Varney v. Justice | Cases | Westlaw

At the August election, 1886, the appellant and appellee were opposing candidates for the office of jailer of Pike county, Kentucky. It is agreed that the officers of the election for precinct No. 6 in said county were legally appointed and duly qualified to hold and conduct the election in said precinct; that they met at 6 o'clock in the morning of the day designated by the constitution of the state for the purpose of holding said election, and immediately entered upon the discharge of their duties; that they held the election without intermission from 6 o'clock in the morning until 7 o'clock in the evening; that at the hour of 7 o'clock, a considerable number of the legal voters of the precinct who had been at the polls nearly all day wishing to vote, had not voted, because the officers of the election could not record their votes between the hours above named; that the officers of the election, in order to accommodate these voters, kept the polls open from 7 o'clock in the evening until 9 or 10 o'clock that night, during which time they received and recorded the names of 25 voters of the precinct, all of whom voted for the appellant. These 25 votes were counted for the appellant, by the aid of which he was declared elected to the office of jailer; but for the aid of these votes, the appellee was elected to the office of jailer. In a word, at the hour of 7 o'clock in the evening the appellee had received a majority of the legal votes cast in the county for the office of jailer. The appellee contested the appellant's right to the office upon the ground that these 25 votes cast for the appellant after 7 o'clock in the evening were illegal votes and should not have been received or counted, because they were cast without the hours prescribed by the constitution of the state. The circuit court sustained the appellee's contention, and awarded the certificate of election to him. From that judgment the appellant has appealed to this court.

This court has held, time and again, (and recently in the case of Anderson v. Winfree, 4 S. W. Rep. 351, from Christian county,) that where the election has been held within the hours fixed by the constitution of the state, and at the place designated by law, mere irregularities in appointing the officers of the election, or mere irregularities in the proceedings of the officers of the election, will not vitiate the poll; nor will such irregularities be permitted to disfranchise, for the time being, a legal voter voting at such an election, unless such irregularities affect the real merits of the case. This court has announced the foregoing doctrine upon the ground that the appointment of the officers of *459 the election, and the manner of their conducting it, are regulated by statute; and, in order that the legal voter may be protected, and not disfranchised for the time being, by mere irregularities in the appointment of the election officers, or mere irregularities in the proceedings of the election officers, the statute authorizing their appointment and prescribing the manner in which they shall conduct the election must be construed to be directory merely, and not mandatory, unless such irregularities really affect the merits of the case, in which case the statute must be construed to be mandatory. But the question presented in this case is altogether different. Here we are called upon to deal with a constitutional question; for section 16 of article 8 of the present constitution of this state provides: “All elections by the people shall be held between 6 o'clock in the morning and 7 o'clock in the evening.”

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. Should this rule of construction be applied to the constitution of the state? We think not. The constitution of the state was adopted by the people of the state as the fundamental law of the state. This fundamental law was designed by the people adopting it to be restrictive upon the powers of the several departments of government created by it. It was intended by the people that all departments of the state government should shape their conduct by this fundamental law. Its every section was, doubtless, regarded by the people adopting it as of vital importance, and worthy to become a part and parcel of a constitutional form of government, by which the governors as well as the governed were to be governed. Its every mandate was intended to be paramount authority to all persons holding official trusts, in whatever department of government, and to the sovereign people themselves. No mere inessential matters were intended to be ingrafted in it; but each section and each article were solemnly weighed and considered, and found to be essential to the form of constitutional government adopted. Wherever the language used is prohibitory it was intended to be a positive and unequivocal negation. Wherever the language contains a grant of power it was intended as a mandate. Wherever the language gives a direction as to the manner of exercising a power, it was intended that the power should be exercised in the manner directed and in no other manner. It is an instrument of words granting powers, restraining powers, and reserving rights. These words are fundamental words, meaning the thing itself; they breathe no spirit except the spirit to be found in them. To say that these words are directory merely, is to license a violation of the instrument every day and every hour. To preserve the instrument inviolate we must regard its words, except when expressly permissive, as mandatory, as breathing the spirit of command. The section under consideration uses the word “shall.” It is mandatory, and excludes the right to hold the election earlier than 6 o'clock in the morning, and later than 7 o'clock in the evening. If the language was construed as directory merely the election might not only be continued until 9 or 10 o'clock at night, but all next day and the day after, and on and on, unless the courts, in the exercise of a discretion, should limit it, and thus make a constitutional provision in disregard of the one made by the people, for the government of elections. For these reasons it is clear that the votes cast after 7 o'clock in the evening for the appellant were illegal, and that the circuit court did right in excluding them. Section 8, art. 7, c. 33, Gen. St., provides: “Where another than the person returned shall be found to have received the highest number of legal votes given, such other shall be adjudged to be the person elected and entitled to the office.”

*460 Deducting the 25 illegal votes from the number of votes that the appellant received in the county, the appellee received the majority of the legal votes cast; and, according to the section of the statute, supra, he was elected and entitled to the office.

The judgment of the lower court is affirmed.