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clause is directory, when the provisions contain mere matter of direction and nothing more; but not so, where they are followed by such words as are used here, viz: that anything done contrary to such provisions shall be null and void to all intents. These words give a direct, positive, and absolute prohibition. If they are not obligatory, I cannot conceive to myself, any words which can have a prohibitory force." a "

a 2 A. & E. 94.

NOTE 29. The provisions of a law which are merely directory, are not to be con strued into conditions precedent. Whitney v. Emmott, 1 Bald. 303. When the terms of a statute leave room for any administrative discretion to be exercised, it cannot be interpreted to be mandatory, or to be a condition precedent. But in a case where the salary of an officer is fixed by statute, which declares it to be a county charge, and that the supervisors shall audit and allow it as it becomes due, the statute is imperative, and the supervisors have no discretion. Morris v. The People, 3 Denio 381. A statute directing the mode of proceeding by public officers, is to be deemed directory, and a precise compliance is not to be deemed essential to the validity of the proceedings, unless so declared by statute. People v. Cook, 8 N. Y. 67. So too, the provisions of a law fixing the time for intermediate steps, after jurisdiction has been once acquired, are to be deemed directory, and a disregard of them does not avoid the proceedings. U. S. Trust Co. v. U. S. Fire Ins. Co., 18 N. Y. 199. Generally, the rule is, when a statute specifies the time within which a public officer is to perform an act regarding the rights and duties of others, it will be considered as directory merely, unless the nature of the act to be performed, or the language of the statute shows that the designation of time was intended as a limitation of power. People v. Allen, 6 Wend. 487; Jackson v. Young, 5 Cow. 269.

The statute which requires the officer before whom proceedings are had against an absconding, concealed, or non-resident debtor to make and file his report within twenty days after the appointment of trustees, and the latter to cause their appointment within thirty days, (2 R. S. 12, §§ 61, 68), is directory merely, and the omission to comply with these requirements within the prescribed time, will not vitiate the proceedings, or invalidate a conveyance of property made by the trustees. Wood v. Chapin, 13 N. Y. 509.

The provision in the statute limiting the time for a referee to make his report, &c., is merely directory. An extension of the period beyond a year, does not work a discontinuance of the proceedings. Matter of Empire City Bank, 18 N. Y. 200.

The statute (2 R. S. 369, § 38), which requires the sale of land under execution, where it consists of known lots or parcels, to be made separately and not in gross, is directory, and though a sale made in gross is voidable at the instance of the party aggrieved, it is not void. Cunningham v. Cassidy, 17 N. Y. 276.

A surrogate is required by 1 R. S. 447, § 10, on granting letters of administration, to take from the applicant a bond with two or more sureties; yet the omis sion to do so is not jurisdictional, and can he amended. Bloom v. Burdich, 1 Hill. 130.

The stat. 5 Eliz. c. 4, requires the binding of an apprentice to be for seven years; and the 41st clause avoids all indentures made otherwise than according to that law; yet it is established by decisions, that indentures for a less time are voidable only, as between the parties. a In the case before cited of Pearse v. Morrice, Lord Denman said: "It is extraordinary that there should be cases in

a R. v. St. Nicholas, in Ipswich, 1Burr. S. C. 91.

Where, by a statute, deeds executed by commissioner of loans are required to be subscribed by two witnesses, and but one witness subscribed as such, but the deed was duly acknowledged, it was held good. Hatch v. Benton, 6 Barb. 37.

A provision of the statute (Code. § 289), that an execution against a married woman, shall direct the levy and collection of the amount against her from her separate property, and not otherwise, is directory merely. Thompson v. Sergeant, 15 Abbott. 452. And in general, where a statute requires an official act to be done by a given day, for a public purpose, it shall be construed as merely directory in regard to the time. Ex parte Heath, 3 Hill. 42.

The provision of the Code which requires a judge by whom a cause is tried without a jury, to file his decision, in writing within twenty days after the trial, is simply directory. Stewart v. Slater, 6 Duer. 84.

The provision of the city charter of New York, that every person appointed to office under the city government shall take the oath of office before the mayor, has been held to be merely directory; if it cannot be so taken, it may be administered by some other officer. Caniff v. The Mayor, &c., 4 E. D. Smith, 430.

A statute requiring the court to limit the time of the sentence of a convict, so that his imprisonment in the state prison shall expire between May and November, is merely directory; and a failure to comply with such requirement does not render the sentence void. Miller v. Finkle, 1 Parker Crim. R. 374.

