Skaggs v. Fyffe

• Decision Date: 24 November 1936
• Parties: SKAGGS et al. v. FYFFE, Judge.
• Court: Kentucky Court of Appeals

98 S.W.2d 884

266 Ky. 337

SKAGGS et al. v. FYFFE, Judge.

Court of Appeals of Kentucky

November 24, 1936

Rehearing Denied Dec. 8, 1936.

Appeal from Circuit Court, Lawrence County.

Suit by C. E. Skaggs and another to enjoin the Hon. L. D. Fyffe Judge of the Lawrence County Court, from calling a local option election. From a judgment refusing an injunction or writ of prohibition, the plaintiffs appeal.

Affirmed.

Clyde L. Miller, of Ashland, for appellants.

Chesley A. Lycan, of Louisa, for appellee.

STANLEY Commissioner.

Obedient to the requirements of section 61 of the Constitution, which was re-adopted in place of the Seventh or State-Wide Prohibition Amendment at the 1935 election, the General Assembly at its 1936 session enacted a statute providing a means whereby the sense of the people of any county, city town, district, or precinct may be taken as to whether or not intoxicating liquor shall be dispensed therein. Chapter 1 Acts 1936, section 2554c-1 et seq., Kentucky Statutes. It is made the duty of the county judge to order such an election upon the filing of an application therefor in the county court signed by a number of legal voters in any of the specified units equal to 25 per cent. of the votes cast therein at the last preceding general election.

Section 3 of the act (Ky.St. § 2554c-3) provides, in part: "Said petition, in addition to the subscription of the name of the voter, shall state his postoffice address and the correct date upon which same was signed."

We are called upon to decide whether this provision is mandatory or directory.

The purpose of this suit by two taxpayers against the county judge of Lawrence county is to enjoin the holding of a local option election under the foregoing statute upon the ground that the application therefor is fatally defective because the number of subscriptions to the petition does not show either the date on which same were made or the post office address of the subscriber. It is charged that when those names are disregarded or stricken, the petition does not contain the number of signatures of legal voters required by the statute. Only the allegation as to the invalidity of the petition on that account is challenged. It is averred, and not controverted, that the petition shows all of the signers to be voters of Lawrence county. The circuit court held the provisions of the statute to be directory, hence that the omission of the dates and addresses was not that of a jurisdictional requirement, and adjudged the application for the election to contain signatures greater in number than 25 per cent. of the legal voters of the county at the preceding general election. The injunction or writ of prohibition against the county judge was therefore refused. From that judgment this appeal is prosecuted.

A proceeding not following a mandatory provision of a statute is rendered illegal and void, while an omission to observe or failure to conform to a directory provision is not. In Varney v. Justice, 86 Ky. 596, 600, 6 S.W. 457, 459, 9 Ky.Law Rep. 743, the court said: "By the term 'directory' it is meant that the statute gives directions which ought to be followed; but the power given is not so limited by the directions that it cannot be exercised without following the directions given. In other words, if the directions given by the statute to accomplish a given end are violated, but the given end is in fact accomplished, without affecting the real merits of the case, then the statute is to be regarded as directory merely."

Whether a statute is to be deemed directory or mandatory depends, not on form, but on the legislative intent, which is to be ascertained by interpretation from consideration of the entire act, its nature and object, and the consequence of construction one way or the other. If the provision relates to some immaterial matter, not reaching the substance, or not of the essence of the thing to be done, and by an omission to observe it the rights of those interested will not be prejudiced--as where compliance is a matter of convenience or the directions are given merely with a view to securing proper, orderly, or prompt procedure--it is generally regarded as but directory. Of course, the term "mandatory" embraces the converse character of provisions, which are conditions precedent. Lancaster v. Hamon, 153 Ky. 686, 156 S.W. 142; McCreary v. Speer, 156 Ky. 783, 162 S.W. 99; Gollar v. City of Louisville, 187 Ky. 448, 219 S.W. 421; Hays' Ex'x v. Burns, 216 Ky. 827, 288 S.W. 764; Davidson v. Board of Education, 225 Ky. 165, 7 S.W.2d 1056.

Provisions of election laws are all mandatory in the sense that they impose the duty of obedience on those who come within their purview, but it does not follow that every slight departure therefrom should vitiate the whole proceeding. If a statute simply provides that certain acts or things shall be done within a particular time or in a particular manner, but does not declare or indicate that their performance is essential to the validity of the election, they will be regarded as directory if they do not affect the actual merits of the election. And under the recognized principle of statutory construction that laws are to be liberally construed when necessary to reach a substantially correct result, to that end their provisions will, to every reasonable extent, be treated as directory rather than mandatory. 25 R.C.L. 772; Ferguson v. Gregory, 216 Ky. 382, 287 S.W. 952.

In determining the nature of the statutory provision, the use of the word "shall" with reference to some requirements (as in the statute under present consideration) is usually indicative that it is mandatory, but it will not be so regarded if the legislative intention appears otherwise. Thus, section 4307 of the Statutes, relating to elections on bond issues, provides that the county court "shall at the regular term thereof, after receiving said petition, make an order on his order book directing an election to be held in said county on some day named in said petition not earlier than sixty days after said application is lodged with the judge of said court." In construing that provision in Horning v. Fiscal Court of Caldwell County, 187 Ky. 87, 218 S.W. 989, 992, where the order called an election on a day other than that named in the petition, the court said: "An essential thing to the validity of an election held under the statute supra, is that the petition shall be subscribed by 150 legal voters who are freeholders, and that the order be made at a regular term of the county court, and these are mandatory, because they are prerequisites to jurisdiction to order the election. It is likewise essential to the validity of such an election that it be not held earlier than 60 days after the application is made, and that it be advertised for 30 days theretofore in order to give notice to the persons affected by such an election of the time and place of its holding and the time and opportunity to consider their interests in connection with it and their duty in reference to it in the protection and advancement of their rights and interests. These provisions are, without doubt, mandatory, and, unless strictly complied with, would render the election without effect. The provision providing that the election be ordered to be held 'on some day named in the petition' could only be a provision for orderly procedure. *** Hence we conclude that the direction in the statute with regard to fixing the date for the election, except after the time required by the statute, is not mandatory, but directory, and if the election was otherwise legally held, the fact that the county court ordered the election to be held upon a day other than the one named in the petition, but on the third day theretofore, did not render the election invalid, and the demurrer was properly overruled." See, also, Ferguson v. Gregory, supra.

The provisions of the local option law in the particular under examination can be, as to the address, only for the purpose of readily or conveniently identifying the petitioners as being of the class having the right to apply for the holding of the election, and, as to the date on which signed, only to show that it was done when they were so qualified, or perhaps, to disclose that it was signed before the filing of the petition. That would seem to be merely to afford convenience in ascertaining the real or substantial thing, to wit, the qualification. That is of the essence, hence mandatory. A statement of the particular place of residence in the territory is not. The statute does not say the subscriber himself shall write in his address or the date of signing, but merely that the petition shall state those things. If an erroneous address be given, it would be equivalent, for the purpose of the act, to no address. What difference would it make in accomplishing the purpose of the statute if the application gave a petitioner's wrong street address so long as he was a qualified voter in the territory affected? Often in the country the name of one's voting precinct is not that of his post office address. It is said in...