Gambar halaman


meaning if that was the obvious intention. I of Seneca v. Lyman, 53 Pac. 125, 59 Kan. 410; State v. School Dist. No. 1, Edwards County, Cooke v. Spears, 2 Cal. 409, 56 Am. Dec. 348; 103 Pac. 136, 80 Kan. 667.

People ex rel. Chiperfield v. Sanitary Dist. of While the courts have never hesitated to Chicago, 56 N. E. 953, 184 111. 597). construe “may” as “must," or "shall," when In a statute the word “may” may be conthe context and policy of the law demanded strued in a mandatory sense only where such that interpretation, the legislative intention construction is necessary to give effect to the must plainly appear before such judicial clear policy and intention of the Legislature; correction will be made. Ostrander v. City and, where there is nothing in the connection of Richmond, 101 Pac. 452, 453, 155 Cal. 465. of the language or in the sense or policy of

Ordinarily the word “may,” in constru- the provision to require an unusual interpreing the statute, is permissive, but it is often tation, its use is merely permissive and disconstrued to be mandatory, and generally so cretionary. Where, by the use in other prowhen it is employed to delegate a power, the visions of the statute of the word “shall” or exereise of which is important for the protec-“must,” it appears that the Legislature intion of public or private interests. Queeny tended to distinguish between these words F. Higgins, 114 N. W. 51, 136 Iowa, 573.

and "may," "may" will not be construed as

imperative. Carlin v. Freeman, 75 Pac. 26, The word "may" in a statute will be con- 27, 19 Colo. App. 334. strued to mean "shall,” whenever the rights of the public or third parties depend on the Adoption of by-laws exercise of the power or duty to which it re- The word "may," as used in Hurd's Rev, fers, and such is its meaning in all cases / Stat. 1903, p. 473, $ 6, providing that the diwhere public interests and rights are concern- rectors or managers of a corporation “may ed, or a public duty is imposed on public offi- adopt by-laws for the government of the officers, and the public or third persons have a cers and affairs of the company," means claim de jure that the power shall be exer- "must"; the words “may” and “shall" are cised. Binder v. Langhorst, 85 N. E. 400, 402, frequently used interchangeably in order to 234 Ill. 583.

express the legislative intent; and one may Where neither the clear intent of the be used for the other, if, by so doing, the

be determined. Legislature for public policy requires that legislative intention the language of a statute shall be given a

Manufacturers' Exhibition Bldg. Co. y. Lanmandatory construction, the word "may" day, 76 N. E. 146, 148, 219 Ill. 168 (citing therein is not equivalent to "must.” Town Wabash, St. L. & P. Ry. Co. v. Binkert, 106 of Hempstead v. Lawrence, 122 N. Y. Supp.

Ill. 298). 1037, 1040, 138 App. Div. 473.

Appointment to office Words like "may," "must," "shall," etc., As used in Laws 1903, p. 202, c. 113, § 4, are constantly used in statutes without in providing that city government shall be vesttending that they shall be taken literally, and ed in a mayor and council, to consist of five in their construction the object evidently de- members, a clerk, treasurer, marshal, and posigned to be reached limits and controls the lice judge, who “may” be one of the justices literal import of the terms and phrases em- of the peace of the precinct in which the ployed. Fields v. United States, 27 App. D. town is situated, the word “may” should not C. 433, 440.

be construed to mean "shall” or “must." The word “may” ordinarily denotes per- Hence the mayor of a city of the third class mission and not command. But where used

was not limited to the elected justices of the in a statute concerning the public interest, or peace for his selection of a police justice. affecting the rights of three persons, it will State ex rel. Purdin v. Gault, 105 Pac. 242, be construed to mean "must" or "shall." | 243, 56 Wash. 140 (citing 5 Words and Georgia, F. & A. R. Co. v. Sasser, 60 S. E. Phrases, p. 4420). 997, 130 Ga. 394 (citing Birdsong v. Brooks, The word "may,” as used in Bankr. 7 Ga. 88; Weems v. Farrell, 33 Ga. 419). Act July 1, 1898, c. 541, $ 45, providing that