This class of cases must not be confounded with those where a power or franchise has been created by statute which fixes or prescribes the mode of its exercise. In such cases, the power must be exercised in the mode pointed out in the act, and in no other, and those upon whom it is conferred, are confined strictly to the act creating it. Head v. Armory, The Providence Ins. Co., 2 Cranch. 127. In such cases, the act is the enabling statute; it creates all the power that is possessed, and all who act under it, must clothe their proceedings with all the solemnities prescribed by the power which the act demands. When a statute directs a person to do a thing in a certain time, without any negative words restraining him from doing it afterwards, the naming of the time will be considered as directory to him, and not a limitation of his authority. Pond v. Negus, 3 Mass. 232; People v. Peck, 11 Wend. 604; Ex parte Heath, &c., 3 Hill. 42; People v. Holley, 12 Wend. 486; Gale v. Mead, 2 Denio 232; The People v. Allen, 6 Wend. 486; People v. Dawson, 25 N. Y. 399; The People v. Cook, 14 Barb. 290, 2; Barnes v. Badger, 41 Barb. 98, 9.

A statute however, which declares "it shall be the duty of the supervisors, &c., to raise a certain sum of money by tax for the county buildings," is mandatory, and the courts can compel them to execute it. Caswell v. Allen, 7 John. 63. The words shall or may, when used in a statute, are imperative only when the

which it has been held, that the words 'null and void,' should not have their usual meaning; but the word 'void' has certainly been construed as 'voidable' where the proviso was introduced in favor of the party who did not wish to avoid the instrument, &c." ("Volenti non fit injuria.) Per Patteson, J., "In R. v. Hipswell and R. v. Gravesend, the court has refused to carry that mode of construction further, and has given the words 'null and void,' their public interests or rights are concerned. Malcolm v. Rodgers, 5 Cow. 188. And the rule is general, that where a duty is imposed upon officers by statute, whether by words, which are peremptory in themselves, or merely permissive, they have no discretion to refuse its performance as against a party having an absolute interest in it. Martin v. Mayor, &c., 1 Hill. 545.

And in all cases, in the courts, and especially in courts of inferior jurisdiction, where the authority to procced is conferred by statute, and where the manner of obtaining jurisdiction is prescribed by the statute; and in all cases where one may be divested of his estate by a proceeding under statute authority, the mode of proceeding directed, is mandatory, and must be strictly complied with, or the proceeding will be utterly void. Corwin v. Merritt, 3 Barb. 341; Harrington v. The People, 6 Barb. 607; The People v. Common Council of Brooklyn, 22 Barb. 405; Bloom v. Burdick, 1 Hill, 130; People v. Schermerhorn, 19 Barb. 541; Ex parte Common Council of Albany, 3 Cow. 358; Barnard v. Vich, 21 Wend. 89; Brisbane v. Peabody, 3 How. Pr. R. 109; Rodgers v. Murray, 3 Paige 390; Atkins v. Kinnan, 20 Wend. 249; Sherwood v. Reade, Hill. 431; Sharp v. Spier, 4 Hill. 76; Morse v. Williamson, 35 Barb. 472; Sherman v. Dodge, 6 John. Ch. 107; Denning v. Smith, 3 id. 331; Cohoes Co. v. Goss, 13 Barb. 138; Hubbell v. Weldon, Lalor 139. The true distinction is this: where the provision of the statute is the essence of the thing required to be done, and by which jurisdiction to do it is obtained, it is mandatory; otherwise when it relates to form and manner, and where an act is incident, or after jurisdiction has been obtained, it is directory. Marshall v. Langworthy, 6 Hill. 646; Striker v. Kelly, 7 Hill. 9.

There is a class of cases which hold, that whether a statute is to be regarded as directory or not, is made to depend upon the employment, or failing to employ negative words which import that an act shall be done in a particular manner or time, and not otherwise. Slayton v. Hulings, 7 Ind. 144; King v. Inhabitants of St. Gregory, 2 Ad. & El. 99. This rule does not appear to be universal. The use of negative words, is very often conclusive of an intent to impose a limitation, but their absence is by no means equally conclusive that the statute was not destined to be mandatory; this was held in District Township v. Dubuque, 7 Iowa 284. Lord Mansfield's rule is doubtless a better one, that whether the statute was mandatory or not, depended upon whether the thing directed to be Jone was the essence of the thing required. Rex v. Locksdale, 1 Burr. 447. This is doubtless the general New York rule, as to the duties of public officers. A statute directing the mode of proceeding, is directory, and not to be regarded as essential to the validity of the proceedings themselves, unless it be so declared in the statute. People v. Cook, 14 Barb. 290, S. C. 8 N. Y. 67. In other cases they are directory, when they relate to some immaterial matter where a compliance is


