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.

Calling family meeting

Under article 1341 of the Civil Code, referring to the family meeting to be held to fix on behalf of minors the terms of sale, and providing that, at the instance of the tutors and curators of such minors, the judge may call a family meeting, the fact that the judge "may" at the instance of the tutors and curators, call the meeting was not intended as excluding authority in the judge to do so at the instance of other parties in interest or of his own motion. Tobin v. United States Safe Deposit & Savings Bank, 39 South. 33, 35, 115 La. 366.

Detachment of municipal territory

A statute providing for detaching unplatted land from the corporate limits of a city, which provides that, if the court shall find the existence of the necessary facts and conditions, it "may" grant the decree, "falls within the rule that, whenever public interests or individual rights call for the exercise of a power given to courts or other public officers, the language used in conferring the power, although permissive in form, is in effect mandatory." Hunter v. City of Tracy, 116 N. W. 922, 924, 104 Minn. 378. Dismissal of action

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

Under a statute providing that the guardian ad litem for an infant party "may" be allowed compensation for his services and necessary expenditures in litigation, to be fixed by the court, and to be paid out of the body of the estate or property in controversy, if the infant has no available property out of which such payment can be directed by the court, the word "may" should not be construed as "must," but should be held to confer on the court a broad discretion as to whether an allowance should be made and to what extent. In re McNaughton's Will, 118 N. W. 997, 1004, 138 Wis. 179.

The general rule that, where public authorities are authorized to perform an act for the benefit of the public, or for an individual who has a right to its performance, the word "may" is interpreted as meaning "must" has no application to Gen. Laws 1901, § 3024, providing that county treasurers shall be allowed by the board of county commissioners of their respective counties, as full compensation for their services for the county, the following salaries, etc., provided, that the county commissioners "may" allow the following sum or as much as they deem necessary for clerk hire, where a county treasurer employed a deputy to assist him, as the question of public benefit through an appropriation for clerk hire can be determined by nobody but the board of county commissioners. Roth v. Board of Com'rs of Ness County, 77 Pac. 694, 69 Kan. 667 (citing Phelps v. Lodge, 55 Pac. 840, 60 Kan. 122).

Costs

The word "may," as used in New York Code Civ. Proc. § 3247, making the person beneficially interested, in an action brought, liable for costs to the same extent as if plaintiff, and providing that, where costs are awarded against plaintiff, the court may by order direct the person so liable to pay them, means the same thing as the word "shall," and the liability of the person beneficially interested for costs is absolute. Nelligan v.

Legislative intent determines whether it is directory or mandatory. According to its natural and usual signification, the word 'may' is enabling and permissive only, and so it must be interpreted where no right of or benefit to the public, nor right of persons other than the one upon whom the permission is conferred, depends upon giving to it the obligatory meaning; but the word is interpreted to mean 'shall' or 'must' whenever the rights of the public or of third persons depend upon the exercise of the power or performance of the duty to which it refers. In those cases where the public or persons possess the right to require that the power conferred by the word 'may' be exercised, the word is imperative and mandatory, being the equivalent of

'shall' or 'must.'" Code Civ. Proc. Mont.

1895, § 1004, subd. 6, providing that an action "may" be dismissed by the court, when, after verdict or final submission, the party entitled to judgment neglects to demand and have it entered for more than six months, is mandatory. State ex rel. Stiefel v. District Court, 96 Pac. 337, 338, 340, 37 Mont. 298 (quoting and adopting definition in Montana Ore Purchasing Co. v. Lindsay, 63 Pac. 715, 25 Mont. 24).

Divorce

The word "may," as used in section 13, c. 64, Code 1906, providing that in certain cases, where divorce from bed and board is decreed, an absolute divorce "may" be granted after certain requirements are fulfilled, means "shall." Chapman v. Chapman, 74 S. E. 661, 664, 70 W. Va. 522 (citing 5 Words and Phrases, 4420).

Enforcing orders of commission

In a statute providing that the orders of a commission "may" be enforced by mandamus, and that, upon proof that an order has been made and has not been complied with after notice thereof, the court "may" issue a mandamus to enforce it, the word "may" means "must." Trustees of Village of Saratoga Springs v. Saratoga Gas, Electric Light & 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).

