Opinion
No. 36597.
November 24, 1947.
1. STATUTES.
The word "may," appearing in a statute, should be construed as "must" or "shall" where public interests or rights are to be affected, or where the public or private persons have rights de jure which can be protected only by such construction, but the word "may" is never construed as "shall" for the purpose of creating a right.
2. STATUTES.
The courts are permitted to give a mandatory meaning to the word "may" in a statute when so to do would effect justice or would prevent injustice.
3. COUNTIES.
A county in its authorized business affairs is free to do what others in business may do unless otherwise commanded by law.
4. STATUTES.
The word "may" is primarily and ordinarily a permissive term and not peremptory or mandatory, and hence the court must not be in any real doubt that the Legislature intended it in a mandatory sense before the court has authority to give it a mandatory meaning.
5. STATUTES.
Permissive, directory, or enabling language of a statute is presumed to be used in its ordinary sense, unless it would manifestly defeat the object of the statute.
6. STATUTES.
The interpretation of permissive terminology as mandatory may be made only where context or subject matter of statute compels such construction, or where it is necessary to give effect to clear policy and intention of Legislature.
7. DEPOSITORIES.
The word "may," appearing in statute providing that board of supervisors "may" allocate funds to each bank offering to qualify as nearly as practical in proportion to their respective capital accounts, would not be construed in a mandatory sense so as to require county to divide funds between applying banks which were both qualified as county depositories (Code 1942, Sec. 9144).
APPEAL from the circuit court of Leflore county. HON. S.F. DAVIS, J.
Alfred Stoner, of Greenwood, for appellant.
The court erred in holding, in effect, that notwithstanding Section 1 of Chapter 422 of the Laws of 1946, amending Section 9144 of the Code of 1942, the board of supervisors of Leflore County, Mississippi, could arbitrarily constitute only one of two bidding banks as county depository, thus arbitrarily preferring one of two equally qualified and equally bidding banks above the other. It was the duty of the defendants to allocate the county funds to the said Bank of Greenwood and to the Leflore Bank Trust Company (they being the only other bidders) as nearly as practical in proportion to their respective capital accounts subject to taxation as shown by the tax roll of Leflore County, Mississippi, and to adopt rules for receiving such deposits. The word "may" as used in statutes ordinarily means "shall" and, in fact, always means "shall," except where several statutes are construed together, and the entire scheme definitely shows that the word "may" is used in a permissive, rather than a mandatory, sense.
Town of Carrollton v. Town of North Carrollton, 109 Miss. 494, 69 So. 179; State ex rel. Cowan v. Morgan, 147 Miss. 121, 112 So. 865; Gunter v. City of Jackson, 130 Miss. 637, 94 So. 844; Gandy v. Public Service Corporation, 163 Miss. 187, 140 So. 687; Kennington v. Hemingway, 101 Miss. 259, 57 So. 809; Smith v. State ex rel. McNeil, 99 Miss. 859, 56 So. 179; Lang v. Board of Sup'rs of Harrison County, 114 Miss. 341, 75 So. 126; Ridley v. Ridley, 24 Miss. 648; Federal Land Bank v. Leflore County, 170 Miss. 1, 153 So. 882; Simpson v. Winegar (Ore.), 258 P. 562, 563; Smalley v. Paine, 102 Tex. 304, 116 S.W. 38, 39; River Farms Co. of California v. Gibson, 4 Cal.App.2d 731, 42 P.2d 95; State to Use of Neal v. Saline County Court, 48 Mo. 390, 8 Am. Rep. 108; Uhl v. Badaracco, 199 Cal. 270, 248 P. 917, 921; Berg v. Merchant, 15 F.2d 990, 991; Buell v. City of Toppenish, 174 Wn. 79, 24 P.2d 431; State ex rel. Rowe v. Emanuel, 142 Neb. 583, 7 N.W.2d 156, 158; Snyder v. Central Vermont R. Co., 112 Vt. 190, 22 A.2d 181, 182; Code of 1942, Secs. 9144, 9150; Laws of 1946, Ch. 422; 59 C.J. 1081.
The proper remedy was not by an appeal from the order of the board of supervisors but by petition for a writ of mandamus.
Board of Sup'rs of DeSoto County v. Pidgeon-Thomas Iron Co., 114 Miss. 274, 75 So. 117; Code of 1942, Secs. 1109, 1195; Laws of 1946, Ch. 422; 34 Am. Jur. 838; 38 C.J. 561, 570.
Means Johnston and Bell McBee, all of Greenwood, for appellees.
The board of supervisors did everything required by Chapter 422 of the Laws of 1946 and selected a depository in accordance with the said statute and adopted rules and regulations for handling the county funds. The board of supervisors of Leflore County, Mississippi, in selecting a depository for the county funds, followed in our judgment the word and spirit of the statute relating to the selection of depositories.
Town of Carrollton v. Town of North Carrollton, 109 Miss. 494, 69 So. 179; Ridley v. Ridley, 24 Miss. 648; State ex rel. Attorney General v. School Board of Quitman County, 181 Miss. 818, 181 So. 313; State ex rel. Cowan v. Morgan, 147 Miss. 121, 112 So. 865; Gee et al. v. Rimmer, 188 Miss. 460, 195 So. 342; Code of 1942, Sec. 9144; Constitution of 1890, Sec. 170; 59 C.J. 1082-1085, Sec. 635.
