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a statute is that no debt or contract thereafter incurred or mado by a municipal corporation shall be binding
unless authorized by law or ordinance, and an appropriation sufficient to pay the same be previously made, it is mandatory, and the power to contract is limited accordingly. The provisions of
" the statute of frauds are another notable instance of mandatory regulations. Where the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other manner, no doubt can be entertained that the command is imperative. The enactinent, for instance, of the metropolitan building act," that the walls of buildings shall be constructed of brick, stone or other incombustible material, though containing no prohibitory words, obviously prohibits by implication and makes illegal their construction with any other. A statute provided that an assignment for the benefit of creditors shall be duly acknowledged by the assignor, and the certificate thereof duly indorsed, before delivery to the assignee; that the assignor at the date of the assignment, or within twenty days thereafter, make and deliver to the judge of the county of his residence a schedule, verified by him, as prescribed by the act, containing a full and true account of all his creditors and their residences, as far as known; the sum owing to each creditor, and the nature of the debt and how it arose; the consideration of the debt and the place where it arose; a statement of any security for any debt, etc. This statute also required a bond from the assignee for faithful performance of the trust. These provisions were held mandatory." State v. Stumpf, 23 Wis 630; In re Grover, J., delivering the opinion of Election of McDonough, 105 Pa. St. the court, said: “In construing these 488. See Dale v. Irwin, 78 Ill. 170, two latter sections, the supreme court and Clark v. Robinson, 88 IIL 498,
applied the rule adopted in where it was held that the negative the construction of statutes, prescribprovision or prohibition was direct ing the time for the performance of
official acts by public officers, in the 1 Bladen v. Philadelphia, 60 Pa. Sto performance of which the public 461.
have an interest. In construing these 2 Endl, on St. $ 431.
latter statutes it is well settled that, 3 18 and 19 Vict. ch. 122, $ 12. where the act prescribes a time for
4 Id.; Stevens v. Gour'ey, 7 C. B. the performance of the act, without (N. S) 99.
anything prohibiting the doing it 6 Juliand r. Rathbone, 39 N, Y. 309, after the time so fixed, the act shall
$ 460. Statutes which are permissive in form.- Where statutes are couched in words of permission, or declare that it
be valid if performed after the time with the requirements of the two prescribed. The reason for this con- following sections, as the judgment struction is that the public, or some may be upheld by the provision that portion thereof, have an interest in the acknowledgment, etc., shall be the performance of the act, and, to made before the delivery of the asprevent injury from the laches of the signment. But in the absence of this, officer, the rule has been adopted. I think the same construction should That class of cases holding that, be given to the clause, which then where the common law confers a would read, every conveyance made right or gives a remedy, and a statute by a debtor in trust for his creditors is enacted conferring a new right or shall be acknowledged. Experience giving a new remedy, it will be so con- has shown that debtors frequently, strued as not to take away the com- with a view to defraud their creditmon-law right or remedy, unless it ors, and make compositions with contains negative words showing that them advantageous to themselves, such was the legislative intent, was made general assignments of all their somewhat relied on; neither class is property in trust for creditors, giving analogous to the present statute. The no information of the character, sitacts to be performed are by private uation or value of the property aspersons, not public officers. The act signed, or the amount of the debts, creates no new right or remedy, but residence of creditors, whether the is designed to regulate an existing debts were secured, and giving no right merely. In construing such information to a creditor to enable statutes the common-law rule, as laid him to ascertain anything in relation down by the elementary writers, is to to the value of the property assigned, consider, first, what mischief, if any, or the amount and bona fides of the resulted from the exercise of the com- debts entitled to share in the promon-law right: second, what is the ceeds of the property.” After pointremedy provided by the statute for ing out how compliance with the such mischief; third, to give the provisions of the statute in question statute such construction, if practi- would remedy these evils, the learned cable, as will suppress the mischief judge continued: “buty
' in case of and make the remedy efficient. Ap- failure so to comply, the assignment plying the rule to the present statute must be adjudged void. This conthe mischief to be remedied is ob- struction will render these sections vious: to prevent pretended assign- efficient in suppressing fraud, while ments being made obstacles in the way that adopted by the supreme court of creditors. The first section pro- [holding these provisions directory] vides that it shall be acknowledged, renders them almost nugatory and and the proof thereof certified before useless.” “To make,” says Cassoday, delivery. This court has held (Hard- J., “a voluntary assignment for the mann v. Bowen, 39 N. Y. 196) that an benefit of, or in trust for, creditors, assignment delivered without such valid as against the creditors of the acknowledgment and certificate is person making the same, it is essenvoid. This does not necessarily de- tial that all the requirements of the termine the effect of non-compliance statutes should be substantially com
shall be lawful to do certain things, or provide that they may be done, their literal signification is that the persons, official or otherwise, to whom they are addressed are at liberty or have the option to do those things or refrain, at their election. Where it was provided that the capital stock of a bank might consist of a certain sum, the provision was held discretionary and not imperative.' Story, J., said: “The argument of defendants is, that 'may' in this section means "must,' and reliance is placed upon a well-known rule in the construction of public statutes where the word ‘may' is often construed as imperative. Without question such a construction is proper in all cases where the legislature means to impose a positive and absolute duty, and not merely to give a discretionary power. But no general rule can be laid down upon this subject further than that the exposition ought to be adopted in this as in other cases which carries into effect the true intent and object of the legislature in the enactment. The ordinary meaning of the language must be presumed to be intended, unless it would manifestly defeat the object of the provisions." The words in a statute, "it shall be lawful," of themselves, merely make that legal and possible which there would otherwise be no right or authority to do. Their natural meaning is permissive and enabling only. But there may be circumstances which may couple the power with a duty to exercise it. It lies upon those who call for the exercise of the power to show that there is an obligation to comply. The lord chancellor said: “The words it shall be lawful' confer a faculty or power, and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to ex
plied with.” Shakman v. Schlueter, I Minor v. Mechanics' Bank, 1 Pet. 46 N. W. Rep. 542, 77 Wis. citing 46. Fuhrman v. Jones, 68 Wis. 497; Clark 2 Julius v. Lord Bishop of Oxford, v. Lamoreux, 70 id. 508; Hanson v. L. R. 5 App. Cas. 214. Dunn, 76 id. 455.
