The opinion
Dissenting opinion by
Green, C. J.:
I do not concur in the reasoning, or conclusion, of the majority of the court,'and shall briefly state the grounds of my dissent. The question involved in this case is not one of public policy, but simply one of law; and the policy or impolicy of a legislative act is not a question for the courts, but a question for the legislature. Whether it is better to maintain a system of separate schools for white and colored children, or to maintain a system of mixed schools, are questions with which the courts have nothing to do, and should be left entirely to the legislative branch of the government.
It is well said in the majority opinion, that the legislative intent must control in the construction of the act; and so it must; but that intent must be looked for in the act itself and not in the regions of speculation and conjecture outside the act.
Section 4 of the act provides for the appointment of the officers of election as follows:
•‘Not more than twenty days nor less than ten days prior to said election the county commissioners of each county shall appoint in each election precinct in their respective counties two judges and one clerk, whose duty it shall be hold said election: Provided, That at first election, herein provided for, the election precincts be the same as those designated by the Governor in his proclamation calling an election for delegates to congress upon November fourth, one thousand eight hundred and ninety.”
It is conceded' that the judges and clerks of the election, at which the people voted for the maintenance of separate schools for white and colored children, were
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appointed twenty-six days prior to the election; but it is held by the majority of the court that the provision of § 4,
supra,
that “not more than twenty days nor less than ten days prior to said election the county commissioners of each county shall appoint, in each election precinct in their respective counties, two judges, and one clerk, whose duties shall be to hold said election,” is merely directory, and not mandatory; and so it would be if the legislature itself has not made it mandatory.
By § 8 of the act it is provided:
“Any failure to comply with any and all the provisions of this act, shall render such act of establishing separate schools void, and immediately all the children of school age in such county shall be admitted to the school or schools of their respective district.”
Can language be clearer than this with reference to the legislative intent? And we have seen that legislative intent must govern in the construction of the act; and so the majority opinion holds. And the legislature has here declared that
any failure to comply with any and all the provisions of this act
shall render the act of establishing separate schools void. If it is possible for a legislature by the use of words, to declare the provisions of an act mandatory, it has been done in this instance; and the authorities cited in the majority opinion, while good law, have no application in this case.
In McCrary on Elections, an authority cited in the opinion of the majority of the court, the author, states the rule of law, which is in point in the case, in the following clear language:
“While it is well settled, that mere irregularity on the part of election officers, on their omission to observe some merely directory provisions of the law, will not vitiate the poll, there has been some confusion and conflict as to what we are to understand by irregularities, and as to what provisions of statute are to be regarded as directory and what mandatory.
“A few remarks upon this subject will be proper in.
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this connection. The language of the statute to be construed must be consulted and followed. If the statute expressly declares any particular act to be essential to the validity of the election, or that its omission shall render the election void, all courts whose duty it is to enforce such statute, must so hold, whether the particular act in question goes to the merits, or affects the result of the election, or not.
“Such a statute is imperative, and all considerations touching its policy or impolicy, must be addressed to the legislature.” (McCrary on Elections, § 190.)
That the legislative will, when clearly expressed, must prevail, is axiomatic in the law; and when the legislature declares, as in this instance, that
any failure
to comply with
any and all the provisions
of the act shall render the establishment of separate schools void, and it is conceded that some of the provisions of the act have not been complied with, it does not lie with the courts to say that the will of the legislature shall not be respected, and that separate schools shall be established whether the provisions of the act have been, complied with or not.