Page:State v. Johnson.pdf/4

284   Rh    in mandamus and quo warranto, by Judges familiar with the law, its practice and its precedents, we will now take up the second ground of demurrer. The question raised by the second ground is: "Is that clause of the schedule to the Constitution of 1868, directory or mandatory, as to qualifying within fifteen days after receiving notice of election?"

It is urged by counsel for respondent, that the clause in the schedule is directory and not mandatory. It is also urged that the schedule is but an ordinance of the convention, and that the rule of construction, applicable to statutes, should apply, rather than that applicable to Constitutions. In the case of Ridley v. Sherbrook, (3 Cold. 569,) the Supreme Court of Tennessee held, that, "the provisions of the schedule, for the purpose for which they were designed, had all the force of Constitutional provisions." This is the only decision upon the subject we have been able to find, in the limited search we have made, and having no disposition to question the correctness of the decision of that court, we will proceed to discuss whether the provision was mandatory or directory.

It is urged by counsel for the respondent, that, "statutes directing the mode of proceeding by public officers are directory, and are not regarded as essential to the validity of the proceedings themselves, unless it be so declared in the statute." While, to some extent, this is a general rule, yet it by no means follows that it is an universal rule. In the case of the People v. Cook, (14 Barb. 290, 8 N. Y. 67,) the rule contended for by respondent was laid down, and it is insisted, is applicable to this case. We are unable to comprehend the analogy, and it does not exist; for there is a vast difference between a statute that directs how an officer shall proceed after he is an officer, and a statute that directs how he shall proceed in order to become an officer.

Treating the schedule to the Constitution in the light of a mere ordinance of the convention, and entitled to no more consideration than an act of the Legislature, let us see if it is directory or mandatory. It declares that "All officers shall