109 Ky. 539 | Ky. Ct. App. | 1900
Opinion of the court by
Reversing.
This suit was instituted by the appellants to enjoin the collection of a graded-school tax in common-school district No. 25 in Graves county. The tax was voted at an election held in the district on the 2d day of July, 1898, pursuant to an order of the county court made at its preceding May term. The steps to procure the holding of the election were had pursuant to sections 4464-4468 of the Kentucky Statutes. The steps required by these sections of the statutes were substantially complied with; in fact, we may say they were literally followed. But appellants claim that the tax levy is illegal and void: First, because the sheriff of the county did not in person remain at the poll during the time the election was in progress, and hold the election, and certify the returns thereof in person; second, because the county judge, the county clerk and the sheriff acted as- an examining board, and certified to the county judge the number of votes cast at' the election, the amount of tax voted, and the names of the six trustees elected; third, because there is no record evidence that the judge and clerk who held the election were appointed for that purpose; and several other immaterial objections are also made.
It appears in the evidence that the sheriff of the county was in attendance at the polling place on the morning of the election before 7 o’clock; that the judge and clerk who had been appointed by him in the advertisement of the election to open the poll and conduct the election were not present; that thereupon he appointed R. G. Right to act as
The other objection to the levy suggested by counsel for appellant presents a much more serious question. By the act of March if, 1898, commonly known as the “Goebel Law,” the Legislature made numerous and radical changes in the election laws as they had previously existed. This statute provided for the appointment of a state board of election commissioners, who should annually, not later than the month of September, appoint other election boards for each county of this Commonwealth, who should be styled the “County Board of Election Commissioners;” and subsection 5 of section 1596, which is part of this act, provides that said county board of election commissioners should constitute a board for examining and canvassing the election returns of each county, and awarding and issuing certificates of election; and subsection 16 of the same section provides that all acts and parts of acts
It is always difficult to lay down a general rule to determine in all cases, when the provisions of a statute are merely directory, and when mandatory or imperative. No court has the right to hold any requirement of a law unnecessary to be complied with unless it is manifest the Legislature did not intend to impose the consequence which would result from holding the requirement indispensable. If it be clear that no penalty was intended to be imposed for noncompliance, then it is but carrying out the will of the Legislature to declare the statute in that respect to be directory. But, if there be anything to the contrary, a full compliance with it must be enforced. The most satisfactory test as to whether a statute is directory or mandatory is whether the prescribed mode of action is of the essence of the thing to be accomplished, or merely relates to some matter of conveyance in ascertaining the result. Chief Justice Shaw, of Massachusetts, in the early case of Torrey v. Millbury, 21 Pick., 67, in parsing upon this question, said: “In construing the various- statutes regulating the assessment of taxes, and the measure preliminary thereto, it is not always easy to distinguish which are conditions precedent to the legality and validity of the tax, and which are directory merely, and do not constitute conditions. One rule is very plain and well settled: that all measures that are intended for the security of the citizen, for insuring equality uf taxation, are condi
