulloch v. State, 11 Ind. 432.

vision being intended to operate upon bills in their progress through the General Assembly, it must be held to be directory only. It relates to bills, and not to acts. It would be most mischievous in practice to make the validity of every law depend upon the judgment of every judicial tribunal of the State, as to whether an act or a bill contained more than one subject, or whether this one subject was clearly expressed in the title of the act or bill. Such a question would be decided according to the mental precision and mental discipline of each justice of the peace and judge. No practical benefit could arise from such inquiries. We are therefore of opinion that in general the only safeguard against the violation of these rules of the houses is their regard for, and their oath to support, the constitution of the State. We say, in general, the only safeguard; for whether a manifestly gross and fraudulent violation of these rules might authorize the court to pronounce a law unconstitutional, it is unnecessary to determine. It is to be presumed no such case will ever occur." 1

If the prevailing doctrine of the courts were in accord with this decision, it might become important to consider whether the object of the clause in question, as here disclosed, was not of such a character as to make the provision mandatory even in a statute. But we shall not enter upon that subject here, as elsewhere we shall have occasion to refer to decisions in New York, Iowa, Indiana, New Jersey, Louisiana, Georgia, Kentucky, Minnesota, Michigan, Texas, and Maryland, which have recognized similar provisions as mandatory, and to be enforced by the courts. And we concur fully in what was said by Mr. Justice Emmot, in speaking of this very provision, that "it will be found upon full consideration to be difficult to treat any constitutional provision as merely directory and not imperative." 2 And with what is said by Mr. Justice Lumpkin, as to the duty of the courts: "It has been suggested that the prohibition in the seventeenth section of the first article of the constitution, Nor shall any law or ordinance pass containing any matter different from what is expressed in the title thereof,' is directory only to the legislative and executive or law-making departments of the government. But we do not so understand it. On the contrary, we consider it as much a

1 Pim v. Nicholson, 6 Ohio, N. S. 179. See also the case of Washington v. Murray, 4 Cal. 388, for similar views.