railway, it was held that the words were inserted for the benefit of the public, and that the height and span prescribed were compulsory (y). So the provisions that actions by and against banking companies "shall and lawfully may" be brought in the names of or against their public officers (z), or their official manager (a), are imperative, although an Act which makes it "sufficient" to state the name of the secretary, or of a director, in all actions brought against a company, is not compulsory (b). The 8 & 9 Will. III. c. 11, which provides that in actions on any penal sum for non-performance of covenants, the plaintiff "may" assign breaches, or suggest them on the roll, is imperative, as the statute is meant for the benefit of defendants (c).

which give

tion held

perative.

In certain cases language which, taken literally, Words would seem to give an absolute discretion to those a discreupon whom an authority is conferred, has been re- to be imgarded as imperative. It was, indeed, declared in one case that the words "may be deemed be deemed proper cannot be considered compulsory, since the effect of reading "may" in such a sentence as "must would be that the whole passage would be rendered insensible (d). Where, however, the 2 & 3 Vict. c. 84, enacted, that if any contribution by overseers of a parish was in arrear, it should be lawful

(y) R. v. Caledonian Rail. Co., 16 Q. B. 19, 28.

"

(z) Steward v. Greaves, 10 M. & W. 711; Chapman v. Milvain, 5 Ex. 61.

(a) Re London and Eastern Banking Corporation, 2 De G. & J. 484, 498.

(b) Beech v. Eyre, 5 M. & G. 415.

(c) Roles v. Rosewell, 5 T. R. 538; Hardy v. Bern, 5 T. R. 636; Drage v. Brand, 2 Wils. 377.

(d) De Beauvoir v. Welch, 7 B. & C. at p. 278.

for two justices to summon the overseer before a special sessions, and, "if the justices at such sessions shall think fit," to issue a warrant for recovering the amount of the contribution, it was held that these words did not give the justices an absolute discretion, and that, if the facts of the case were within the statute, they were bound to issue their warrant (e). So, where the 11 & 12 Vict. c. 42, provided that, upon an information being laid before justices, "they may, if they shall think fit," issue a summons, it was held that they were bound to act according to law, and could not refuse to issue their summons merely because they thought the information ought not to have been laid (ƒ). Where an Act provided that a City Council might, "if it believed that the public good and the best interests of the city required it," levy a tax to pay its funded debt, it was held that a mandamus lay at the instance of a judgment creditor to compel such a tax to be levied. "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 favour of affirmative action" (g). The same decision was pronounced in the case of a statute under which the Board of Supervisors might, "if deemed advisable," levy a special tax, and the Court in giving judgment used the following expressions:-" The conclusion to be derived from the authorities is, that where power is given

(e) R. v. Boteler, 4 B. & S. 959.

(f) R. v. Adamson, L. R. 1 Q. B. D. 201.

(g) City of Galena v. Amy, 5 Wallace, 705, 709.

to public officers in the language of the Act before us, or in equivalent language, wherever 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" (h).

which

be impera

How far the very wide expressions used in this Cases in and some of the former cases are consistent with words of the views which have at other times been enterpermission have been tained may, perhaps, be determined by a reference held not to to the cases where similar words have retained tive. their primary meaning. Even where Courts, public officers or public bodies, have been empowered to do things which were for the public benefit, or for the benefit of specified persons, it has been held that the words conferring the power did not create a duty. The provisions of the 43 Geo. III. c. 59, that where county bridges are narrow and inconvenient, "it shall and may be lawful" for the justices of the county to order such bridges to be widened, improved and made commodious, were declared not to be imperative, though they were

(h) Supervisors v. U. S., 4 Wallace, Sup. Ct. at pp. 446, 447.

obviously intended to benefit the public (). "The words, 'it shall and may be lawful,'" says Blackburn, J., in that case (k), "are to be taken in their primary sense as permissive, unless there be anything in the subject-matter of the enactment requiring that they should receive a different construction." The 1 Will. IV. c. 22, gives power to the Courts of Law, by the words "it shall be lawful," to issue commissions for the examination of witnesses out of the jurisdiction. It is clear that this provision is intended for the benefit of suitors, yet it was held that the words were not compulsory, and that the Court in its discretion might refuse to issue such a commission (1). The 32 & 33 Vict. c. 40, enacts that the rating authority "may" exempt Sunday and ragged schools from liability to be rated. It was held that the rating authority was not bound to grant this exemption (m).

A serious conflict arose upon the construction of the Church Discipline Act, 3 & 4 Vict. c. 86. That Act provides, that "in every case of any clerk in holy orders who may be charged with any offence, it shall be lawful for the bishop of the diocese, on the application of any party complaining thereof, or, if he shall think fit, of his own mere motion, to issue a commission" of inquiry. It was laid down by Wightman, J. (), by Sir Robert Phillimore (o),

(i) Re Newport Bridge, 2 E. & E. 377; 29 L. J. M. C. 52.

(k) 2 E. & E. at p. 382.

(1) Castelli v. Groom, 18 Q. B. 490.

(m) Bell v. Crane, L. R. 8 Q. B. 481.

(n) R. v. Bp. of Chichester, 2 E. & E. 209; 29 L. J. Q. B. 23.

(0) Martin v. Mackonochie, L. R. 2 A. & E. at p. 123; see also Elphinstone v. Purchas, L. R. 3 P. C. 245.

and by Lord Selborne (p), that these words were not imperative, and that the bishop had a discretionary power to issue the commission. On the other hand, Dr. Lushington, when he was acting as assessor to the Archbishop of Canterbury (q), stated that the bishop was bound to issue the commission; and the same view was taken by the Queen's Bench Division (). But this judgment was reversed by the Court of Appeal, which held that the words "it shall be lawful" in the Church Discipline Act were not imperative (s), and the judgment of the Court of Appeal was affirmed by the House of Lords (t).

Where an Act recited that the formation of a railway between certain places would be beneficial to the public, and enacted that it should be lawful for a company to make such a railway, it was held that, notwithstanding the recital of the public benefit, the words were permissive and not compulsory (u). So, where it was provided in the United States that the directors of a turnpike company might remove a certain toll-gate (x), that the capital stock of a bank might consist of a certain sum (y), it was held that these Acts were not

(p) Ex parte Edwards, L. R. 9 Ch. 138.

(9) In Ditcher v. Denison, of which I can find no report at this stage. (r) R. v. Bishop of Oxford, L. R. 4 Q. B. D. 245.

(8) R. v. Bishop of Oxford, L. R. 4 Q. B. D. 525.

(t) Julius v. Bishop of Oxford, L. R. 5 App. Ca. 214.

(u) R. v. York and North Midland Rail. Co., 1 E. & B. 178, 858; R. v. Lancashire and Yorkshire Rail. Co., 1 E. & B. 228, 873; R. v. Great Western Rail. Co., 1 E. & B. 253, 874.

(x) Newburgh Turnpike Co. v. Miller, 5 Johnson's Chancery Reports, 101.

(y) Minors v. Mechanics' Bank of Alexandria, 1 Peters, 46.