visions are directory where they relate to some immaterial matter not of the essence of the thing to be done; where a compliance is matter of convenience rather than substance; where the departure from the statute will cause no injury to any person affected by it.' § 456. The special powers given to corporations, to courts or officers must be exercised with strict, substantial adherence to all directions of the statute. When a statute which grants power or authority has expressly fixed, limited or declared the time, with reference to essential antecedent acts, when such authority shall begin to be exercised all other time is excluded; expressio unius est exclusio alterius. It was held under an act relative to the organization of corporations, which provided that "when the certificate has been filed as aforesaid the persons who shall have signed and acknowledged such certificate and their successors shall be a body politic and corporate," that until this certificate had been so filed there was no provision making such persons a corporation; therefore the filing of it was a condition precedent." A body corporate, created for a special purpose, with limited powers, being a creature of the statute, must conform in its action to the law of its creation, and acts done contrary to such regulations are simply void. In statutory proceedings the statute must be substantially complied with; every act required which is jurisdictional, or of the essence of the proceeding, or pre People v. Schemerhorn, 19 Barb. 558. See Koch v. Bridges, 45 Miss. 247; Hurford v. Omaha, 4 Neb. 336; Best v. Gholson, 89 Ill. 465; People v. Cook, 14 Barb. 290; 8 N. Y. 67: Marsh v. Chesnut, 14 Ill. 223; Clark v. Crane, 5 Mich. 151; State v. McLean, 9 Wis. 292; Norwegian Street, 81 Pa. St. 349; McKune v. Weller, 11 Cal. 49. 2 Cope v. Thames Haven, etc. Co. 3 Ex. 841; Diggle v. London, etc. R. R. Co. 5 id. 442; Des Moines v. Gilchrist, 67 Iowa, 210; Pittsburg v. Walter, 69 Pa. St. 365; Pensacola v. Reese, 20 Fla. 437; Norwegian Street, scribed for the benefit of the party to be affected thereby, must be done; the requirement is mandatory. Of this nature is the certificate of a justice of the peace of the town where the parties reside, as to the death of an infant's father, required by a statute relative to the binding of infants as apprentices to be given, before the consent of the mother can be deemed sufficient, and the indorsement of such certificate on the indenture itself. Every material requirement must be strictly observed in carrying out the laws for condemning private property to public uses, and the proceedings must show affirmatively on their face a substantial adherence to the course prescribed by the statute." Land cannot be so taken without compliance with the preliminary requirement to endeavor to agree with the owner upon the compensation. § 457. Where work required by a municipal charter to be let by contract on competitive bidding has been done by day's work there is a fatal departure from the statute. An act requiring a preliminary notice for the benefit of persons to be affected, or the information of the public, when a statutory power is to be exercised, is mandatory. A provision prohibiting the passing or adopting of certain resolutions by the common council until two days after the publication thereof in a prescribed manner, held mandatory; that compliance was essential jurisdictional. So one requiring a comptroller to publish notices stating when the time for redemption of land 4 People v. Hillsdale, etc. T. Co. 2 John. 190. 1 United States v. Wyngall, 5 Hill, 3 Kroop v. Forman, 31 Mich. 144; 16; Olcott v. Frazier, id. 562; Sharp Bennett v. Drain Commissioner, 56 v. Speir, 4 Hill, 76; Sharp v. John- id. 634. son, id. 92; In re Petition of Ford, 6 Lans. 92; Weed v. Lyon, Walk. Ch. 77; Galpin v. Abbott, 6 Mich. 17; In re Selby, 6 Mich. 193; O'Donnell v. McIntyre, 37 Hun, 615; Thurston v. Prentiss, 1 Mich. 193; Duanesburgh v. Jenkins, 46 Barb. 294; Wheeler v. Mills, 40 id. 644; Whitney v. Thomas, 23 N. Y. 281; Hascall v. Madison University, 8 Barb. 174; In re Petition of Folsom, 2 T. & C. 55. 2 People v. Gates, 57 Barb. 291; People v. Adirondack Co. id. 656. 5 Matter of Manhattan R. R. Co. 102 N. Y. 301; In re Emigrant Industrial Savings Bank, 75 id. 388; In re Merriam, 84 id. 596, 609; In re Weil, 83 id. 543; In re Lange, 85 id. 307. 