The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-01-26
Is the Provision Directory?

Is the Provision Directory?
This provision is directory only, and was di-
recsed to the last General Assembly. and not to
U.s. Article @ is: "Any amendment amend
Inents to this constitution may be proposed in
either branch of the General Assembly, ana II
the amendment shall be agreed to by majority
of the members elected 10 each of the two houses
suoh proposed amendment or amendments shall,
with the yeas and nays thereon, be entered ON
their journals and referred to the General AS
semby to be chosen at the neyt general elec-
ton and IL in the General Assembly so next
chosen such proposed amendment amend
meuts shall be agreed to by n majority
Of all the members elected TO each house,
then II shall be the duty of the General Assembly
10 submit such amendment or amendments to
the electors of the State. and If majority of
such electors shall rntlfy the same, such amend
frent or amendments shall become part of this
constitution" We say that the essential prOvis-
ioGs Of this article are thnt the same identical
amendments shall he agreed to by two success
i've General Assemblies and then by the people,
and chat all else is q mere direction for the pur-
pose of securing these ends.
/. 1t is claimed by some that all constitutional
provisions are to be regarded Ms mandatory.
This cannot he true. Indeed, Judge COrey him
setr tpaee Sll, who is the strongest advocate Of
the mandatory character of these provisions, adj
Inits that some constitutional provisions are d.
rectOry merely. For instance, that every hill, he
fore its passage, shall be road three times dis
tiuctly. He claims that the ''distinct" reading
of the hill Is purely directory, though he thinks
the readiug three times should be mandatory.
But there are many decisions to the effect that
many constitutional provisions directory
merely. For instance, the constitution of Ohio
provides that whenever law ia amended the
section amended shall he repealed. IL was held
III I1-n6.&n Mcbride, - o. s., 573 mat this
provision ia simply directory, and that a law
amending another repeats 1t ny Implication, and
Ia not void hecause the amendatOry law contains
no express repeal. The constitution OF Kansas
provides that the Lieut. enant-g governor shall
sign enrolled acts, hut In 10 Kansas, oil, It was
decided that he could not defeat the Will of the
Legislature nv failure to sign; that II was merely
a matter Of evidence which could be
otherwise supplied, although in Kansas,
as here, the enrolled bill is conclusive
evidence of the passage of the law.
IT ia provided in our own constitution that the
General Assembly shall pass laws for the regis
tratiqn of voters 1t is undoubtedly our duty to
pass snch II law; but il we fail the electors ut
Indiana are not thereby DISTINGUISHED This
provision Ia and must be wholly directory bind
Ing our consciences alone. The l4th section OF
article IL OF the constitution provides that dues
from corporations other than banking shall he
secured by srch individual liability of the cor
poratOrs or other means, az may Ue provided by
law. This undoubtedly imposes the duty upon
some of prescribing some security for dues
from corporations. This ia to he construed III
connection with section of the same article,
that the stockholders of every bank should he
individually responsible TO an amount equal TO
their stock over and above their Stock for all
debts thereof 1t was designed 10 provide some
such security 70" the debts of other TONS
The law of 1852 made a similar provision,
which WIS afterward repealed and no security
provided by the act of 1859, and in Wood
Harrison, so Ind, 1870, il was claimed that mas
much IA the act of 1852 contained II section
which imposed individual liability as security
and this was the only provision for security, an
act repeating snch section aud substituting
other provision is either unconstitutional the
repeating act being operative the act of 1852
itself authorizing corporatlons became inoper-
alive. The courrs say: ain our Judgment the
section of the constitution to which reference is
made In no way affects the proper construction
of tho law la question. IL devolves a duty upOn
the Legislature, hut whether that depart
ment shall discharge that duty in one man
ner or another, ut ono tim- or another, or
whether they discharge 1t all not is n
matter for them, and does not enter to
are considering. Nor do we talnk the action
prevents the Legislature from repeating an act
creating indlvdua liability, whether II act
ia provided or not. TIE provision as il WAS in
serted had no effect more than If this whole
subject had been expressly left to the LegiSla-
ture, or than if the clause had been III more
general terms that the Legislature should pro-
vide such guarantees for the ri Ghts and liAhli-
ties of stockholders rs it might deem proper or
than II no clause hau been inserted ON the sub
ject
The provision of the constitution Of the United
States ana Mississippi that members of the Leg
islature should take an oath to support the CON
stitutiOn of the United States is merely direct
DRY and their acts are NOT Void by failure TO
0l8j By the constitution of Mississippi 1t Is
provided that rhe style of their laws shall he:
abe it enacted by the Legislature of MISSISSIPPI
pi;" yet, in Swami va. Buck 40 Miss, 26S), It
was decided thnt where the enacting clause in
question was, "ResOlved, nv the Legislature OF
the State of Mississippi" this sufficient
compliance; that the clause question was
directory merely.
In the constitution of California 1t is provided
that every act shall embrace but one subject,
which shall he expire ssed in its title That con
stitutiOD, however dnes not contain the prnvis-
isOn embrace IN own, that the act in Gues-
ton shall be void as Ia the portion not embraced
In its title. The courts of this State have held
this provision to he directory merely. (See
PerrepOnt vs. Crnnch, 10 Cal, 81 @: Washington
VS.. Page, Cal, 1881 Aud provision of the
same kind in Ohio has also been held merely di-
rectOry. (Ohio VS.. Coyington, 20 D. s., 1161
Bishop tho Written Laws says (section $3.50:
"a constitutional provision may, like n statutory
one he interpreted only directory" From
the above decisions we can at least lay down
emphaticaly the proposition that 1t is not true
that all constitutional provisions are mandatory.
2 There is no more reason why in cOnsIi-
tuition certain words should he construed to he
had been contained in statute. The rules of
construction of statutes and constitutions IN this
respect oueht TO I've and are Identical IL is said
that the constitution is the paramount law, and
hence nothing In IL IL to be construed away rs
inmaterial or directory merely. But
not all statutes made within the
power of tho Legislature the paramount
law7 Is not even n city ordinance made within
the powere conferred a paramount Obgatinnf
Is not every statute passed by the Parliament OF
England, where there is no written constitution,
the paramount law OF the land aud are statutes
there construed differently from statutes hrre2
ontly from constitutions herel Butt 1t Il sid
is .it.L al la