In construing statutes, the term, "may" | trustees may be (1) individuals who are remay be considered as mandatory and as

spectively competent

and reside meaning “shall" or "must," and "shall" or

in or have an office in the judicial district "must" may be construed as directory only within which they are appointed, or (2) corin order to effectuate the legislative intent. porations

having an office in the In re Chadbourne's 'Estate, 114 Pac. 1012, judicial district, etc., is equivalent to "shall," 1014, 15 Cal. App. 363 (citing Estate of Bal in the sense that the section allows a trustee lentine, 45 Cal. 699; Hayes v. County of Los to be chosen from but two classes, viz., perAngeles, 33 Pac. 766, 99 Cal. 74; Suth. St.

sons of a certain sort or corporations, making Const. 634; Wallace v. Feeley (N. Y.] 61 the provisions mandatory. In re Seider, 163 How. Prac. 225; Merrill v. Shaw, 5 Minn.

Fed. 138. 148 (Gil. 113]; In re Thurber's Estate, 56 Ky. St. $ 4313, providing that the fiscal N. E. 631, 162 N. Y. 244; Stone v. Pratt, 35 court of any county wherein the roads are N. Y. Supp. 519, 90 Hun, 39; First Nat. Bank' worked by taxation "may,” at its first regu

3 Wds.& P.2D SER.-22

lar term after the act takes effect, and every where there is nothing in connection with the two years thereafter, appoint a supervisor of language nor in the sense or policy of the roads, does not make the appointment of the provision to require an unusual interpretasupervisor mandatory, but leaves the matter tion, its use is merely permissive and discreto the discretion of the fiscal court, which i tionary.” B. & C. Comp. $ 5362, provides discretion cannot be controlled by mandamus. that mortgages “may” be assigned by an O'Connor v. Weissinger, 134 S. W. 1127, 1129, instrument in writing, and recorded, etc. 142 Ky. 452.

Section 5367 provides that a note secured by. The word "may,” as used in Civ. Code a mortgage on real property can be transferPrac. $ 298, providing that the appointment red by indorsement, and, if the mortgage was of a receiver “may” be done on motion of a recorded, the same, on payment of the note, party to an action who shows a right to the may be transferred of record by the owner property involved, and that it is in danger of of the note by proving the fact to the satisbeing lost or removed, is not equivalent to faction of the recorder, and delivering the "must.” McClure v. McGee, 108 S. W. 341, note to such officer. Section 5368 provides 342, 128 Ky. 464.

that no mortgage shall be satisfied except Richards Primary Bill (Laws 1911, c. be the owner thereof. Held, that the use

by the person appearing on the records to 201) $ 112, provides that any party elector of the word "may,” in section 5362, showed wishing to become a candidate for an ap- a design not to repeal section 5367; the acpointįve government position may file his tion simply prescribing, in section 5368, the written application for the official party in method for recording assignments by sepadorsement with the secretary of state after rate writings. Barringer v. Loder, 81 Pac. any primary election date and before the fol- 778, 780, 47 Or. 223. lowing general election date. Section 113 requires the secretary of state to keep a record

Authorizing suit of such applications, and prepare and mail The word "may,” used in Code Civ. Proc. lists thereof, within 10 days after the gen-8 732, providing that any person aggrieved eral election date, to each member of the by waste may bring an action therefor, is party state central committee. Section 114 not a mandatory term, except when it is conrequires the party state central committee strued to mean "must"; and it is never thus to meet on the second Tuesday of December construed where there is nothing in the conto determine who shall receive the official nection of the language or in the sense or party indorsement for appointive positions, policy of the provision to require an unusual and certify such indorsement to the appoint- interpretation. Isom v. Rex Crude Oil Co., ing officer and the secretary of state. Held, 74 Pac. 294, 140 Cal. 678. that the provision of section 112 that any In Act April 10, 1879 (P. L. 17) & 5, procandidate may file his application before the viding that in case of nonpayment of installgeneral election date is mandatory, and a ments of stock, premiums, dues, or interest party committee cannot give the official party by borrowing stockholders for six months, indorsement to a candidate filing his applica- their payment may be enforced by proceeding tion after the general election, or who files on their securities according to law, the word no application, since the provisions of the “may” should be construed as a word of perlaw are not for the benefit of candidates, mission. Workingman's Loan & Building but to promote and protect the public wel. Ass'n of Altoona v. Heaton, 82 Atl. 78, 80, fare; and “may” means "must" when third 233 Pa. 173. parties or the public have an interest in having the act done authorized by the per