6 Lane v. Burnap, 39 Mich 736; Barnett v. Scully, 56 id. 374; Bennett v. Drain Comm'r, id. 634; Welker v. Potter, 18 Ohio St. 85. In re the Petition of Douglass, 46 N. Y. 42. Bold for taxes would expire. It is intended for the protection of the land-owner, and unless complied with no title will pass by the deed.1 § 458. Statutes which confer new right, privilege, etc.-Where a statute confers a new right, privilege or immunity the grant is strictly construed, and the mode prescribed for its acquisition, preservation, enforcement and enjoyment is mandatory. An instance of such legislation is that relating to married women, by which they may acquire and dispose of property, make contracts in regard to it, and assert other rights. Such statutes, providing the form and mode of exercising the rights thus given, are mandatory; they must be fo:lowed substantially to give validity to their acts.2 The same is true in regard to copyrights. Where a statute provided for sealed bids to be received until a certain day, when they are required to be opened, all bids put in after that day are excluded.' § 459. Where an existing right or privilege is subjected to regulation by a statute in negative words, or those which import that, it is only to be exercised in a prescribed manner, the mode so prescribed is imperative. A provision of the Wisconsin registry law was that "no vote shall be received at any annual election in this state, unless " certain previous conditions were complied with; it was held to be imperative; that all votes received in violation of the regulation should be rejected in an action to try the title to an office. Where the language of 1 Westbrook v. Willey, 47 N. Y. 457; Cruger v. Dougherty, 43 id. 107; Doughty v. Hope, 3 Denio, 594; 1 N. Y. 79. 2 Bartlett v. O'Donoghue, 72 Mo. 563; Hoskinson v. Adkins, 77 id. 537; Bagley v. Emberson, 79 id. 139; Beckman v. Stanley, 8 Nev. 257; Shumaker v. Johnson, 35 Ind. 33; Mattox v. Hightshue, 39 id. 95; Callum v. Petigrew, 10 Heisk. 391; Leggate v. Clark, 111 Mass. 308; Armstrong v. Ross, 20 N. J. Eq. 109; Trimmer v. Heagy, 16 Pa. St. 484; Glidden v. Strupler, 52 id. 400; Dunham v. Wright, 53 id. 167; Graham v. Long, 65 Pa. St. 383; Miller v. Wentworth, 82 id. 280; Innis v. Templeton, 95 id. 262; Miller v. Ruble, 107 id. 395; Montoursville Overseers v. Fairfield Overseers, 112 id. 99. 3 Wheaton v. Peters, 8 Pet. 591; Jollie v. Jaques, 1 Blatchf. 618; Baker v. Taylor, 2 id. 82; Newton v. Cowie, 4 Bing. 234; Avanzo v. Mudie, 10 Ex. 203; Brooks v. Cock, 3 Ad. & E. 141; Henderson v. Maxwell, L. R. 5 Ch. Div. 892; Mathieson v. Harrod, L. R. 7 Eq. 270. 4 Webster v. French, 12 Ill. 302. 5 Stayton v. Hulings, 7 Ind. 144; Union Bank v. Laird, 2 Wheat. 390. 6 State v. Hilmantel, 21 Wis. 566; a statute is that no debt or contract thereafter incurred or made by a municipal corporation shall be binding . unless authorized by law or ordinance, and an appropriation sufficient to pay the same be previously made, it is mandatory, and the power to contract is limited accordingly. The provisions of the statute of frauds are another notable instance of mandatory regulations. Where the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other manner, no doubt can be entertained that the command is imperative. The enactment, for instance, of the metropolitan building act, that the walls of buildings shall be constructed of brick, stone or other incombustible material, though containing no prohibitory words, obviously prohibits by implication and makes illegal their construction with any other. A statute provided that an assignment for the benefit of creditors shall be duly acknowledged by the assignor, and the certificate thereof duly indorsed, before delivery to the assignee; that the assignor at the date of the assignment, or within twenty days thereafter, make and deliver to the judge of the county of his residence a schedule, verified by him, as prescribed by the act, containing a full and true account of all his creditors and their residences, as far as known; the sum owing to each creditor, and the nature of the debt and how it arose; the consideration of the debt and the place where it arose; a statement of any security for any debt, etc. This statute also required a bond from the assignee for faithful performance of the trust. These provisions were held mandatory." State v. Stumpf, 23 Wis, 630; In re Election of McDonough, 105 Pa. St. 488. See Dale v. Irwin, 78 Ill. 170, and Clark v. Robinson, 88 IL 498, where it was held that the negative provision or prohibition was direct ory. Grover, J., delivering the opinion of the court, said: "In construing these two latter sections, the supreme court applied the rule adopted in the construction of statutes, prescribing the time for the performance of official acts by public officers, in the 1 Bladen v. Philadelphia, 60 Pa. St. performance of which the public 464. 