Innholder's license

An innholder's license, granted in May instead of the month of April, is valid; the

provisions of Rev. Laws 1902, c. 100, § 12, and chapter 102, § 4, providing that licenses "may" be granted in April, to take effect on the 1st of May, being directory. Cheney v. Coughlin, 87 N. E. 744, 745, 747, 201 Mass.

204.

Insurance

Rev. St. 1898, § 1952, provides that life insurance companies whose members are entitled to share in the surplus cumulations "may" make distribution thereof annually or once in two, three, four, or five years, and in determining the amount of surplus to be distributed there "shall" be reserved an amount equal to the net value of the outstanding policies. The section is the same as Laws 1870, p. 107, c. 59, § 14, the purpose of which, as appears from instructions to the legislative committee which reported the bill, was to afford proper "protection to policy holders" by safeguard against insolvency of insurance companies by requiring the cumulation of the reserve fund. Held, that the use of the word "shall" in the section in relation to the reserve fund is imperative, while "may" in relation to distribution of the surplus is permissive, and having been so construed by the state officials and insurance companies for more than 30 years, the license of an insurance company will not be revoked for deferring the distribution of the surplus more than five years. Equitable Life Assur. Soc. v. Host, 102 N. W. 579-584, 124 Wis. 657, 4 Ann. Cas. 413.

Jury trial

Rev. Laws, c. 189, § 16, in its literal wording plainly leaves the option of a jury trial to the discretion of the court. But when read in connection with its legislative origin, supplemented by the practice that prevailed under the original statute, if a jury trial is seasonably claimed, "may" should be construed to mean "shall." Hubbard v. Lamburn, 75 N. E. 707, 709, 189 Mass. 296.

The word "may," in the borough act of April 24, 1897 (P. L. p. 291), providing that in all cases where a fine or penalty shall exceed $20, etc., there may be a trial by jury, is mandatory in effect, and not permissive only. Borough of Vineland v. Denoflio, 65 Atl. 837, 838, 74 N. J. Law, 326.

moral character, his application will be denied. In re Application for License to Practice Law, 67 S. E. 597, 601, 67 W. Va. 213.

In Rev. Codes, § 1342, as amended by Laws 1909, p. 192, providing that the board of medical examiners may, either with or without examination, grant a license to any physician licensed to practice by a similar board of any other state, who holds a certificate of registration showing that an examination has been made by the proper board of any state in which an average grade of not less than 80 per cent. was awarded, and who is the holder of a diploma from a medical college in good standing, the word "may" is not to be construed as equivalent to "must." Barton v. Schmershall, 122 Pac. 385, 389, 21 Idaho, 562.

The word "may," as used in Revised Amended Greater New York Charter, § 1089 (Laws 1901, p. 1774, c. 718), providing that at the close of a teacher's third year of continuous successful service the city superintendent "may" make a license permanent, is not used in the sense of "must." It is used in a permissive and not a mandatory sense. People ex rel. Finigan v. Board of Education of City of New York, 94 N. Y. Supp. 61, 62, 106 App. Div. 101.

The word "may" in P. L. 1898, p. 122, § 6, as amended by P. L. p. 396, § 2, providing that the State Board of Registration and Examination in Dentistry shall register as licensed dentists all persons who shall successfully pass the examination, and that the board "may" also without examination issue its license to any applicant furnishing satisfactory proof that he has been duly licensed in any state after full compliance with its dental laws, is not synonymous with the word "shall," but is permissive, and whether the board will license an applicant without an examination is discretionary. Saxenmeyer v. State Board of Registration and Examination in Dentistry, 75 Atl. 175, 176, 79 N. J. Law, 427.

Limitations

Comp. Laws 1897, § 2921, provides that if, at any time after the incurring of an indebtedness or liability or the accrual of a cause of action against him or the entry of judgment against him, the debtor shall have been or shall be absent from or out of the territory, the time during which he “may” have been or may be out of the territory shall not be included in computing limitations. 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

License to practice profession

statute is retrospective in operation. Orman v. Van Arsdell, 78 Pac. 48, 49, 12 N. M. 344, 67 L. R. A. 438.

Gen., St. 1902, § 1131, providing that, in case of the death of plaintiff, his executor and administrator "may enter" within six months and prosecute a suit, is not an absolute limitation on the discretionary power of the court to permit an entry to be made after that time upon good cause shown.