Appeal missive language. State ex rel. Cook v. Pol

"May" should be construed in a mandaley, 139 N. W. 118, 121, 30 S. D. 528.

tory sense in a statute providing that any

person aggrieved by a decision or order of the Assessments on stock

board of school directors may, within 30 days The word "may," as used in Rev. Code, 8 after the rendition of the decision or order, 2750, providing that the directors of any cor- appeal to the county superintendent, and such poration formed or existing under the laws appeal is a condition precedent to the right of of the state, after one-fourth its capital stock a teacher to sue for breach of his contract has been subscribed, may, for the purpose of by the board of directors. Van Dyke v. paying expenses, conducting business, or pay- School Dist. No. 77 of Lewis County, 86 Pac. ing debts, levy and collect assessments upon 402, 403, 43 Wash. 235. the subscribed capital stock thereof, etc., does not mean "must.” Wall v. Basin Min.

The word "may," in Code, $ 254, providCo., 101 Pac. 733, 738, 16 Idaho, 313, 22 L. R. ing that the judge, on accused showing his A. (N. S.) 1013.

inability to pay for a transcript on appeal,

"may" order the same at the expense of the Assignment of mortgage

county, should be read "must," in view of the “In a statute the word 'may can be con- change made in the former statute as embodstrued only in a mandatory sense, where such ied in Code 1888, § 5029, by omitting the construction is necessary to give effect to the words “if in the opinion of the judge justice policy and intention of the Legislature; and,' will be thereby promoted," and the judge

must order the transcript at the expense of Groth, 110 N. Y. Supp. 619, 620, 126 App. Div. the county on accused showing his inability. 444 (citing People v. Board of Sup'rs of OtseState v. Goodsell, 113 N. W. 826, 827, 136 go County, 51 N. Y. 401). Iowa, 445.

Detachment of municipal territory Calling family meeting

A statute providing for detaching unplatUnder article 1341 of the Civil Code, re- ted land from the corporate limits of a city, ferring to the family meeting to be held to fix which provides that, if the court shall find on behalf of minors the terms of sale, and the existence of the necessary facts and conproviding that, at the instance of the tutors ditions, it “may” grant the decree, "falls and curators of such minors, the judge may within the rule that, whenever public intercall a family meeting, the fact that the judge ests or individual rights call for the exercise “may” at the instance of the tutors and cura- of a power given to courts or other public tors, call the meeting was not intended as officers, the language used in conferring the excluding authority in the judge to do so at power, although permissive in form, is in efthe instance of other parties in interest or fect mandatory." Hunter v. City of Tracy, of his own motion. Tobin v. United States 116 N. W. 922, 924, 104 Minn. 378. Safe Deposit & Savings Bank, 39 South. 33,

Dismissal of action 35, 115 La, 366.

“The word 'may' is sometimes permissive Compensation for services and expendi-only; sometimes it is imperative. Legislatures

tive intent determines whether it is directory Under a statute providing that the guar- or mandatory. According to its natural and dian ad litem for an infant party “may” be usual signification, the word 'may' is enabling allowed compensation for his services and and permissive only, and so it must be internecessary expenditures in litigation, to be preted where no right of or benefit to the fixed by the court, and to be paid out of the public, nor right of persons other than the body of the estate or property in controversy, one upon whom the permission is conferred, if the infant has no available property out of depends upon giving to it the obligatory which such payment can be directed by the meaning; but the word is interpreted to court, the word "may" should not be con- mean “shall' or 'must' whenever the rights strued as "must," but should be held to confer of the public or of third persons depend upon on the court a broad discretion as to whether the exercise of the power or performance of an allowance should be made and to what the duty to which it refers. In those cases extent. In re McNaughton's Will, 118 N. W. where the public or persons possess the right 997, 1004, 138 Wis. 179.

