In the past, this court has subscribed to the proposition that, "[w]here [the] verbs [`shall' and `may'] are used in the same statute, especially where [they] are used in close juxtaposition, we infer that the legislature realized the difference in meaning and intended that the verbs used should carry with them their ordinary meanings." In re Tax Appeal of Fasi, 63 Haw. 624, 626-27, 634 P.2d 98, 101 (1981) (citations omitted). Not surprisingly, we have therefore construed the "close proximity of the contrasting verbs `may' and `shall' [to] require a mandatory effect for the term `shall.'"
In Sodexho, the court held that the contract was a service contract rather than a lease and, thus, did not create an interest in the real property which would subject Marriott to any real property taxes. The court relied on In re Fasi, 63 Haw. 624, 634 P.2d 98 (1981). Consequently, it granted Marriott's motion for summary judgment, declared the assessments null and void, and ordered a full refund.
See, e.g., In re Fasi, 63 Haw. 624, 634 P.2d 98 (1981) (recognizing the right to enter, maintain, and make improvements to real property as indicia of ownership); City of Franklin v. Crystal Ridge, Inc., 509 N.W.2d 730, 733 (Wis. 1994) (noting that the traditional indicia of land ownership include the rights, responsibilities, and benefits associated with that ownership, such as making improvements to the property, enjoyment of its use and profits, maintenance of fire and liability insurance, responsibility for repairs and maintenance, and payment of licenses, fees, and taxes on the property). We can discern nothing in either the Rules or ROH ch. 38 that grants the City the right to enter, use, or improve the land, the fee simple interest in which it transfers pursuant to the ordinance, or that imposes upon the City the responsibility for the land's repair and maintenance.
In the past, this court has subscribed to the proposition that, "where the verbs `shall' and `may' are used in the same statute, especially where they are used in close juxtaposition, we infer that the legislature realized the difference in meaning and intended that the verbs used should carry with them their ordinary meanings." In re Tax Appeal of Fasi, 63 Haw. 624, 626-27, 634 P.2d 98, 101 (1981) (citations omitted). Not surprisingly, we have therefore construed the "close proximity of the contrasting verbs `may' and `shall' to require a mandatory effect for the term `shall.'"
In the past, this court has subscribed to the proposition that, "[w]here [the] verbs ['shall' and 'may'] are used in the same statute, especially where [they] are used in close juxtaposition, we infer that the legislature realized the difference in meaning and intended that the verbs used should carry with them their ordinary meanings." In re Tax Appeal of Fasi, 63 Haw. 624, 626-27, 634 P.2d 98, 101 (1981) (citations omitted). Not surprisingly, we have therefore construed the "close proximity of the contrasting verbs 'may and 'shall' [to] require a mandatory effect for the term 'shall.'"
Although the use of the word "shall" is generally mandatory, it is not necessarily dispositive of the issue and has been considered directory in certain situations. In re Fasi, 63 Haw. 624, 626, 634 P.2d 98, 100-01 (1981) (citation omitted). However, where the words "shall" and "may" are used in close juxtaposition within a statute, the terms carry their ordinary meaning.
Providing maintenance services for the properties and carrying insurance on them as the entity subject to loss in case of destruction are other proofs of ownership interests on the part of the College. See Matter of Fasi, 63 Haw. 624, 634 P.2d 98, 104 (1981); Hope v. Cavallo, 163 Conn. 576, 316 A.2d 407, 411 (1972). In our opinion, Colby College has such control over and holds such a bundle of rights and privileges respecting the fraternity houses involved in this case as to qualify such real estate for tax exemption under 36 M.R.S.A. § 652(1)(B) for being owned by a literary and scientific institution, if the property can be said also to be used solely for its own purposes.
The word "shall" is generally considered mandatory. In re Fasi, 63 Haw. 624, 626, 634 P.2d 98, 101 (1981); Black's Law Dictionary 1375 (6th ed. 1990) ("As used in statutes, contracts, or the like, this word is generally imperative or mandatory. . . . The word in ordinary usage means `must' and is inconsistent with a concept of discretion.") (emphasis added); Merriam-Webster's Collegiate Dictionary 1075-76 (10th ed. 1993) ("used in laws, regulations, or directives to express what is mandatory"). Also, when a statute contains both mandatory and directory verbs such as "shall" and "may" in close juxtaposition, the court is to infer that the legislature intended that the verbs should carry with them their ordinary meanings.
" The 1965 Agreement was a license, and a license in real property "is an `authority to do a particular act or series of acts upon another's land without possessing any estate therein.'" In re Fasi, 63 Haw. 624, 629 n. 8, 634 P.2d 98, 102, n. 8 (1981) (quoting McCandless v. John Ii Estate, 11 Haw. 777, 789 (1899)). See also, 25 Am.Jur.2d Easements and Licenses § 123 (1966).
The problem in this case is the nature of the use of the buildings by the tenants. Queen's argues that, under the ruling of In re Fasi, 63 Haw. 624, 634 P.2d 98 (1981), the tax on real property is assessed to the owner, id. at 631, 634 P.2d at 104, and, therefore, it is the owners' use that determines the eligibility of the property for exemption. We find Fasi to be inapplicable, since in that case the City was trying to impose the property tax on a non-owner.