Opinion of the Court-Ailshie, J., Dissenting.

upon an ex parte application, the court, before making the order, may require from the applicant an undertaking, with sufficient sureties, in an amount to be fixed by the court, to the effect that the applicant will pay to the defendant all damages he may sustain by reason of the appointment of such receiver and the entry by him upon his duties, in case the applicant shall have procured such appointment wrongfully, maliciously, or without sufficient cause; and the court may, in its discretion, at any time after said appointment, require an additional undertaking."

It will be observed from the provisions of said section that "the court, before making the order, may require from the applicant an undertaking." It is contended by counsel for the plaintiffs that the word "may," as used in that section, means "must," and that the court had no jurisdiction to appoint a receiver until he entered an order requiring the applicant to give an undertaking as provided by said section. The question is directly presented whether the word "may" as there used means "must.”

The legislature, from the wording of said section, evidently intended to leave the matter to the legal discretion of the court as to whether an undertaking should be required from the applicant or petitioner for a receiver, and under the facts alleged in the complaint we do not think the court abused its discretion in not requiring an undertaking from the applicant or plaintiff in that action.

The alternative writ must be quashed and this proceeding dismissed, and it is so ordered, with costs in favor of defendant.

Stewart, C. J., concurs.

AILSHIE, J., Dissenting.-I do not agree with the conclusion reached in this case. It seems to me that sec. 4331 is intended to be mandatory upon any court, when it appoints a receiver ex parte, in requiring an undertaking for the protection of the person whose property is being taken without a hearing or any chance of a hearing. It does not seem to me

Idaho, Vol. 22-43

Opinion of the Court-Ailshie, J., Dissenting.

reasonable to suppose that the legislature ever intended to authorize a court to appoint a receiver to take charge of another man's property without giving him any notice or any opportunity to be heard, and to do so without requiring the party applying for such an order to give some security for the protection of the absent party whose property is to be taken from him without any hearing whatever. The rule is very generally recognized by courts that the word "may" in statutes is used in the mandatory sense wherever it involves the rights of the public or third persons. In other words, where it involves or affects parties not before the court and who are not given a hearing, the word is generally construed by courts, and so understood by lawmakers as having a mandatory significance rather than a permissive or discretionary import. (Endlich on Interpretation of Statutes, sees. 310, 312; Supervisors v. United States, 4 Wall. 435, 18 L. ed. 419; First National Bank of Helena v. Neill, 13 Mont. 377, 34 Pac. 180; State v. Kent, 4 N. D. 577, 62 N. W. 631, 27 L. R. A. 686; Kohn v. Hinshaw, 17 Or. 308, 20 Pac. 629; Wheeler v. City of Chicago, 24 Ill. 105, 76 Am. Dec. 736; Rock Island County Supervisors v. United States, 71 U. S. (4 Wall.) 435, 18 L. ed. 419.)

Our statute itself is significant in the different aspects in which it uses the word "may" in the same sentence of sec. 4331. In the first place, it says: "If a receiver be appointed upon an ex parte application, the court, before making an order, may require from the applicant an undertaking," etc., and in the latter part of the sentence is found the following language: "and the court may, in its discretion, at any time after said appointment, require an additional undertaking." Now, if the word "may" was not used in the mandatory sense in the first part of the sentence, why should the lawmakers have added the words "in its discretion" following the word "may" in the latter part of the sentence? An analysis of this sentence convinces me that the lawmakers thought the court would have no discretion about requiring a bond upon the appointment of a receiver ex parte, but rather that it would be mandatory upon him. On the other hand, they thought

Points Decided.

to leave it in the "discretion" of the court as to whether he would require an additional bond at any time after the appointment of the receiver. To put it another way: A bond must be given in some amount at all hazards upon the appointment of a receiver on an ex parte application, but requiring an additional bond thereafter was intended to be left in the discretion of the court as indicated in the latter part of the sentence. If it was intended that the taking a bond in the first place should be in the discretion of the court, then I cannot see why the words "in its discretion" should have been added in the latter part of the sentence.

For the foregoing reasons I dissent from the views expressed by the majority of the court.

(October 24, 1912.)

J. A. LIPPINCOTT et al., Respondents, v. W. A. CARPENTER, Appellant.

[127 Pac. 557.]

REMOVAL OF COUNTY SEAT-STATUTORY AND CONSTITUTIONAL CONSTRUCTION-RULE OF EVIDENCE-PETITION-RIGHT TO WITHDRAW NAMES.

