decisions. greater certainty than this principle would allow, any attempt to lay down a positive rule, must lead inevitably to a conflict between numerous decisions, as there is probably no question connected with the construction of statutes which has given rise Conflict of to greater difference of opinion. Thus it has been stated in one case, that "the words 'shall and may' in general Acts of Parliament are to be construed imperatively" (x), while in another case, we read, "I do not agree that 'shall and may,' in a statute, are always imperative; they must be deemed imperative or not according to the subjectmatter" (y). 'It It has been said that in all cases where an Act of Parliament empowers a Court of Justice to do any act, using the words, "it shall be lawful," those words are imperative, and leave the Court no discretion. "That is the usual courtesy of the Legislature in dealing with the Judicature. shall be lawful,' means in substance that it shall not be lawful to do otherwise" (z). But elsewhere we read that "in all cases where the words, 'it shall be lawful,' are used in an Act of Parliament with reference to a Court of Justice, and are not otherwise controlled, they give the Court a jurisdiction, leaving it to the Court to exercise its discretion according to the requirements of justice in each particular case" (a). So it was held that the Act (x) Att.-Gen. v. Lock, 3 Atk. at p. 166, per Lord Hardwicke, L.C. (y) Hudd v. Ravenor, 2 Brod. & Bing. at p. 665, per Park, J. (2) Re Neath and Brecon Rail. Co., L. R. 9 Ch. at pp. 264, 265, per James & Mellish, L.JJ. (a) Re Bridgman, 1 Drew. & Sm. at p. 169, per Kindersley, V.-C. 53 Geo. III. c. 141, enacting that it should be lawful for the Court to set aside assurances given to secure an annuity, was not imperative, but gave the Court a discretion (b). The County Courts Act 13 & 14 Vict. c. 61, provided that if the plaintiff in an action should make it appear to the satisfaction of a Court or judge that an action brought in a superior Court could not have been brought in a County Court, the Court or judge "may" give him his costs. The Court of Exchequer held at first that this word was permissive (c), but after the Court of Common Pleas (d) and the Court of Queen's Bench (e) had both decided that it was imperative, the Court of Exchequer yielded to the majority (f). The Act 17 Geo. II. c. 38, enacts that in case churchwardens and overseers refuse or neglect to account to their successors, "it shall and may be lawful" for justices of the peace to commit them. It was held that this Act gave the justices a discretion (g). But the Act 27 Geo. II. c. 20, which provides that where justices are empowered to issue a distress warrant, "it shall and may be lawful" for them to order the goods to be sold, was held to be imperative (h). Again, it has been laid down that "words of permission in an Act of Parliament, if tending to (b) Cook v. Tower, 1 Taunt. 372; Barber v. Gamson, 4 B. & Ald. 281; Girdlestone v. Allan, 1 B. & C. 61. (c) Jones v. Harrison, 6 Ex. 328; Palmer v. Richards, 6 Ex. 335. (d) Macdougall v. Paterson, 11 C. B. 755. (e) Crake v. Powell, 2 E. & B. 210. (f) Asplin v. Blackman, 7 Ex. 386. (g) R. v. Justices of Norfolk, 4 B. & Ad. 238. (h) R. v. Williams, 2 C. & K. 1001. promote the public benefit, are always held to be compulsory" (i). This proposition apparently rests upon the authority of a case which is supposed to have decided that permissive language in an Act empowering a sheriff to take bail, and in another empowering churchwardens and overseers to make a rate to reimburse constables, was to be construed as imperative (k). As that case is still cited as establishing the principle that "where a statute directs the doing of a thing for the sake of justice or the public good, the word 'may' is the same as the word 'shall"" (l), it is worthy of remark that the word "may" does not occur in either of the statutes mentioned in that case. The Act 23 Hen. VI. c. 9, does not provide that the sheriff may take bail, but that he shall take bail (m). The words of the Act, 14 Car. II. c. 12, are that the churchwardens and overseers shall have power and authority to make an indifferent rate" (n). Thus the judgment on which so much reliance has been placed, and from which a general rule has been so often deduced, has either been misreported, or rests upon an unsound basis. (i) R. v. Mayor of Hastings, 1 Dow. & Ry. at p. 149. (k) R. v. Barlow, 2 Salk. 609, Carth. 293, reported as R. v. Derby, Inhabitants, Skin. 370. (1) See R. v. Bishop of Oxford, L. R. 4 Q. B. D. at p. 258, per Cockburn, C.J. (m) This has been observed by Chancellor Kent in Newburgh Turnpike Co. v. Miller, 5 Johnson, Chancery Reports, at p. 101, and by Pollock, C.B., in Jones v. Harrison, 6 Ex. at p. 331, where it is stated that the roll of Parliament has been inspected for the purpose of rectifying this error. The original words of the Act are, "lesserount hors du prison sur resonable suerté ;" see note to Lancaster Canal Co. v. Parnaby, 11 A. & E. at p. 231. (n) Lancaster Canal Co. v. Parnaby, 11 A. & E. at p. 231. which permission considered As the establishment of any guiding principle is Cases in attended by so many difficulties, it will be safer to words of consider what are the cases in which words of per- have beer mission have been treated as imperative. Such imperaeffect has been given to them in several cases where tive. power or authority has been conferred on Courts, public officers, or public bodies, to be exercised for the benefit of any class, or any members of the community. "When a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorised to exercise the authority when the case arises. The word 'may' is not used to give a discretion but to confer a power" (o). It was enacted by 13 Eliz. c. 7, that the Lord Chancellor, upon complaint being made to him against any bankrupt, should have full power and authority to grant a commission which was to take order for the bodies, lands, and goods of bankrupts. Upon the construction of this Act it was held that the Lord Chancellor was bound to issue such a commission (p). In like manner, the Acts which empower the Court to wind up insolvent companies (7), to stay actions against such companies after a winding up has commenced (), to grant execution against a shareholder if execution against a company prove ineffectual (s), have been regarded as imperative. The same view was taken of the words in the 7 Will. IV. and 1 Vict. c. 78, which (0) Macdougall v. Paterson, 11 C. B. at p. 773, per Jervis, C.J. Bridgman, 1 Drew. & Sm. 164. (q) Bowes v. Hope Society, 11 H. L. C. 389, 402. (r) Marson v. Lund, 13 Q. B. 664. (s) Morisse v. Royal British Bank, 1 C. B. N. S. 67. empowered the Court to inquire into the title of an applicant to be inserted on the burgess roll of any borough (t). Where the 5 & 6 Vict. c. 54, provided that if agreements were made for giving land or money instead of tithes, and the land or money seemed to the Tithe Commissioners a fair equivalent, they should be empowered to confirm such agreements, the Court said, "We are of opinion that in the cases to which the section applies, the Tithe Commissioners are bound to act under it, and must confirm according to its provisions. 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" (u). In the United States an Act provided that it should be lawful for the mayor, aldermen, and commonalty of New York to make sewers and cleanse them. It was held that as the public interest called for the execution of the power thus conferred upon the corporation, the statute was imperative, and the exercise of the power became a duty (x). This principle has sometimes been extended to companies incorporated by private Acts, and even to individuals. Where an Act provided that it should be lawful for a railway company to construct bridges of a certain height and span over the roads which were crossed by the (t) R. v. Mayor of Harwich, 8 A. & E. 919. |