Mining

The word "may" is used in a permissive, not a mandatory, sense in Mills' Ann. St. § 3162, providing that the relocator of an abandoned lode claim may sink the original shaft deeper than it was at the time of abandonment. Carlin v. Freeman, 75 Pac. 26, 27, 19 Colo. App. 334.

Mortgage foreclosure

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.

Luggage

Under Wilson's Rev. & Ann. St. 1903, § 709, providing that luggage may consist of any articles intended for the use of a passenger while traveling or for his personal equipment, the term "may" is used in the sense of "must" or "shall." Choctaw, O. & G. R. Co. v. Zwirtz, 73 Pac. 941, 942, 13 Okl. 411.

Marking ballot

Act June 10, 1893 (P. L. 430) § 22, provides that the elector "shall" prepare his ballot by marking a cross above the name of a party if he desires to vote for every candidate of that party, otherwise by a mark opposite the party named. As amended by Act April 29, 1903 (P. L. 345), the section now reads: "If he desires to vote for every candidate of a political party, he may make a cross," etc. Held, that the employment of the word "may" in the amending clause gives no larger privilege as to the way of marking the ballot than the word "shall" in the original clause. Appeal of Dailey, 81 Atl. 655, 656, 232 Pa. 540.

Marriage ceremony

mortgagor of notice of foreclosure sale by advertisement "may" be made by the person making the service, such person alone can make the affidavit. Deutsch v. Haab, 119 N. Y. Supp. 911, 912, 135 App. Div. 756.

Municipal expenditures

It is a familiar doctrine that, where a statute confers a power to be exercised for the benefit of the public or of a private person, the word "may" is often treated as imposing a duty, rather than conferring a discretion. The word, as used in Extra Sess. Acts La. 1877, p. 47, providing that all the revenues of a city of each year shall be devoted to the expenditures of that year, provided that any surplus of said revenues "may" be applied to the indebtedness of former years, is merely permissive as to the surplus, and does not contractually dedicate the surplus of any year to payment of claims of years prior to that year but subsequent to 1877. The word, in such act, is used in special contradistinction to the word "shall." United States v. Thoman, 15 Sup. Ct. 378, 380, 156 U. S. 353, 39 L. Ed. 450.

Notice of dishonor of note

L. O. L. § 5929, provides that the notice of dishonor of a note may be in writing or oral, and section 5936 requires such notice, In Comp. St. 1907, e. 52, § 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 of the public or third persons depend upon the power conferred, or it is necessary, to give effect to the clear intention of the Legislature, that it should be construed as mandatory. Douglas County v. Vinsonhaler, 118 N. W. 1058, 1062, 1063, 82 Neb. 810.

Meetings of board

The word "may," in Gen. St. 1901, § 6122, providing for calling special meetings by a district board or on petition of 10 resident taxpayers, is permissive. State v. School Dist. No. 1, Edwards County, 103 P. 136, 80 Kan. 667.

excuse delay; notice by mail being practicable. Price v. Warner, 118 Pac. 173, 174,

60 Or. 7.

Powers of trustee

Laws 1896, p. 573, c. 547, § 86, provides that a trustee of property during the life of the beneficiary "may" execute a lease of real property for a term not exceeding five years, without application to the court. It is also declared that, if any such trustee has leased property before June 4, 1895, for a longer period than five years, the Supreme Court on the trustee's application "may" confirm the lease by an order binding on all

persons interested in the trust estate. Held, | requires words and phrases used in statutes that the legislative intent in the first provi- to be construed and understood according to sion was to extend rather than restrict the powers of the trustee, so that a five-year lease executed in 1900 by a trustee of the life beneficiary containing an option for renewal was enforceable against the trustee and could not be construed as though it read: "A trustee shall not execute and deliver a lease of such real property for a term exceeding five years without application to the court." Weir v. Barker, 93 N. Y. Supp. 732, 734, 104 App. Div. 112.

Private way

the common and approved use of language. Held, that a nonresident alien is not absolutely disqualified from serving as executor, but his nonresidence is ground for the exercise of a discretion in the probate judge in the matters of appointing him or revoking his letters, and the word "may" should not be held to mean "shall." Breen v. Kehoe, 105 N. W. 28, 29, 142 Mich. 58, 1 L. R. A. (N. S.) 349, 113 Am. St. Rep. 558.

