Page:State v. Johnson.pdf/17

26 Ark.]  1870.]   the office; and that if a failure to take such oath within the time is a violation of said clause, there is no penalty affixed for such neglect or violation, and it is not within the scope of judicial authority to create a penalty or declare what that penalty shall be.

Although this precise case is new in this court, there have been many questions strikingly analogous in principle to the ones here presented.

Mr. Sedgwick, in his work on statutory and constitutional law, 368, says: "When statutes direct certain proceedings to be done in a certain way, or at a certain time, and a strict compliance with these provisions of time and form does not appear essential to the judicial mind, the proceedings are held valid though the command of the statute is disregarded or disobeyed." See, to the same points, ''Cooley's Const. Lim., 74, et seq.''

Whether or not the general principle here enunciated, is applicable to the case before the court, depends upon the question as to whether or not the time for taking the official oath, as stated in this schedule, is of the essence of the thing to be done. To arrive at that we should look to the purport, meaning and intent of this act, or schedule. A Constitution had been framed, the fundamental principles of an original law had been agreed upon, and now it was desired to have the assent of the people to this fundamental law; and the delegates then undertook to direct in what manner the people should express their assent or dissent to this law, and in what manner they should choose officers to fill the various positions provided for in such organic law, and at what time and in what manner these officers should enter upon the discharge of the duties of their respective offices. It directs how the elections shall be held; provides for commissioners and judges of elections; directs how elections may be contested, and the result declared; and, in short, prescribes the manner of forming a government, in accord with the organic law thus agreed upon. This ordinance was to declare the manner of getting up the machinery