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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, 46 N. W. Rep. 542, 77 Wis. -, citing Fuhrman v. Jones, 68 Wis. 497; Clark v. Lamoreux, 70 id. 508; Hanson v. Dunn, 76 id. 455.
1 Minor v. Mechanics' Bank, 1 Pet.
2 Julius v. Lord Bishop of Oxford, L. R. 5 App. Cas. 214.
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." 1
$461. On an indictment against church wardens for not 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 wardens, 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,"
1 Backwell's Case, 1 Vern. 152.
2 Rex v. Barlow, 2 Salk. 609.
35 B. & Ald. 691.
411 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 Commissioners1 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.
2 Re Bridgman, 1 Drew. & S. at p. 169; Rex v. Justices of Norfolk, 4 B. & Ad. 238; Castelli v. Groom, 18 Q. B. 490; Reg. v. Bishop of Oxford, L. R. 4
Q. B. Div. 525; Julius v. Bishop of
the requisite conditions being shown, and in the other upon application by those entitled to invoke the exercise of the power, such circumstances as were needful having been considered by the legislature.' Permissive words in respect to courts or officers are imperative in those cases in which the public or individuals have a right that the power so conferred be exercised. Such words, when used in a statute, will be construed as mandatory for the purpose of sustaining and enforcing rights, but not for the purpose of creating a right or determining its character; they are peremptory when used to clothe a public officer with power to do an act which ought to be done for the sake of justice, or which concerns the public interest or the rights of third persons. Where a statute confers power upon a corporation, to be exercised for the public good, the exercise of the power is not merely discretionary, but imperative, and the words "power and authority" in such case mean duty and obligation. The words "authorized and empowered" are imperative in respect to a board of supervisors where parties improperly assessed are entitled, under conditions stated in the statute, to have taxes refunded by the act and decision of such board." The "power to levy all needful taxes and to pay and discharge all claims on or against the county which have been expressly or impliedly authorized by law" conveys authority and imposes the duty of providing for any local object sanctioned by the legislature."
An act provided that a city council might, "if it believe the public good and the best interests of the city required it," levy
1 Girdlestone v. Allan, 1 B. & C. 61; Cook v. Tower, 1 Taunt. 372; Barber v. Gamson, 4 B. & Ald. 281; Crake v. Powell, 2 E. & B. 210; Macdougall v. Paterson, 11 C. B. 755; Asplin v. Blackman, 7 Ex. 386; Reg. v. Williams, 2 C. & K. 1001; Bower v. Hope Life Ins. Co. 11 H. L. Cas. 389, 402; Marson v. Lund, 13 Q. B. 664; Morisse v. Royal B. Bank, 1 C. B. (N. S.) 67; Reg. v. Boteler, 4 B. & S. 989; Reg. v. Mayor of Harwich, 8 Ad. & E. 919; Roles v. Rosewell, 5 T. R. 538; Hardy v. Bern, id. 636; Tolmie v. Dean, 1 Wash. Ty, 47.
2 Tarver v. Commissioners' Court, 17 Ala. 527; Mitchell v. Duncan, 7 Fla. 13; Reg. v. Adamson, L. R. 1 Q. B. Div. 201.
3 Banks, Ex parte, 28 Ala. 28; Rex v. Barlow, 2 Salk. 609; Johnston v. Pate, 95 N. C. 68.
4 Mayor, etc. v. Marriott, 9 Md. 160; Com'rs of Pub. Schools v. Co. Com'rs, 20 id. 449; Barnes v. Thompson, 2 Swan, 317.
People v. Board of Supervisors, 56 Barb. 452.
6 Com'rs of Pub. Schools v. Co. Com'rs, supra.
a tax to pay its funded debt; and it was held imperative; that a mandamus lay at the instance of a creditor to compel such a tax to be levied. The court said: "The discretion thus given cannot, consistently with the rules of law, be resolved in the negative. The rights of the creditor and the ends of justice demand that it should be exercised in favor of affirmative action." In another case the same court said: "The conclusion to be deduced from the authorities is, that where power is given to public officers in the language of the act before us, or in equivalent language, whenever the public interest or individual rights call for its exercise, the language used, though permissive in form, is in effect peremptory. What they are empowered to do for a third person the law requires shall be done. The power is given, not for their benefit, but for his. It is placed with the depositary to meet the demands of right and to prevent a failure of justice. It is given as a remedy to those entitled to invoke its aid, and who would otherwise be remediless. In all such cases it is held that the intent of the legislature, which is the test, was not to devolve a mere discretion, but to impose a positive and absolute duty." A statute provided that the certificate of tax sale may be substantially in the following form. The word may in this provision was held to be equivalent to shall. The use of both may and shall in the same provision may afford a very forcible indication of the intention. Thus, the use of words that are plainly compulsory in one aspect, and the use of others which literally are permissive in another, necessarily leads to an inference that the primary meaning is to be retained. It is provided by the 18 and 19 Vict., chapter 128, that "every vacancy in the burial board shall be filled up by the vestry within one month, and in case any such vestry shall neglect to fill up any such vacancy, the vacancy may be filled up by the burial board at any meeting thereof." It was held that the word "may" in this provision was not imperative. By a statute it was provided that in a certain event a bridge should “become a
Galena v. Amy, 5 Wall. 705, 709. 2 Supervisors v. United States, 4 Wall. at pp. 446, 447; Hogan v. Devlin, 2 Daly, 184.
ler v. Houlihan, 32 id. 486; Gilfillan v. Hobart, 35 id. 185.
4 Wilb. on St. 204.
Id.; Reg. v. Overseers of South
3 Clark v. Schatz, 24 Minn. 300; Kel- Weald, 5 B. & S. 591.