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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 1. 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 Jsinn. 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, $ 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 Phras. Costs

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

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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 Rev. 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, § 1932, 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. S 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. Hatch v. Bushy, 59 Atl. 422, 423, 77 Conn. providing that the affidavit of service on the

Under the statute (Code Civ. Proc. $ 2396), 347.

mortgagor of notice of foreclosure sale by Luggage

advertisement “may” be made by the person

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 pas." senger wbile 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 erery 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. 315), 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

of dishonor of a note may be in writing or Marriage ceremony

oral, and section 5936 requires such notice, In Comp. St. 1907, c. 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 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 term 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”

confirm the lease by an order binding on all

Kan. 667.

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 the common and approved use of language. powers of the trustee, so that a five-year Held, that a nonresident alien is not absolease executed in 1900 by a trustee of the lutely disqualified from serving as executor, life beneficiary containing an option for re- but his nonresidence is ground for the exernewal was enforceable against the trustee cise of a discretion in the probate judge in and could not be construed as though it the matters of appointing him or revoking read: "A trustee shall not execute and de his letters, and the word "may" should not liver a lease of such real property for a term be held to mean “shall." Breen v. Keboe, exceeding five years without application to 105 N. W. 28, 29, 142 Mich. 58, 1 L. R. A. the court.” Weir v. Barker, 93 N. Y. Supp. (N. S.) 349, 113 Am. St. Rep. 558. 732, 734, 104 App. Div. 112.

Proceedings against insolvent debtor Private way

The word “muy" is used ordinarily Pub. St. 1882, c. 189, 20, provides that as a word of permission, rather than of a party desiring to have a private way laid command. Bankruptcy Act (Act U. S. 1898, out shall file a petition with the county com- c. 541, 8 11), providing that a suit founded on missioners. Section 25 provides that, when a claim from which a discharge would be a the premises are situated entirely in one release, pending against a person when a town, the petition may be made to the select- petition is filed against him, shall be stayed men, or mayor and aldermen, thereof. The until after an adjudication or dismissal of word “may,” in the last section, does not the petition, and, if he is adjudged a bankmean “must.” Eldredge v. Norfolk County rupt, such action may be further stayed until Com’rs, 70 N. E. 36, 37, 185 Mass. 186.

12 months after the adjudication or until the Probate proceedings

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. adjudication should be peremptory, the use D. C. 140, 145.

of the word "shall" instead of "may" would

have made its meaning clear. Rosenthal v. The power of modification or revocation Nove, 56 N. E. 884, 885, 175 Mass. 559, 78 conferred by Gen. St. 1902, § 203, providing

Am. St. Rep. 512. 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, 8 parte, before any appeal therefrom, and, ir 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 ap- as 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.

Proceedings relating to school districts The word "may," as used in West Vir

Acts 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, be thereafter created having an area of less shall apply for administration, there may be than 16 square miles or more than one school a grant of probate or administration in like for white children and one for colored chilmanner as if the former grant had not been dren for each 16 square miles of territory or made, means "must." Butcher v. Kunst, 64 major fraction thereof, except that the comS. D. 967, 971, 65 W. Va. 384 (quoting Hutche missioners “may” reduce the area of any son v. Priddy, 12 Grat. [53 Va.] 85).

common school district and create sucb adComp. Laws 1897, § 9310, provides that, ditional districts as may be necessary, prowhen a will shall have been duly proved and vided that no district shall be reduced to allowed, the probate court shall issue letters contain less than 9 square miles of territory, testamentary to the person named executor and that no new district shall thereafter be therein, if he is legally competent, and shall created having a less area than 9 square accept the trust and give bond. Section 9317 miles, and that the area of school districts provides that if an executor shall reside out having an outstanding bonded indebtedness of the state, or shall neglect to render his shall not be reduced until after such indebtaccount or perform any decree of the court, edness has been fully discharged. Held, that or abscond, etc., the probate court “may” re- the word “may," as so used, did not confer move such executor. Section 50, subd. 1,'a mere discretion, but imported an imper


ative obligation, and hence a division of a , etc., the duty of the city to make the award county in such a manner as to place in the in such case is mandatory. Clark v. City of district containing the county seat 200 sec- Elizabeth, 40 Atl. 616, 622, 61 N. J. Law, 565 tions of land, making that district 20 miles (citing and adopting Maxwell, Interp. of St. long, and including the best of the lands in 218, 219, Board of Sup'rs of Rock Island the county, when the territory did not ex- County v. United States ex rel. State Bank, ceed 60 scholastics in number, and giving to 4 Wall. 435, 446, 18 L. Ed. 419). no other district more than 35 sections of

