The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-01-26

visions of the constitution drawn up by a con-
vention and nfterward ratified by the peopel
But it is said constitutions are drawn with
greater care than mere statutes. Is il then, to
be inferred in cOnsiru x a statute that 1t has
not been drawn with ne greatest care? On the
contrary. are no ali the Prescriptions on the
other side2 Are @ .es presumed to be directory
merely because they are caressly
drawnl contend that, both
us TO tatutes ana constitution, 1t is presumed
that the utmost care is exercised the same III
each instance, ana where the context shows
that in either case the fact is the reverse, that
tho provision has been carelessly framed, that
the like results would flow from this discovery.
Suppose this identical clause providing for the
entry of the amendments Of the Journals had
been adonted as a legislative act, and was not
embraced in the constitution Itself, would 1t not
he presumed that it was drawn with equal carel
Why shonld 10 have different meaningl
The argument that II one article is considered
as directory then all may be. applies just as well
to statutes.
3. The true doctrine is that. both in statutes
and in constitutions, whatever is of the essence
OF the matter provided for Is mandatory; what
ever merely relates to time and mode of pro
cedure is directory only, unless special words
are used showing that it was intended to pro-
hIhit all acts not done In that particular manner
or at that particular time. Thus, negative words
Will have this effect In Bishop on the Written
Law, 10 is said that when no rights will be I'M
paired provisions with no negative words
implications concerning time and manner, but
more especially time, in which official persons
shall perform designated acts, are directory.
Thus, in Jones vs.. Carnahau (63 Ind, 2331 it
was decided that statute providing that the
clerk OF the Circuit Court BnOulu draw up 6Acn
days proceedings at full length and read the
same publicly i'll open court, and after which
they should he signed by the judge, and no pro
cess should issue on any Judgment or decree I'M
til it shall have been so read and signed, was
merely directory, and that an execution issued
in violation of this provision, even If irregular.
was not void. This was cited with approval as
late as seventy-fourth Indiana.
Thus. in Miller vs.. The State g o. s., 476;
p. 1881, it was held that provision i'll the con-
stitution that every bill should be read success
lively three times in each house before passing,
was directory merely-Judge Thurman, one of
the most able iursts that the Stare has ever pro-
duced. and who ought certainly to he high au-
thOrity on the other side OF the House, giving
the opinion. The same principle was affirmed
in the People Va. Tue Supervisors, q N. Y,
32SJ aud in Blessing VS.. Galveston, AZ Texas,
GILL; and this Ohio decision was followed i'll
Pine VS.. Nicholson, (6 o. s., I79,) and in two
more recent Ohio cases.
The same thing has been practically decided
by the Supreme Court OF this State in the case
OF Evans VS.. Browne, (p 5l4 in so Ind1 where
IL was held that an enrolled act signed by the
presiding officer o! each house was conclusive
as to the regularity OF all prior proceedings,
aud the cOurt admitted that the effect Of this
decision was to do away with the mandatory
character OF many OF the provisions of the con
stitutiun, but considered that the people could
safely rely upon the uaths of the members and
officers Of the Legislature TO see thar these pro-
visions were enforced. Prior to this decision
II was supposed In this State that the Journals
could be used TO impeaoh the validity of law,
hut IN Mccullough va. the State I'll Ind, 49,
1t was held that If the iouranls are silent, it
tive steps were taken (see p. 432l but other
wise, when the Journals show that the hill on
There Is u defect OF power" Thus even
at a time when many constitutional provisions
were held mandatory which are now directory
merely, the difference between a defect OF power
and mere mode of procedure was clearly
pointed out.
Also, iu the People Vs. The Supervisors of Che
mango, 3 N. Y, 3l7, this same distinction is
shown There il was claimed that inasmuch as
the constitution required that the question on
the final passage of the hill should he taken by
yeas ard nays. and that they should be duly en-
tered on the Journals ana that there was % fail
ure to do this the law was void. The court says:
"There is no clause declaring the act 10 be void
II this direction be not followed. II does not
stand on the same footing with the requirement.
OF u certain number to form a quorum, or 20 mass
bill. In the latter case there is defect of
power II the requisite number Is not present aud
voting"
amendments on the Journals of the essence of
the proceeding. or liz IL a mere mode of proceed
ing convenient and proper for that end, but not
absolutely esseutial2 If the former, IL IL manda-
tory: If the latter, It is directory merely, and
be dispensed with. The essential matter of
the amendment is that the same identical amend
ment shall he ratified by the peOple after having
been agreed 10 by two successive Legislatures
If this can be done, no matter what the mode of
proceeding, the essential object stated by the
constitution is attained. The purpose of the
constitution III requiring that the amendment
shall be entered on the Journals is to authenti-
cate 1t for the use of the second General Assem-
bly,: and possibly also. the provision that IL shall
be entered with the yeas and nays, is To insure
each members voting under his responsibility to
his constituents and for the purpose of publish
ing information for the use of these constituents
at the election of members OF the second General
Assembly. No other purpose can be conceived.
II these ends have.been attained IN the present
instance the essentia! provisions OF the cons IT,
tutiOn have been accomplished.
Story SAYS: "rhe object of the keeping and
publishing of the journal Ia to insure publicity
of the proceedings OF the Legislature, and CORE.
spending responsibility of the members to their
re cOnSfiCuenpiR9 - 2 SforVS Com.
Constitution, section 1913. so also Green VS..
Weller, 81 Miss, 6SS.
How snail the amendments be agreed tot The
constitution does not say, hence any method is
sufficient which expresses the assent of the Leg
stature and in which the members net upon
their responsibility to their constituents. The
vote being taken by the yeas and nays Is sutli
tcirnt, provided 1t be properly authenticated
Now, the Legislature may speak in three ways.
FIRST, by concurrent resolution; second, by JOINT
resolutions; third, by bill. II no provision TO
entry upon the Journals were contained in the
constitution, the authorization of these facts
wonld he different A concurrent resolution
could only he authenticated by the journals OF
the respective houses, there being no provision
either in the constitution or laws for any other
authtnticatou whatever. If these amendments
had been agreed to in that manner. there he
no doubt that they must have been entered ifpnn
the journal, or that we can have no legal knOwl-
edge of their existence. But the constitution
expressly recognizes the legal existence of jnnt
resolutions and provides for their authentica-
ton. In article A, section 20. it is provided
that every act aud JOINT resolution shall be
plainly read. av0idngas far as practicable the use
OF technical terms. In the same article, section
2i, IL is said majority of all the members
elected to each house shall Oe necessary to pass
every bill or joint resolution, and all bills and
JOINT res0lu 80 passed shall he signed by the
presiding Off 'ers of the respective houses. BY
article ). section Ii, II is provided that every
hi which shall be passed by the General Assem-
hlv shall be presented TO the Governor, and. II
he approve. he shall sign it, and, il not, he shall
return il, etc. No such provision is made in re-
gard TO joint resolutions. All that is necessary
with them Is that they shall be signed by the
presiding officer OF each house. The eonstitn-
ton was adopted with special reference to the
JOINT resolution as something distinct from bill
at rhr time of its adoption.
Bur even IL it he conceded that neither n bill
u JOINT resolution was required when the last
Legislature agreed to the amendments, will II be
commended that thew could not do it in this man
neri Does not a hill express the legislative Will
well as a joint resolution Does not joint
resolution express 10 as well as q concurrent res
olutiong II the mode designed had been by bill.
would 1t he improper to authenticate 1t in the