enabling Act is expressed in the maxim, Expressio unius est exclusio alterius. "If there be any one rule of law clearer than another," said the Judicial Committee in Blackburn v. Flavelle (1882), 7 App. Cas. 634, "it is this, that, where the Legislature have expressly authorized one or more particular modes of dealing with property, such expression always excludes any other mode, except as specifically authorized." Upon a discussion as to whether s. 191 of the Merchant Shipping Act, 1854, 17 & 18 Vict. gave a maritime lien to the master of a British ship for c. 104. disbursements made during a voyage, Lord Watson said, "When a variety of personal and unsecured claims are dealt with in a single clause, and it is expressly declared that one of them shall bear a lien, there arises a strong presumption that a similar privilege is not to attach to the rest; and that presumption cannot be overcome except by very plain implication."(e)

tween absolute

When a statute is passed for the purpose of enabling Difference besomething to be done, and prescribes the way in which it and directory is to be done, it may be either what is called an absolute enactments. enactment or a directory enactment, the difference being, as was explained by the Court in Woodward v. Sarsons (1875), L. R. 10 C. P. 733, 746, that "an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substan-] tially;" i.e., that the act permitted by an absolute enactment is lawful only if done in accordance with the conditions annexed to the statutory permission. If an absolute enactment is neglected or contravened, a court of law will treat the thing which is being done as invalid and altogether void, but if an enactment is merely directory it is immaterial, so far as relates to the validity of the thing which is being done, whether it is complied with or not. Thus, in Bowman v. Blyth (1856), 7 E. & B. 26, it appeared that by 26 Geo. 2, c. 14, s. 1, the justices in quarter sessions are empowered to alter the table of fees, and, "after the same shall have been approved by the

(e) Hamilton v. Baker (1889), 14 App. Cas. at p. 217.

S

.

justices at the next succeeding general quarter sessions," it shall be valid and binding on all parties. The justices of Norfolk accordingly made a new table of fees at the June quarter sessions, and submitted it for approval at the next (i.e., October) quarter sessions, but at the October quarter sessions the question of approving it was adjourned to the Epiphany sessions. Consequently, it was held that the table of fees was invalid. "The Legislature," said the Court (p. 45), "have given a limited power of approval to one particular sessions only, viz., that next holden after the making of the table of fees. This table was not so approved, and therefore we think that it is not in force." So, in R. v. Loxdale (1758), 1 Burr. 445, it appeared that five overseers had been appointed to act for a certain parish, whereas by 43 Eliz. c. 2, it was enacted that only four, three, or two overseers may be appointed. The Court accordingly declared the appointment invalid. "Justices," said Lord Mansfield, "have no power to appoint overseers but by the special authority given them by Act of ParliaTherefore, this special authority must be strictly pursued, and cannot be exceeded by them."(f) So, with regard to the creation of a highway, it was pointed out by Brett J., in Cubitt v. Maxse (1874), L. R. 8 C. P. 704, at p. 715, that, if an Act of Parliament is passed for that purpose, the provisions of such an Act must be strictly followed, or the creation will not take place." And in Thwaites v. Wilding (1883), 12 Q. B. D. 4, at p. 5, Brett, M.R., said of the Lodgers' Goods Protection Act, 1871 (34 & 35 Vict. c. 79): "The words of the statute are imperative. It is said that the construction in favour of the defendants will render the statute ineffectual to protect lodgers. I do not think so; the Legislature has imposed conditions, and these conditions must be rigidly complied with in order to deprive the landlord of his remedy at common law and to bring the lodger within

ment.

(f) Similarly, in R. v. Cousins (1864), 4 B. & S. 849, it was held that the appointment of one overseer (instead of four, three, or two) was invalid.

the protection of the statute."

But, on the other hand,

if a statute is merely directory, it is, as we have said, immaterial, so far as relates to the validity of the thing to be done, whether the provisions of the statute are accurately followed out or not. Thus, in R. v. Lofthouse (1866), L. R. 1 Q. B. 443, it appeared that by 11 & 12 Vict. c. 63, s. 24, it is enacted that, for the purpose of electing a local board of health, "the chairman shall cause voting papers in the form in schedule A." to be distributed among the persons entitled to vote. Voting papers, however, were distributed which were not precisely in the form given in schedule A., as the column for the number of votes was left in blank. It was argued that this omission vitiated the voting papers and made the election void, but it was held that it did not. The validity of the election, said Blackburn, J., "depends upon whether the insertion of the number of votes is a condition precedent to the validity of a voting paper, or, in other words, whether the requirement of the statute on this head is obligatory. I think the omission does not vitiate the voting paper."

rule as to

solute and

ory.