to require that the power conferred by the The general rule that, where public au- word 'may be exercised, the word is imperathorities are authorized to perform an act for tive and mandatory, being the equivalent of the benefit of the public, or for an individual

'shall' or 'must.'” Code Civ. Proc. Mont. who has a right to its performance, the word 1895, 8 1004, subd. 6, providing that an action “may” is interpreted as meaning "must" has “may” be dismissed by the court, when, after no application to Gen. Laws 1901, § 3024, verdict or final submission, the party entitled providing that county treasurers shall be to judgment neglects to demand and have it allowed by the board of county commis- entered for more than six months, is mandasioners of their respective counties, as full tory. State ex rel. Stiefel v. District Court, compensation for their services for the coun- 96 Pac. 337, 338, 340, 37 Mont. 298 (quoting ty, the following salaries, etc., provided, that and adopting definition in Montana Ore Purthe county commissioners "may" allow the chasing Co. v. Lindsay, 63 Pac. 715, 25 Mont. following sum or as much as they deem nec

24). essary for clerk hire, where a county treas- Divorce urer employed a deputy to assist him, as The word "may," as used in section 13, c. the question of public benefit through an ap- 64, Code 1906, providing that in certain cases, propriation for clerk hire can be determined where divorce from bed and board is decreed, by nobody but the board of county commis- an absolute divorce “may” be granted after sioners. Roth v. Board of Com’rs of Ness certain requirements are fulfilled, means County, 77 Pac. 694, 69 Kan. 667 (citing "shall.” Chapman v. Chapman, 74 S. E. 661, Phelps v. Lodge, 55 Pac. 840, 60 Kan. 122). 664, 70 W. Va. 522 (citing 5 Words and PhrasCosts

es, 4420). The word "may," as used in New York Enforcing orders of commission Code Civ. Proc. $ 3247, making the person In a statute providing that the orders beneficially interested, in an action brought, of a commission “may” be enforced by manliable for costs to the same extent as if plain- damus, and that, upon proof that an order has tiff, and providing that, where costs are been made and has not been complied with awarded against plaintiff, the court may by after notice thereof, the court “may” issue a order direct the person so liable to pay them, mandamus to enforce it, the word "may" means the same thing as the word "shall," means "must." Trustees of Village of Saraand the liability of the person beneficially in- toga Springs v. Saratoga Gas, Electric Light terested for costs is absolute. Nelligan v.'& Power Co., 107 N. Y. Supp. 341, 366, 122 App. Div. 203 (dissenting opinion of Judge | jection thereto that applicant is not of good Kellogg).

moral character, his application will be de

nied. In re Application for License to PracInnholder's license

tice Law, 67 S. E. 597, 601, 67 W. Va. 213. An innholder's license, granted in May instead of the month of April, is valid; the

In Rev. Codes, $ 1342, as amended by provisions of Rey, Laws 1902, c. 100, $ 12, Laws 1909, p. 192, providing that the board and chapter 102, $ 4, providing that licenses of medical examiners may, either with or “may” be granted in April, to take effect on without examination, grant a license to any the 1st of May, being directory. Cheney v. physician licensed to practice by a similar Coughlin, 87 N. E. 744, 745, 747, 201 Mass. board of any other state, who holds a certi204.

ficate of registration showing that an examin

ation has been made by the proper board of Insurance

any state in which an average grade of not Rev. St. 1898, § 1952, provides that life less than 80 per cent. was awarded, and who insurance companies whose members are en is the holder of a diploma from a medical titled to share in the surplus cumulations college in good standing, the word “may” is “may” make distribution thereof annually or not to be construed as equivalent to “must." once in two, three, four, or five years, and in Barton v. Schmershall, 122 Pac. 385, 389, 21 determining the amount of surplus to be dis- Idaho, 562. tributed there "shall” be reserved an amount