Proceedings against insolvent debtor

The word "may" is used ordinarily as a word of permission, rather than of command. Bankruptcy Act (Act U. S. 1898, c. 541, § 11), providing that a suit founded on a claim from which a discharge would be a release, pending against a person when a

Pub. St. 1882, c. 189, § 20, provides that a party desiring to have a private way laid out shall file a petition with the county commissioners. Section 25 provides that, when the premises are situated entirely in one town, the petition may be made to the select-petition is filed against him, shall be stayed men, or mayor and aldermen, thereof. The word "may," in the last section, does not mean "must." Eldredge v. Norfolk County Com'rs, 70 N. E. 36, 37, 185 Mass. 186.

Probate proceedings

until after an adjudication or dismissal of the petition, and, if he is adjudged a bankrupt, such action may be further stayed until 12 months after the adjudication or until the question of discharge is determined, effects Code, § 141, providing that any person in- a peremptory stay only until the adjudicaterested under any will filed in the office of tion is made, and leaves the further stay the register of wills prior to June 8, 1898, within the discretion of the court in which "may offer the same for probate as a will the action is pending. If Congress had inof real estate," is permissive, and not mand-tended that a further stay in case of an atory. Young v. Norris Peters Co., 27 App. D. C. 140, 145.

adjudication should be peremptory, the use of the word "shall" instead of "may" would have made its meaning clear. Rosenthal v. Nove, 56 N. E. 884, 885, 175 Mass. 559, 78 Am. St. Rep. 512.

The power of modification or revocation conferred by Gen. St. 1902, § 203, providing that any court of probate "may" modify or revoke any order or decree made by it ex The clause in 2 Gen. St. 1895, p. 1728, § parte, before any appeal therefrom, and, if 11, providing that the court "may" direct made before the final settlement thereof, the discharge of an insolvent debtor on makupon the written application of any person ing and filing an assignment of his property interested therein, etc., is one that, on an apas therein provided, is regarded as plication in a prescribed manner, "may," not datory. Compton v. Calvert, 72 Atl. 29, 30, must, be exercised. Appeal of Murdoch, 7277 N. J. Law, 358 (citing Weeks v. Buderus, Atl. 290, 291, 294, 81 Conn. 681, 129 Am. 39 N. J. Law, 448). St. Rep. 231.

man

Proceedings relating to school districts

The word "may," as used in West VirActs 31st Leg. c. 12, § 50, requires county ginia Code 1906, § 3259, providing that if, commissioners, in organized counties not subafter administration is granted to a creditor divided, to divide their counties into convenor other person than a distributee, any dis-ient school districts, so that no district shall tributee, who shall not have before refused, shall apply for administration, there may be a grant of probate or administration in like manner as if the former grant had not been made, means "must." Butcher v. Kunst, 64 S. E. 967, 971, 65 W. Va. 384 (quoting Hutche son v. Priddy, 12 Grat. [53 Va.] 85).

be thereafter created having an area of less than 16 square miles or more than one school for white children and one for colored children for each 16 square miles of territory or major fraction thereof, except that the commissioners "may" reduce the area of any common school district and create such additional districts as may be necessary, provided that no district shall be reduced to contain less than 9 square miles of territory, and that no new district shall thereafter be

Comp. Laws 1897, § 9310, provides that, when a will shall have been duly proved and allowed, the probate court shall issue letters testamentary to the person named executor therein, if he is legally competent, and shall | created having a less area than 9 square accept the trust and give bond. Section 9317 provides that if an executor shall reside out of the state, or shall neglect to render his account or perform any decree of the court, or abscond, etc., the probate court "may" remove such executor. Section 50, subd. 1,

miles, and that the area of school districts having an outstanding bonded indebtedness shall not be reduced until after such indebtedness has been fully discharged. Held, that the word "may," as so used, did not confer a mere discretion, but imported an imper

ative obligation, and hence a division of a county in such a manner as to place in the district containing the county seat 200 sections of land, making that district 20 miles long, and including the best of the lands in the county, when the territory did not exceed 60 scholastics in number, and giving to no other district more than 35 sections of land, constituted an illegal exercise of power which was subject to review by the courts. McLaughlin v. Smith, 148 S. W. 288, 289, 105

etc., the duty of the city to make the award in such case is mandatory. Clark v. City of Elizabeth, 40 Atl. 616, 622, 61 N. J. Law, 565 (citing and adopting Maxwell, Interp. of St. 218, 219, Board of Sup'rs of Rock Island County v. United States ex rel. State Bank, 4 Wall. 435, 446, 18 L. Ed. 419).

ed to advertise for bids in county newspapers for the paving of streets. Dillingham v. City of Spartanburg, 56 S. E. 381, 382, 75 S. C. 549, 8 L. R. A. (N. S.) 412, 117 Am. St. Rep. 917, 9 Ann. Cas. 829 (citing Minor v. Mechanics' Bank, 1 Pet. [26 U. S.] 46, 7 L. Ed. 47).