Mandamus will not lie where there is a plain, adequate and speedy remedy at law.
Board of Police of Attala County v. Grant, 9 Smedes M. (17 Miss.) 77; Board of Sup'rs of Rankin County v. Lee et al., 147 Miss. 99, 113 So. 194; Hamilton v. Long et al., 181 Miss. 627, 180 So. 615; In re Validation of Bonds of McNeill Special Consolidated School Dist., 185 Miss. 864, 188 So. 318; City of Jackson v. McPherson, 158 Miss. 152, 130 So. 287; Code of 1942, Secs. 1109, 1195.
Argued orally by Alfred Stoner, for appellant, and by A.H. Bell, for appellees.
For the year 1947, appellant bank and the Bank of Greenwood, both in every way qualified, applied to the board of supervisors of Leflore County for appointment as county depositories under the statutes governing the subject, both applications being in full compliance with the statutes. The board selected the Bank of Greenwood as the sole depository, whereupon appellant bank instituted its action in mandamus contending that under Chap. 422, Laws 1946, it was obligatory on the board to divide the funds between the banks.
Chap. 422, Laws 1946, is amendatory of Sec. 9144, Code 1942. The latter section, as regards the provision here directly involved, reads as follows: "the board of supervisors shall have the right to designate which and how much of any one fund shall be kept on deposit in any one of the depositories, . . ." The provision as amended reads as follows: "The board of supervisors may allocate said funds to each bank offering to qualify as nearly as practical in proportion to their respective capital accounts subject to taxation as shown on the tax roll to said county . . ." The sole question involved in the present appeal is whether the quoted word "may" is to be read as "shall."
It is the rule supported by the authorities in all jurisdictions that the word "may" should be construed as "must" or "shall" where public interests or rights are to be affected, or where the public or private persons have rights de jure which can be protected only by such construction. The only public right to be protected here is the right to have ample security for its public funds put up by a sound, solvent, convenient and dependable bank. The record shows that the Bank of Greenwood is such a bank, and that it has deposited ample securities in all respects as required by statute.
Inasmuch then as the public interest has been fully protected, we turn to the inquiry whether there is any private person with rights de jure to be protected, and which cannot be so protected unless the word "may" is construed as "shall." The only private interest here involved is the interest of the other bank, the Leflore Bank Trust Company. Its interest is not one resting in the common law, but if any it is derivitive solely from the statute. If the word "may" in the statute is permissive and not mandatory, then the Leflore Bank has no right de jure, wherefore such a right can be created only by construing "may" as meaning "shall." The authorities are without dissent, so far as we have found, that the word "may" is never construed as "shall" for the purpose of creating a right. If such were done, "may" would always mean "shall," when the action of any public board or administrative body is involved and discretion would disappear. See the cases collected under Note 8, 53 C.J., Statutes, Sec. 635, at p. 1085.
There is the further rule that in appropriate cases the courts are permitted to give a mandatory meaning to the word "may" when so to do will effect justice or will prevent injustice. Appellant says that it ought to have the protection of that rule, it being undisputed that appellant bank is sound, solvent, well managed, has offered security equally as good as the other bank, and along with the other bank is a large taxpayer.
No other experience in commercial life is more common, perhaps, than that wherein one house or one person offering services or goods is preferred over and among others who have made, or make, offers equal in merit. Depositors in banks make such preferences, as does appellant bank itself, in placing its hundreds of thousands of dollars on deposit in the exchange centers of the country. There is no injustice in all this in the sense in which that term is used in the stated rule. What others in business may do, the county in its authorized business affairs is free also to do unless otherwise commanded by law. Therefore, the argument does not advance the inquiry, for it brings us back to the point of beginning — has the county been commanded by law to do otherwise than it did?
Appellant invokes the rule of construction that when the Court can see that the real purpose and intention of the Legislature was to give the word "may" a mandatory meaning, the Court should so construe it. Gandy v. Public Service Corp., 163 Miss. 187, 140 So. 687. Inasmuch, however, as the word "may" is primarily and ordinarily a permissive term and not peremptory or mandatory, the Court must not be in any real doubt that the Legislature did intend it in the mandatory sense, else the Court would have no legitimate authority to take it out of its primary or ordinary sense. "Permissive, directory or enabling language of a statute is presumed to be used in its ordinary sense, unless it would manifestly defeat the object of the provision. The interpretation of permissive terminology as mandatory may be made only where the context or subject matter compels such construction, or where it is necessary to give effect to the clear policy and intention of the legislature." 50 Am. Jur., Statutes, Sec. 31, p. 53; State v. County School Board, 181 Miss. 818, 828, 829, 181 So. 313.
The quoted language upon the point at issue, as used both in the original and the amended statute, is so awkward that we cannot tell with confidence what was meant by it, either when taken alone or with all the provisions of the statute in pari materia, and hence we are without authority to convert the permissive term there used into a sense which would make it mandatory.
Affirmed.