Civ. Code 1902, § 1381, provides that the land, constituted an illegal exercise of power county supervisor “may" advertise for "bids which was subject to review by the courts. for working highways by contract.” Held to McLaughlin v. Smith, 148 S. W. 288, 289, 105 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 to advertise for bids in county newsed as synonymous with “must,” as, for in- papers for the paving of streets. Dillingstance, where public officers are authorized ham v. City of Spartanburg, 56 S. E. 381, to perform an act for the benefit of the pub- 382, 75 S. C. 549, 8 L. R. A. (N. S.) 412, 117 lic or for an individual who has a right to Am. St. Rep. 917, 9 Ann. Cas. 829 (citing its performance. In the statute relating to Minor v. Mechanics' Bank, 1 Pet. [26 U. S.] school district meetings, which provides spe- 46, 7 L. Ed. 47). cial meeting may be called by the district

The Vrooman Act (St. 1885, p. 147, C. board or upon a petition signed by ten resi- 153), as amended by St. 1905, p. 63, c. 67, dent taxpayers of the district, the word provides that whenever a contemplated im"may" is used in its permissive sense. The

provement in the opinion of the city council word should always be given its ordinary is of more than local or ordinary public meaning, unless the other terms and provi- benefit, or whenever the total estimated costs sions of the statute compel the other view. exceed one-half the total assessed value of State v. School Dist. No. 1, Edwards County, the lots fronting on such proposed work, the 103 Pac. 136, 80 Kan. 667 (quoting Phelphs city council “may” make the expense chargev. Lodge, 55 Pac. 840, 60 Kan. 122).

able on a district. As originally drawn, the Proving ownership of estray

act required the trustees of the city to order In Rev. Codes 1899, § 1575, providing payment of a portion of the expense from the that the person taking up an estray and the city treasury if the estimated cost of the imclaimant of the property may go before a provement exceeded one-half the assessed justice of the peace have determined the

value of the property. St. 1889, pp. 159, rights of the parties, the use of the word 160, 170, c. 151, amended the act so as to “may” is not decisive of the meaning of the

confer discretionary power on city councils.

The amendments of 1891 (St. 1891, p. 196 statute, and the word “may” will be construed to mean "sball,” when the context or

et seq., c. 147) are similar in this respect. purpose of the statute requires it. It was Held, that the Legislature intended to conthe object of the section to provide a conven

fer a wide discretionary power, and that the ient and speedy method of proving ownership word “may” would not be construed to mean and at the same time protect the person "shall," so as to require the expense of a holding the estray from liability for errone

street improvement to be made chargeable ous decision as to ownership. Mills v. For on a district where the estimated cost extune, 105 N. W. 235, 236, 14 N. D. 460.

ceeds one-half the assessed value of the lots

fronting on the proposed work. Ostrander Public improvements

v. City of Richmond, 101 Pac. 452, 453, 155 The word "may," as used in 1 Starr. & Cal. 468. C. Am. St. (2d Ed.) p. 858, c. 24, par. 430, St. 1898, c. 40a, subc. 42, § 925—223, proproviding that a sidewalk ordinance may re- vides that when a city council shall order quire all owners of abutting lots to construct paving or repaving of a street in which gas, a sidewalk in front of their respective lots, water mains, or sewers have been previously etc., should be read "shall.” Pierson v. Peo- laid, the council “may” require service pipes ple, 68 N. E. 383, 386, 204 Ill. 456.

to be first laid to the curb line, and that no “Words which, in their ordinary accep street shall be paved or repaved by order of tation, and when interpreted exclusive of the council unless the water, gas mains, servthe context and the subject-matter, imply a ice pipes, necessary sewers, and connections discretion or power, such as ‘may,' 'it shall shall, as required by the council, be first laid be lawful,' and the like, become, in the con- | in that portion of the street so to be paved struction of statutes, mandatory, where such or repaved. Held, that the word “may” is the legislative intent.” Under a statute should be treated as permissive and not manproviding that, on making changes of a datory, and that a city council therefore had street, it shall be lawful for the municipal power to order the paving of a street with.' authorities in any such city to make or cause out requiring water, gas, service pipes, and to be made a proper award for damages, sewer connections to be laid before the pave

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