(Syllabus by the court.)

1. Under the provisions of sec. 2, art. 18 of the constitution of Idaho, the petition for a removal of a county seat must be signed by a majority of the qualified electors of the county at the time the petition is filed.

2. By the provisions of sec. 467, Rev. Codes, a petition for a removal of a county seat must be signed by a number of legal voters of such county equal in number to a majority of all votes cast at the last general election, and that provision of the law provides a rule of evidence for establishing a prima facie case, and the court upon that showing would be justified in ordering an election, unless it was shown to the court that the number of qualified electors in the county had increased since the last general election, and in that case the petition must contain a majority of the qualified voters as

Argument for Appellant.

shown by the legal evidence produced on the hearing of such petition.

3. Under the provisions of the constitution and statute, more than one application may be made for an order of election for the removal of a county seat, and upon the hearing it is the duty of the court to consider all of such petitions at the same hearing and to determine which, if either, contains a majority of the qualified electors of the county.

4. Withdrawals from the petition for the removal of a county seat may be made at any time prior to the submission of the petition to the court.

APPEAL from the District Court of the Third Judicial District for Boise County. Hon. C. P. McCarthy, Judge.

Appeal from an order of the district court ordering an election for the removal of the county seat of Boise county from Idaho City to Weaverly. Judgment ordering an election. Reversed.

Cavanah, Blake & MacLane, for Appellant.

A requirement of a majority of the electors in favor of a petition contemplates that there can be but one petition. (Streissguth v. Geib, 67 Minn. 360, 69 N. W. 1097; Evenson v. O'Brien, 106 Minn. 125, 118 N. W. 366; State ex rel. Reed v. Garrett, 76 Mo. App. 295; State ex rel. Andrews v. Boyden, 21 S. D. 6, 108 N. W. 897, 15 Ann. Cas. 1122.)

A construction of a statute which will occasion public mischief or inconvenience ought to be avoided, unless the language employed will not permit of a different interpretation. (Sutherland on Stat. Const., sec. 323.)

The requirement of a majority of signatures would obviously exclude the possibility of two petitions, as there could not be two majorities each in favor of different towns. (Currie v. Paulson, 43 Minn. 411, 45 N. W. 855.)

The following cases indicate that from the form of ballot but one election can be held: Peck v. Board of Supervisors, 102 Mich. 346, 60 N. W. 985; Hawes v. Miller, 56 Iowa, 395, 9 N. W. 307.

Argument for Respondents.

Withdrawals from the petition after the same has been filed are not authorized. (State ex rel. Andrews v. Boyden, 15 Ann. Cas. 1122, note; Evenson v. O'Brien, supra; Wilson v. Bartlett, 7 Ida. 271, 62 Pac. 416.)

If anyone who signs can withdraw after filing the petition, a few persons may sign the petition with the concerted intention between them of withdrawing after the same has been filed and thus defeat it. It hardly seems fair that in matters exciting as much acrimony as county seat removals, such practice should be permitted, and it would hardly seem that the statute would permit it when it has so carefully guarded these proceedings in every respect.

Karl Paine, for Respondents.

There cannot be two petitions for the removal of a county seat, each of which is signed by a majority of the qualified electors of the county. (State v. Boyden, 21 S. D. 6, 108 N. W.

897, 15 Ann. Cas. 1122.)

That portion of sec. 457, Idaho Rev. Codes, which provides for a petition to be signed by a number of legal voters equal in number to a majority of all votes cast at the last general election, contravenes that portion of art. 18, sec. 2 of the constitution providing that no county seat shall be removed unless upon petition of a majority of the qualified electors of the county. (Lindsay v. Allen, 112 Tenn. 637, 82 S. W. 171; 5 Cent. Dig., tit. "Counties," sec. 35, subd. 2.)

If the statute is valid, the lower court was right in granting the prayer of both petitions, as each petition was signed by a number of legal voters equal in number to a majority of all votes cast at the last general election.

A choice between the two petitions in this case would necessarily be arbitrary, and therefore indefensible.

Within certain limits the legislature has power to prescribe what shall be evidence, prima facie or conclusive, of any fact, but under the guise of establishing rules of evidence it cannot override the restrictions of the constitution or make anything conclusive evidence of the number of qualified electors in the county which, in the nature of things, has no connection with