The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-01-25

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and relate to the manner in which power or ju-
rfsdiction vested in public officer or body is to
be exercised, and not TO the limits of the power
| or jurisdiction itself, they may and often nave
| been construed to he directory, but negative
words which go to the power or Jurisdiction
itself have not been so construed TO Penn.
ST., page 1861 "a clause is directo-
Ty," SAYS Taunton, J., In Pierce vs. Morris y AID.
& El. 16l when the provisions contain mere mat
ter of direction and no more, but not 80 when
they are followed by words OF positive proh1bl-
ton"
fisf laid down by Lord Mansfield, that whether
n statute is mandatory not depends on
whether the thing directed to be done is OF the
essence OF the thing required. Those directions
which are not OF the essence of the thing TO be
done, but are given with a view merely to the
proper, orderly aud prompt conduct of the bust
ness, ana by failure TO obey which the rights of
those interested will not be pfeiudieed, are not
commonly to be regarded as mandatory, and II
still be sufficient, IL that which is
done accomplishes the substantial pur-
pose Of the statute (Cooley's Constitutional
Limitations, page 93), to support which cases
are cited in Massachusetts, Vermont, New York,
connecticut, Michigan Indiana and many other
States. IL is familiar principle that statutes
relating merely to matters of convenience or to
the orderly and prompt conduct Of business, and
not 10 the essence of the thing to be done, are
page 349).
under our constitution Surely It is that q
proposed amendment "shal" be agreed to by
| majority or the members elected to each house
Has this been donel Let the journals answer.
House journal on page - shows that the pro-
hDltory amendment was agreed toin the House
ny 90 yeas to 30 nays, and 1t was agreed TO in
the Senate by &c yeas to 20 nays being a
Jority elected to each branch of the General As
sembly, as required by the constitution, But it
is said that the word "shal' is mandatory, and
must be so construed. In the of Wheeler
vs. The City OF Chicago, "a H., 105, which was
demn private property for public purposes I'M
ger tine exercise OF the right of eminent
domain, the stature provided that the
commissioners shall apnend to their
it was held that the word 'shali'' was merely di,
recting, the court saying, "fhe word Shall may
be held to be be merely directory when no adj
vantage is lost, when no right is destroyed,
when no benefit Is sacrificed, either to the pub
Tic or TO any individual, by giving it that con-
struetion" This case is all the stronger because
the statute under which it arose being in dero-
eatlou of common right WIS. under all rules, to be
II, Sec 27I.
The constitution of Indiana provides (article
4. section 80, the style of every law shall be-
| BE it enacted by the General Assembly" etc,
and vet in the States OF Maryland, Mississippi
anu Missouri ami perhaps in other States hav-
ing the same constitutional provision, it is held
that this provision is merely directory,
and has no effect whatsoever upon the
validity OF a law not 30 styled. A provision in
city charter that the yeas and nays shall be
| called and published whenever vote is taken
upon an ordinance has been held, nOtwithstand-
ing the use of the word "shall," to be directory
merely, the essential requisite being the deter
mination of the council and not the form ami
manner of expressing that determination q
Hi, p. 8, 25 Wendell, $3.50, and so instances
might be given and authorities multiplied, but it
seems to be unnecessary TO prove the proposition
asserted.
1t is argued that directory or mandatory, it
makes no difference, we, rs senators, are sworn
to obey IT. Look for moment at that prOpo-
stion; the command, il it be a command, is
not addressed to this Assembly; it
to the last Assembly; have nothing to do
with entering the amendments upon the Jour
nais. Ii that was duty, the time OF It's per-
formance was in che Assembly which first agreed
TO IL. Our duty is laid down clearly in the consti-
tuition as follows: "And if in the General Assem-
| bly, 80 next chosen such proposed amendments
shall he agreed to by majority, etc, then it
shall he the duty Of the General Assembly to
submit them to a vote OF the people," Is not
THAI sufficiently clear, sufficiently mandatoryf
Our duty is, II agreed to to submit them to the
people, Shall we do our duty, or sit in Judgment
| upon or predecessors fer alleged sins of eInis-
sion on their parts
Hero is the rule laid down In % No, 353, "The
course required to be observed in the perfOEnl-
ance of act is not always of its essence
Vitality. When an act is directed to be done in
particular way, the direction NAV not be of the
essence of the act, but the act may stand In law,
Notwithstanding the directions were not strictly
observed. This Is familiar principle. What
we design to hold is that there are forms to be
observed I'm the enactment OF laws, and that the
members of the Legislature are sworn to observe
those FORMS and yet IL they violated the con-
stitution never intended that their acts should
be void.
| come now to consider the question of the
| form in which the proposed amendments were
were agreed 10 and authenticated, and the effect
| thereof. They were presented in each Instance
as joint resolutions. Article 4, section % OF the
constitution provides that "a majority of all the
members elected to each house shall be neces-
sary to pass every bill ieint resolution, and all
| bills and joint resolutions passed shall be
signed by the presiding officers of the respective
| houses" Now the constitution does not any
where provide how or in what form amend
ment may he proposed, but it seems that all of
! the amendments ever proposed have been in the
form OF joint resolution There is moth
ing MP IL pr nus Ieng sthnd b saE Jr
propose amendment, and if the method has
been strictly in accordance with the constitu-
tional provisions and II all these proposed
amendments have been agreed to by the requi-
| site number and are pTopery authenticated by
| the President OF the Senate and the Speaker of
the House. is this not conclusive as to their hav-
| ing been properly and regularly passed, and can
| we look further or behind that to see whether
| the proceedings prior thereto were IN all things
thls question in the able opinion of Judge
Auditor, va. Browne, 80 Ind, SID, where he
! cites many authorities, and says: "rhis
exact question has received the considera-
| ton of other American courts, who
| have th0nghtfully and with careful steps
| reached the conclusion that the authenticatives
| of the presiding officers of the Legislature is
| conclusive evidence of the proper enactment of
| law. and that they cannu5 look elsewhere to
falEty It," This Is the law in Indiana. This de-
| cision has not been set aside reversed. 1t
| does not seem necessary to follow the senator
| from Marion ivan Vorhisl in his wandrrngs
after authority to aNOlu tEs elect OF tuiS decS-
| ion break is force. 1t stands impenera-
| BILE barrier between the amendments proposed
| for the action of the people and the technicaty
| raised by the senator. IL is claimed, however,
that because the constitution does not prescribe
| any form tn he given to a proposition To amend
it, that therefore the proposition being in the form
| of joint resolution and properly authenticated
gives 1t no greater force than If proposed in any
other form. An answer to this is that the con
| stltuton should be construed that all its pro-
| visions may stand, and If it should he contended
| that the proper and legal naturalization of
| Joint resolution gives 1t no validity. then we
| disregard that provision of the constitution
| which directs how joint resolution shall be
authentica ted. What excuse is there for disre-
| gar,iine section that will nO6 he equally
| valid for disregarding another2 The matter
then stands thus: These proposed amendments
| have been regularly proposed and passed, with
! all the forms and soeinnities required by the
| cOnstltntl0n as iOtnt res0lutiohs. and the PRO