It being, then, well settled that the neglect of the No general requirements of an Act which prescribes how something when enabling is to be done will invalidate the thing which is being Acts are abdone, if the enactment be absolute, but not if it be merely when directdirectory, we have now to consider whether there is any general rule as to when an enactment is to be considered absolute and when merely directory, with the exception of "provisions with respect to time" (which, said Grove, J., in Barker v. Palmer (1881), 8 Q. B. D. 10, "are always obligatory, unless a power of extending the time is given to the Court"). There is no general rule as to this, for while on the one hand we find that enactments expressed in negative and prohibitory language are not universally considered as being absolute, on the other hand enactments expressed in merely affirmative language have sometimes been held to be so. This was plainly stated by Lord Campbell in Liverpool Bank v. Turner (1861), 30 L. J. Ch. 380, with regard to enactments expressed

Inferences to be drawn from negative lan

guage.

in merely affirmative language. "No universal rule," said he, "can be laid down as to whether mandatory enactments shall be considered directory only or obligatory . . . . but it is the duty of courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed." In Howard v. Bodington (1877), 2 P. D. 203, at p. 211, Lord Penzance, after citing this dictum of Lord Campbell, added as follows: "I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter, consider the importance of the provision [in question], and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory. . . . . I have been very carefully through all the principal cases [in which the question has been raised], but upon reading them all the conclusion at which I am constrained to arrive at is this, that you cannot glean a great deal that is very decisive from a perusal of these cases. They are on all sorts of subjects. It is very difficult to group them together, and the tendency of my mind, after reading them, is to come to the conclusion [above cited] which was expressed by Lord Campbell in the case of Liverpool Bank v. Turner."(g)

If the requirements of a statute which prescribes the manner in which something is to be done be expressed in negative language, that is to say, if the statute enact that it shall be done in such a manner and in no other manner, it has been laid down that those requirements are in all

(g) Sedgwick (Statutory Law, 2nd ed. pp. 318-24) considers that "the practice of sanctioning the evasion or disregard of statutes" by treating them as merely directory "has been carried beyond the line of sound discretion." He excuses it, however, on the ground that "strict compliance with all the minute details which modern statutes contain" is impossible, owing to the practical inconveniences likely to result from it, and consequently "sagacious and practical men who desire to free, the law from the reproach of harshness or absurdity" are tempted not to enforce strictly all provisions contained in statutes, but to treat them as being merely directory.

cases absolute, and that neglect to attend to them will invalidate the whole proceeding. In R. v. Leicester (1827), 7 B. & C. 6, it appeared that it was enacted by 54 Geo. 3, c. 84, that the Michaelmas quarter sessions shall be held in the week next after October 11. The question was whether this statutory enactment as to the time when they were to be held was absolute or merely directory, and it was held to be merely directory. "It has been asked," said Lord Tenterden, "what language will make a statute imperative if 54 Geo. 3, c. 84, be not so. Negative words would have given it that effect, but those used are in the affirmative only." But it does not appear | that this can be laid down as an universal rule.(h) At all events, it has been held on several occasions that enactments prescribing the formalities which are to be observed in solemnising a marriage are not absolute, although expressed in negative and prohibitory language, and that neglect of these formalities does not invalidate the marriage. Thus, in Catterall v. Sweetman (1845), 9 Jur. 951, it appeared that it was enacted by a colonial Act, "that no such marriage as aforesaid shall be had and solemnised until one or both of such persons [i.e., Presbyterians or Catholics], as the case may be, shall have signed a declaration in writing," and the question was whether a marriage solemnised without the declaration in writing being signed was valid or not. "The words in this section," said Dr. Lushington, "are negative words, and are clearly prohibitory of the marriage being had without the prescribed requisites, but whether the marriage itself is void. . . . is a question of very great difficulty. It is to be recollected that there are no words in the Act rendering the marriage void, and I have sought in vain for any case in which a marriage has been declared null and void unless there were words in the statute

(h) In Mayor of London v. R. (1848), 13 Q. B. 33, note (d), Alderson, B., said, "The words 'negative' and 'affirmative' statutes mean nothing. The question is whether they are repugnant or not to that which before existed. That may be more easily shown when the statute is negative than when it is affirmative; but the question is the same."