2 Endl. on St. § 431. 3 18 and 19 Vict, ch. 122, § 12. have an interest. In construing these latter statutes it is well settled that, where the act prescribes a time for 4 Id.; Stevens v. Gourley, 7 C. B. the performance of the act, without (N. S.) 99. anything prohibiting the doing it 5 Juliand v. Rathbone, 39 N. Y. 269, after the time so fixed, the act shall § 460. Statutes which are permissive in form. Where statutes are couched in words of permission, or declare that it be valid if performed after the time prescribed. The reason for this construction is that the public, or some portion thereof, have an interest in the performance of the act, and, to prevent injury from the laches of the officer, the rule has been adopted. That class of cases holding that, where the common law confers a right or gives a remedy, and a statute is enacted conferring a new right or giving a new remedy, it will be so construed as not to take away the common-law right or remedy, unless it contains negative words showing that such was the legislative intent, was somewhat relied on; neither class is analogous to the present statute. The acts to be performed are by private persons, not public officers. The act creates no new right or remedy, but is designed to regulate an existing right merely. In construing such statutes the common-law rule, as laid down by the elementary writers, is to consider, first, what mischief, if any, resulted from the exercise of the common-law right: second, what is the remedy provided by the statute for such mischief; third, to give the statute such construction, if practicable, as will suppress the mischief and make the remedy efficient. Applying the rule to the present statute the mischief to be remedied is obvious to prevent pretended assignments being made obstacles in the way of creditors. The first section provides that it shall be acknowledged, and the proof thereof certified before delivery. This court has held (Hardmann v. Bowen, 39 N. Y. 196) that an assignment delivered without such acknowledgment and certificate is void. This does not necessarily determine the effect of non-compliance with the requirements of the two following sections, as the judgment may be upheld by the provision that the acknowledgment, etc., shall be made before the delivery of the assignment. But in the absence of this, I think the same construction should be given to the clause, which then would read, every conveyance made by a debtor in trust for his creditors shall be acknowledged. Experience has shown that debtors frequently, with a view to defraud their creditors, and make compositions with them advantageous to themselves, made general assignments of all their property in trust for creditors, giving no information of the character, situation or value of the property assigned, or the amount of the debts, residence of creditors, whether the debts were secured, and giving no information to a creditor to enable him to ascertain anything in relation to the value of the property assigned, or the amount and bona fides of the debts entitled to share in the proceeds of the property." After pointing out how compliance with the provisions of the statute in question would remedy these evils, the learned judge continued: "but, in case of failure so to comply, the assignment must be adjudged void. This construction will render these sections efficient in suppressing fraud, while that adopted by the supreme court [holding these provisions directory] renders them almost nugatory and useless." "To make," says Cassoday, J., "a voluntary assignment for the benefit of, or in trust for, creditors, valid as against the creditors of the person making the same, it is essential that all the requirements of the statutes should be substantially com |