The word "may," as used in Revised equal to the net value of the outstanding poli. Amended Greater New York Charter, $ 1089 cies. The section is the same as Laws 1870, (Laws 1901, p. 1774, c. 718), providing that p. 107, c. 59, $ 14, the purpose of which, as at the close of a teacher's third year of conappears from instructions to the legislative tinuous successful service the city superincommittee which reported the bill, was to tendent “may” make a license permanent, afford proper "protection to policy holders" is not used in the sense of “must." It is used by safeguard against insolvency of insurance in a permissive and not a mandatory sense. companies by requiring the cumulation of the People ex rel. Finigan v. Board of Education reserve fund. Held, that the use of the word of City of New York, 94 N. Y. Supp. 61, 62, “shall” in the section in relation to the re- 106 App. Div. 101. serve fund is imperative, while “may” in relation to distribution of the surplus is per

The word “may” in P, L. 1898, p. 122, missive, and having been so construed by $ 6, as amended by P. L. p. 396, $ 2, providing the state officials and insurance companies

that the State Board of Registration and for more than 30 years, the license of an

Examination in Dentistry shall register as insurance company will not be revoked for licensed dentists all persons who shall sucdeferring the distribution of the surplus more cessfully pass the examination, and that the than five years. Equitable Life Assur. Soc. board “may” also without examination issue v. Host, 102 N. W. 579-584, 124 Wis. 657, 4

its license to any applicant furnishing satisAnn. Cas. 413.

factory proof that he has been duly licensed

in any state after full compliance with its Jury trial

dental laws, is not synonymous with the word Rev. Laws, c. 189, § 16, in its literal “shall,” but is permissive, and whether the wording plainly leaves the option of a jury board will license an applicant without an trial to the discretion of the court. But when examination is discretionary. Saxenmeyer read in connection with its legislative origin, v. State Board of Registration and Examinasupplemented by the practice that prevailed tion in Dentistry, 75 Atl. 175, 176, 79 N. J. under the original statute, if a jury trial is Law, 427. seasonably claimed, “may” should be construed to mean "shall." Hubbard v. Lam

Limitations burn, 75 N. E. 707, 709, 189 Mass. 296.

Comp. Laws 1897, § 2921, provides that The word "may,” in the borough act of if, at any time after the incurring of an April 24, 1897 (P. L. p. 291), providing that indebtedness or liability or the accrual of a in all cases where a fine or penalty shall ex

cause of action against him or the entry of ceed $20, etc., there may be a trial by jury, 1 judgment against him, the debtor shall have is mandatory in effect, and not permissive been or shall be absent from or out of the only. Borough of Vineland v. Denoflio, 65 territory, the time during which he “may” Atl. 837, 838, 74 N, J. Law, 326.

have been or may be out of the territory

shall not be included in computing limitaLicense to practice profession

tions. Held, that the use of "may" in conThe right to practice law given by Code nection with “have been" precludes the ap1906, c. 119, is not a de jure right, and the plication of the terms to anything future. word “may” employed therein, in the provi- "They are the equivalent of has been; the sion that the Supreme Court “may on pro-only difference being that in one case the duction of a duly certified copy of the order expression is in the certain or indicative of the county court grant a license,” will not form, and in the other in the contingent or be construed as synonymous with "shall," potential form. They both refer to a conand, where on application it is shown on ob-'dition completed in present time," and the statute is retrospective in operation. Orman Mining v. Van Arsdell, 78 Pac. 48, 49, 12 N. M. 344, The word "may" is used in a permissive, 67 L. R. A. 438.

not a mandatory, sense in Mills' Ann. St. § Gen. , St. 1902, § 1131, providing that, | 3162, providing that the relocator of an abanin case of the death of plaintiff, his executor doned lode claim may sink the original shaft and administrator "may enter" within six deeper than it was at the time of abandonmonths and prosecute a suit, is not an abso-ment. Carlin v. Freeman, 75 Pac. 26, 27, 19 lute limitation on the discretionary power | Colo. App. 334. of the court to permit an entry to be made