ercise that power when called on to do so. Whether the power is one coupled with a duty such as I have described is a question which according to our system of law, speaking generally, it falls to the court of queen's bench to decide, on an application for a mandamus. And the words it shall be lawful,' being according to their natural meaning permissive and enabling only, it lies on those, as it seems to me, who contend that an obligation exists to exercise this power, to show in the circumstances of the case something which, according to the principles I have mentioned, creates this obligation.” i
$ 461. On an indictment against church wardens for net making a rate to reimburse the constables, the statute appears to have used the words“ may make a rate,” but it was naturally held that the constables were entitled to be reimbursed, and that the church wardenis, being made the depositaries of a power for that purpose, could not refuse to exercise it.? Rex v. Havering Atte Bower was the case of a mandamus in reference to the power granted by royal charter to the steward and suitors of a manor, giving them authority to hear and determine civil suits. It was held that this was in effect the establishment of a court for the public benefit, and that the steward and suitors of the manor were bound to hold the court. In Macdougall v. Paterson the question was
* whether the plaintiff in a county court action who had recovered his debt should not have his costs taxed and allowed in a particular way. The statute had provided there, that under the circumstances in which the plaintiff stood, the court might, by rule or order, direct that he might recover his costs; and Jervis, C. J., delivering the opinion of the court, stated that the conclusion to be drawn from the cases was that, when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorized to exercise the authority, when the case arises, and its exercise is duly applied for by a party interested, and having the right (that is, having by statute the right) to make the application. The case of Morrisse v. Royal British Bank' was a case of the same kind, and decided that, under the words "it shall be lawful for the court,"
I Backwell's Case, 1 Vern. 152. 2 Rex v. Barlow, 2 Salk. 609. 35 B. & Ald. 691.
4 11 C. B. 755.
a creditor who had obtained judgment against a joint-stock banking company, and had failed to collect his debt against it, was entitled as of right to an execution against a shareholder on complying with the conditions imposed by the statute. In Regina v. Tithe Commissioners' a power was given to the tithe commissioners in dealing with certain landowners to confirm agreements for commutations of tithe, under certain special circumstances and conditions. The court held, upon the construction of the whole statute, that if a case occurred, coming within the terms of the statute, the commissioners were bound to confirm the agreement there mentioned. In delivering the opinion of the court Mr. Justice Coleridge observed: “ The words undoubtedly are only empowering, but it has been so often decided as to have become an axiom, that in public statutes words only directory, permissory or enabling may have a compulsory force, where the thing to be done is for the public benefit or in advancement of public justice.”
$ 462. There is much conflict of authority on this question in this country as well as in England, owing probably in great part to diverse circumstances distinguishing the cases and indicating the intention with which the permissive words were employed. It is believed that the conclusion reached in the cases mentioned in the preceding section is supported by a preponderating weight of reason and authority. In all cases where the words “it shall be lawful” or the word “may” or any equivalent permissive expression is employed with reference to a court of justice, and independently of any precise conditions expressed or implied, they give the tribunal jurisdiction, leaving it to exercise its discretion according to the requirements of justice in each particular case. Where, with reference to conditions expressed or implied, or independent of any special circumstances, it is manifestly intended that the power should be exercised for the promotion of justice or the public good, such permissive words are imperative in the former case upon
114 Q. B. 459.
Q. B. Div. 525; Julius v. Bishop of 2 Re Bridgman, 1 Drew. & S. at p. Oxford, L. R. 5 App. Cas. 214; Beach 169; Rex v. Justices of Norfolk, 4 B. v. Reynolds, 64 Barb. 506; Jarman, & Ad. 238; Castelli v. Groom, 18 Q. B. Ex parte, L. R. 4 Ch. D. at p. 838. 490; Reg. v. Bishop of Oxford, L. R. 4