Civ. Code 1902, § 1381, provides that the county supervisor "may" advertise for "bids for working highways by contract." Held to give such officer discretion, and the city Tex. 330. council of a city under a general charter givPrimarily and as ordinarily used in a stat-ing it the same powers over streets as counute, the word "may" is permissive rather ty officers have over highways is not requirthan peremptory, but it is sometimes regarded as synonymous with "must," as, for instance, where public officers are authorized to perform an act for the benefit of the public or for an individual who has a right to its performance. In the statute relating to school district meetings, which provides special meeting may be called by the district board or upon a petition signed by ten resident taxpayers of the district, the word "may" is used in its permissive sense. word should always be given its ordinary meaning, unless the other terms and provisions of the statute compel the other view. State v. School Dist. No. 1, Edwards County, 103 Pac. 136, 80 Kan. 667 (quoting Phelphs v. Lodge, 55 Pac. 840, 60 Kan. 122). Proving ownership of estray

The

In Rev. Codes 1899, § 1575, providing that the person taking up an estray and the claimant of the property may go before a justice of the peace to have determined the rights of the parties, the use of the word "may" is not decisive of the meaning of the statute, and the word "may" will be construed to mean "shall," when the context or purpose of the statute requires it. It was the object of the section to provide a convenient and speedy method of proving ownership and at the same time protect the person holding the estray from liability for erroneous decision as to ownership. Mills v. Fortune, 105 N. W. 235, 236, 14 N. D. 460.

Public improvements

The word "may," as used in 1 Starr. & C. Am. St. (2d Ed.) p. 858, c. 24, par. 430, providing that a sidewalk ordinance may require all owners of abutting lots to construct a sidewalk in front of their respective lots, etc., should be read "shall." Pierson v. People, 68 N. E. 383, 386, 204 Ill. 456.

"Words which, in their ordinary acceptation, and when interpreted exclusive of the context and the subject-matter, imply a discretion or power, such as 'may,' 'it shall be lawful,' and the like, become, in the construction of statutes, mandatory, where such is the legislative intent." Under a statute providing that, on making changes of a street, it shall be lawful for the municipal authorities in any such city to make or cause to be made a proper award for damages,

The Vrooman Act (St. 1885, p. 147, c. 153), as amended by St. 1905, p. 63, c. 67, provides that whenever a contemplated improvement in the opinion of the city council is of more than local or ordinary public benefit, or whenever the total estimated costs exceed one-half the total assessed value of the lots fronting on such proposed work, the city council "may" make the expense chargeable on a district. As originally drawn, the act required the trustees of the city to order payment of a portion of the expense from the city treasury if the estimated cost of the improvement exceeded one-half the assessed value of the property. St. 1889, pp. 159, 160, 170, c. 151, amended the act so as to confer discretionary power on city councils. The amendments of 1891 (St. 1891, p. 196 et seq., c. 147) are similar in this respect. Held, that the Legislature intended to confer a wide discretionary power, and that the word "may" would not be construed to mean street improvement to be made chargeable "shall," so as to require the expense of a

on a district where the estimated cost exceeds one-half the assessed value of the lots fronting on the proposed work. Ostrander v. City of Richmond, 101 Pac. 452, 453, 155 Cal. 468.

St. 1898, c. 40a, subc. 42, § 925-223, provides that when a city council shall order paving or repaving of a street in which gas, water mains, or sewers have been previously laid, the council "may" require service pipes to be first laid to the curb line, and that no street shall be paved or repaved by order of the council unless the water, gas mains, service pipes, necessary sewers, and connections shall, as required by the council, be first laid in that portion of the street so to be paved or repaved. Held, that the word "may" should be treated as permissive and not mandatory, and that a city council therefore had power to order the paving of a street without requiring water, gas, service pipes, and sewer connections to be laid before the pave