Mortgage foreclosure after that time upon good cause shown,

Under the statute (Code Civ. Proc. $ 2396), Hatch v. Bushy, 59 Atl. 422, 423, 77 Conn.

providing that the affidavit of service on the 347.

mortgagor of notice of foreclosure sale by

advertisement “may” be made by the person Luggage

making the service, such person alone can Under Wilson's Rev. & Ann. St. 1903, & make the affidavit. Deutsch v. Haab, 119 N. 709, providing that luggage may consist of Y. Supp. 911, 912, 135 App. Div. 756. any articles intended for the use of a passenger while traveling or for his personal Municipal expenditures equipment, the term “may” is used in the It is a familiar doctrine that, where a sense of "must" or "shall.” Choctaw, 0. statute confers a power to be exercised for & G. R. Co.'v. Zwirtz, 73 Pac. 941, 942, 13 the benefit of the public or of a private perOkl. 411.

son, the word “may” is often treated as im

posing a duty, rather than conferring a disMarking ballot

cretion. The word, as used in Extra Sess. Act June 10, 1893 (P. L. 430) $ 22, pro-Acts La. 1877, p. 47, providing that all the vides that the elector “shall” prepare his bal- revenues of a city of each year shall be delot by marking a cross above the name of a voted to the expenditures of that year, proparty if he desires to vote for every can- vided that any surplus of said revenues didate of that party, otherwise by a mark “may” be applied to the indebtedness of opposite the party named. As amended by former years, is merely permissive as to the Act April 29, 1903 (P. L. 345), the section surplus, and does not contractually dedicate now reads: "If he desires to vote for every the surplus of any year to payment of claims candidate of a political party, he may make of years prior to that year but subsequent to a cross,” etc. Held, that the employment of 1877. The word, in such act, is used in the word “may” in the amending clause gives special contradistinction to the word “shall.” no larger privilege as to the way of mark- United States v. Thoman, 15 Sup. Ct. 378, ing the ballot than the word “shall” in the 380, 156 U. S. 353, 39 L. Ed. 450. original clause. Appeal of Dailey, 81 Atl.

Notice of dishonor of note 655, 656, 232 Pa. 540.

L. 0. L. $ 5929, provides that the notice Marriage ceremony

of dishonor of a not

may be in


oral, and section 5936 requires such notice, In Comp. St. 1907, c. 52, 8. 8, providing where the person giving and the person to that every judge and justice of peace, and receive reside in the same place, to be sent every preacher, authorized by the usages of the day following dishonor, while section the church to which he belongs to solem- 5946 provides that delay in giving notice is nize marriages, may perform marriage cere-excused when caused by circumstances bemonies, the word “may” is mandatory as to yond the control of the holder. Held, that justices of the peace who are given a fee the word “may” in the first section should therefore by section 11, c. 28, but is per- 'be construed as “must," and that the person missive as to clergymen and judges of the giving the notice must give it in writing or higher courts. The ordinary meaning of the orally, and hence the impossibility of giving word “may” is permissive, and it should re- oral notice does not under the last section ceive that interpretation, unless the rights excuse delay; notice by mail being pracof the public or third persons depend upon ticable. Price v. Warner, 118 Pac. 173, 174, the power conferred, or it is necessary, to 60 Or. 7. give effect to the clear intention of the Legislature, that it should be construed as man

Powers of trustee datory. Douglas County v. Vinsonhaler, 118 Laws 1896, p. 573, c. 547, § 86, provides N. W. 1058, 1062, 1063, 82 Neb. 810.

that a trustee of property during the life

of the beneficiary "may" execute a lease of Meetings of board

real property for a termi not exceeding five The word "may," in Gen. St. 1901, 8 years, without application to the court. It 6122, providing for calling special' meetings is also declared that, if any such trustee by a district board or on petition of 10 resi- has leased property before June 4, 1895, for dent taxpayers, is permissive. State v. School a longer period than five years, the Supreme Dist. No. 1, Edwards County, 103 P. 136, 80 Court on the trustee's application “may” Kan. 667.

confirm the lease by an order binding on all


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