full effect." Per Williams, J., "No instance of that construction of 'void' as voidable, has been given except in settlement cases:" (sed quare); "and in these, I do not know why the obtaining of a settlement should not have been held to be an intent and purpose' within the meaning of the enactments then in question." See Governors of Bristol Poor v. Wait. a And in Reg. v. The Inhabitants of Fordham, b Coleridge, J., said, "I decline putting any construction upon the words 'of no force and validity. Words as stringent as these, have been modified in many of the old cases; but I should be sorry to extend that mode of interpretation. But where the effect may be grammatically confined to the clause immediately preceding, and there is as good reason (so far as the language is concerned), for one interpretation as the other, one may fairly look at the consequences of each interpretation, in order to determine

a 1 A. & E. 164.

b 11 A. & B. 88.

matter of convenience rather than substance. People v. Schermerhorn, 19 Barb. 558. But when a power to affect property is conferred by statute upon those who have no personal interest in it, such power can be exercised only in the manner and under the circumstances specified; the power must be strictly pursued, id. Strict compliance is necessary to confer jurisdiction, id. 559. This makes it mandatory.

A similar rule seems to have been adopted in the state of Michigan, in a case involving the validity of proceedings in the sale of lands for taxes, which is : "What the law requires to be done for the protection of the taxpayer is mandabory, and cannot be regarded as directory merely. Clark v. Crane, 5 Mich. 154. I understand the same rule prevails in Illinois; see Marsh v. Chestnut, 14 Ill. 223. In Massachusetts, Chief J. Shaw laid down the rule, in a case involving the legality of a tax under the provisions of a statute, as follows: "One rule is very plain and well settled, that all those measures which are intended for the security of the citizen; for securing an equality of taxation; and to enable every one to know with reasonable certainty, for what real and personal estate he is 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 statute, designed for the information of assessors and officers, and intended to promote method, system and uniformity in the modes of proceeding, the compliance or noncompliance with which does in no respect affect the rights of taxpaying citizens. These may be considered as directory; officers may be liable to animadversion, perhaps to punishment, for not observing them, but yet their observance is not a condition precedent to the validity of the tax." Torry v. Milbury, 21 Pick. 67. In Wisconsin, the rule as to what are directory statutes, is this: "Where there is no substantial reason why the thing to be done might as well be done after the time prescribed as before; no presumption that 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 as

the choice. It is said that the whole rate shall be null and void if the form fail to satisfy any one of numerous requisites prescribed. But if you confine the clause of avoidance to the last requisite, the enactment becomes so reasonable and easy in practice, that one is glad to find the construction admissible." Per Lord Denman: "Perhaps, this discussion, and others on similar phrases, may induce the legislature to say on future occasions, in what respects they mean any particular provisions to be void, which they declare to be so, in general terms; and what consequences they intend, should result from this invalidity. In the absence of this, we have great difficulty in all such cases.

Yet, when a local statute enacted that certain guardians should have power to bind children apprentices, "provided such children be not bound for a longer term than until they shall have attained certain specified ages," it was held, that an indenture binding a boy for a longer term than that allowed by the act, was not absolutely void, but only voidable. a Per Lord Denman: "This is as mild a form of directing, and only directing, as can be." Taunton, J., thought "the enactment of a permissive nature, &c."

It will be seen hereafter under the head of penal statutes, and the strict rules of construction applied to such cases, that the words "utterly void," and "utterly null and void," have been restrained and cut down in other cases besides those relating to the settlement of the poor, to which Mr. J. Williams confined them in his observations in the case of Pearse v. Morrice before cited. True it is, that the most numerous instances of a wide and spirited departure from the words of the statute occur in this branch of the law; which as being directed by the constitution of the country to be administered by country gentlemen, ought to have been more entirely free from evasions of its letter, and nice and subtle distinctions.

The statute 43 of Elizabeth, c. 2, passed in 1601, never received a just construction, founded upon the words of the act, "as inhabi

a R. v. The Inhabitants of St. Gregory, 2 A. & E. 99.

sume, 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. State v. McLean, 9 Wis. 292.

In Illinois, it is held, that under a directory statute, a duty should be performed at the time specified, but may be valid if performed afterwards. Under a peremptory statute, the act must be performed at the time specified. Webster v. French, 12 Ill. 302.

And in general, it may be laid down as a rule, that when a statute directs certain proceedings to be done in a certain way, or at a certain time, and the form, or period, does not appear essential to the judicial mind, the law will be regarded as directory, and the proceedings under it will be held valid, though the command of the statute as to form and time has not been strictly obeyed; the time and manner not being the essence of the thing required to be done.

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