Haskell v. Reigel
| Decision Date | 22 March 1910 |
| Citation | 108 P. 367,26 Okla. 87,1910 OK 101 |
| Parties | HASKELL, Governor, v. REIGEL et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Section 5, art. 1, c. 26, Sess. Laws 1907-08, providing that "if the object sought be to transfer territory from one county to an existing county, and if sixty per centum of the votes cast at said election vote 'Yes,' the Governor shall, within ten days after declaring the result of said election, issue his proclamation calling an election," etc., as to such time, is directory.
(a) The voters of Hunter township, a part of Kiowa county, at an election by a 60 per cent. majority voted to transfer said township from Kiowa county to Tillman county, the Governor having issued his proclamation after declaring the result of said election, calling an election to be held in Tillman county, at which he submitted, not the proposition of attaching Hunter township, but only a certain portion thereof. His action in so doing was void.
(b) Although the statute requires the Governor within 10 days after declaring the result of such election to issue his proclamation, etc., yet the fact that through inadvertence or misapprehension of the law he has failed to do so, that does not relieve him of the duty of issuing the proclamation as required by law. The statute imposed a duty which should be performed within the time stated, but, if not, it yet remains a duty.
Error from District Court, Logan County; A. H. Huston, Judge.
Action by O. B. Reigel and others against C. N. Haskell, Governor. Judgment for plaintiffs, and defendant brings error. Reversed, with directions to dismiss.
S. W Johnson, Hudson & Mounts, and Ledbetter, Stuart & Bell, for plaintiff in error.
H. E Asp, Devereux & Hildreth, and Moss, Turner & McInnis, for defendants in error.
The question essential for determination in order to dispose of this case is as to whether section 5, art. 1, c. 26, Sess Laws 1907-08, p. 278. providing that "if the object sought be to transfer territory from one county to an existing county, and if sixty per centum of the votes cast at said election vote 'Yes,' the Governor shall, within ten days after declaring the result of said election, issue his proclamation calling an election to be held in the county to which said territory is sought to be transferred, which said election shall be held not less than thirty nor more than forty days thereafter," is mandatory.
In the case of Town of Grove v. Haskell et al., 104 P. 56, this court held as to the notice that the clause, "such election shall be held under the provisions of the election laws of the state and upon such public notice of the election as the Governor in his proclamation may direct" (section 3, art. 1, c. 26, p. 277, Sess. Laws 1907-08), was directory. This identical clause is taken from section 6, subd. a, art. 17, Const. Section 3 also contains a clause that "upon filing of said petition or petitions, accompanied by affidavits mentioned in the preceding section, with the Governor, he shall, within twenty days of the filing of said petition or petitions, issue his proclamation calling an election to be held in said territory sought to be formed into a new county, or transferred to another county, not less than thirty nor more than sixty days from the date of his proclamation." Then follows the companion provision directing the mode of procedure of a public officer, as construed in the case of Town of Grove, supra. If that clause relating to notice is merely directory, why should the preceding provision as to the time in which the notice shall be issued not also be directory? Is it not more essential that the provision for the giving of notice be more directly complied with in order that all the electors residing within such proposed territory may have an opportunity to participate in the election and express their will on the questions submitted than the provision prescribing that the public officer should act within a certain time? "Where a statute specifies the time within which a public officer is to perform an official act affecting 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 used by the Legislature, shows that the designation of the time was intended as a limitation of the power of the officer." Paine on the Law of Elections, 1888, § 309, p. 207; Black on Interpretation of Laws, pp. 343-345; 3 Lewis' Sutherland, Statutory Construction (2d Ed.) § 612, p. 1117; Endlich on Interpretation of Statutes, 1888, § 437, p. 618. The cases of Dishon v. Smith, Co. Judge, 10 Iowa, 212, and People v. Cook, 14 Barb. 259, Id., 8 N.Y. 67, 59 Am. Dec. 451, relate to election cases, the former involving a county seat. See, also, Colt et al. v. Eaves, 12 Conn. 243; Walker et al. v. Chapman, Governor, etc., 22 Ala. 116; Com'rs Court of Limestone County v. Jno. D. Rather et al., 48 Ala. 433; Hart v. Plum, 14 Cal. 149; Pond v. Negus et al., 3 Mass. 230, 3 Am. Dec. 131; People ex rel. v. Town of Fairbury, 51 Ill. 149; Gale v. Mead & Seely, 2 Denio (N. Y.) 160; Heath's Case, 3 Hill (N. Y.) 42; State v. Smith, 22 Minn. 218; Edwards v. Hall, 30 Ark. 37; Sackett v. State ex rel., 74 Ind. 480; Norris et al. v. Cross, Secretary of State, 105 P. 1000.
The only case cited by the defendants in error in support of the contention that the statute is mandatory is that of Gossard v. Vaught et al., 10 Kan. (2d Ed. p. 129) 162. Section 5, c. 26, Gen. St. Kan. 1868, relating to county seats, declares: "The elections provided for in this act shall be held within fifty days after the presentation of the petition therefor; and the county commissioners shall cause thirty days' notice of such election to be given, by publication in one or more newspapers published in the county, or by posting written or printed notices at the several voting places in the county." In construing this section the Supreme Court of Kansas said (Gossard v. Vaught supra): ...
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