Summary
In Santa Cruz R.P. Co. v. Heaton, 105 Cal. 162, 165 [38 P. 693], the Supreme Court said, "Primarily, and as ordinarily used in a statute, the word `may' does not denote the imperative mood of the verb to which it is attached, but merely imports permission, ability, possibility, or contingency; and should never be interpreted or understood as mandatory, except by compulsion of the context in connection with which it is to be read, showing that the legislature must have used it in that sense.
Summary of this case from Crowley v. Board of SupervisorsOpinion
Department One
Appeal from a judgment of the Superior Court of Alameda County.
COUNSEL:
It was mandatory upon the city council to prescribe, by ordinance, general rules directing the superintendent of streets and the contractor as to the materials to be used. The word "may," as used in section 6 of the act of 1885 relating to such work, should be construed as "must." (Ex parte Simonton, 9 Port. 390; 33 Am. Dec. 320; Bansemer v. Mace , 18 Ind. 27; 81 Am. Dec. 344; People v. Brooks , 1 Denio, 457; 43 Am. Dec. 704; Supervisors v. United States, 4 Wall. 435; King v. Inhabitants of Derby, Skin. 370; King v. Barlow, 2 Salk. 609; Mayor etc. of New York v. Furze, 3 Hill, 614; Thompson v. Lessee of Carroll, 22 How. 434; Mason v. Fearson, 9 How. 248. On this see further, Backwell's case, 1 Vern. 152-54; 2 Chit. 251; Dwarris on Statutes, 712; Newburgh T. Co. v. Miller, 5 Johns. Ch. 113; 9 Am. Dec. 274; Steines v. Franklin Co ., 48 Mo. 167; 8 Am. Rep. 87; State v. Saline County Court , 48 Mo. 390; 8 Am. Rep. 108; James v. Dexter , 112 Ill. 489; Kane v. Footh , 70 Ill. 587; Fowler v. Pirkins , 77 Ill. 271; Estate of Ballentine , 45 Cal. 696; Coopers v. City of San Jose , 55 Cal. 599; Hayes v. Los Angeles County , 99 Cal. 74; State v. Board of Canvassers , 36 Wis. 498; Phelps v. Hawley , 52 N.Y. 27; People v. Board of Supervisors , 51 N.Y. 401.) As the act provides that the general rules therein provided for shall be prescribed by ordinance, a mere resolution of the board was not sufficient. (See Act of 1885, sec. 6; Stats. 1885, p. 151; Dillon on Municipal Corporations, sec. 96; Day v. Green, 4 Cush. 433; Coffin v. Nantucket, 5 Cush. 269; Ruggles v. Nantucket, 11 Cush. 433; Birdsall v. Clark , 73 N.Y. 73; 29 Am. Rep. 105.)
Dunne & McPike, for Appellants.
Parker & Eells, for Respondent.
The contention that the specifications should have been adopted by ordinance instead of by resolution is not well taken, as for all such purposes "resolution" and "ordinance" are equivalent. (Los Angeles v. Waldron , 65 Cal. 283; Sower v. Philadelphia , 35 Pa. St. 231; San Francisco Gas Co. v. San Francisco , 6 Cal. 191.)
JUDGES: Vanclief, C. Haynes, C., and Belcher, C., concurred. Harrison, J., Van Fleet, J., Garoutte, J.
OPINION
VANCLIEF, Judge
Action to enforce the lien of an assessment of four hundred and thirteen dollars on defendants' lot for work done by plaintiff on Broadway, in the city of Oakland, under contract with the superintendent of streets.
The cause was submitted to the trial court upon an agreed statement of facts, whereupon judgment was rendered in favor of the plaintiff, from which defendants appeal on the judgment-roll, and contend here that the stipulated findings of fact do not support the judgment.
The street work for which the assessment was levied upon defendants' lot was done under "An act to provide for work upon streets," etc., approved March 18, 1885 (Stats. 1885, p. 147), in section 3 of which it is provided, among other things, that "Before passing any resolution for the construction of said improvements, plans and specifications, and careful estimates of the costs and expenses thereof, shall be furnished to said city council, if required by it, by the city engineer of said city, and for the work of constructing sewers specifications shall always be furnished by him." And in section 6 of the same act it is provided: "The city council may by ordinance prescribe general rules directing the superintendent of streets and the contractor as to the materials to be used, and the mode of executing the work under all contracts thereafter made."
It appears and is admitted that the plans, specifications, and estimates for the work in this case were required by and furnished to the city council by the city engineer in strict accordance with the above extract from section 3, and that such plans and specifications were made a part of the contract for doing the work, though the work did not include the construction of any sewer. But it likewise appears that the city council of Oakland never had by ordinance prescribed any general rule as to the materials to be used or the mode of executing any kind of street work before ordering the work in question to be done, though both the order and the contract for doing the particular work in this case sufficiently and with extraordinary particularity specified the materials to be used, and the mode of doing the work.
Counsel for appellant contend in substance that the above extract from section 6 of the act is mandatory, and that strict obedience to its behest by the city council is a necessary condition precedent to the acquisition of jurisdiction of the council to order any street improvement to be made; and, consequently, that the resolution ordering the work to be done and the assessment in this case are [38 P. 694] void. To effect this construction they interpret the word "may," in the extract from section 6, as meaning shall or must; and attempt to justify this interpretation on the ground that it is necessary to effectuate the intended object of the legislature, as manifested by the context of the statute in which the word was used.
Primarily, and as ordinarily used in a statute, the word "may "does not denote the imperative mood of the verb to which it is attached, but merely imports permission, ability, possibility, or contingency; and should never be interpreted or understood as mandatory, except by compulsion of the context in connection with which it is to be read, showing that the legislature must have used it in that sense. (Minor v. Mechanics' Bank, 1 Pet. 64; Thompson v. Carroll, 22 How. 434; State v. Neuner , 49 Conn. 233.)
There is nothing in section 6 or in the whole act of March 18, 1885, indicating that the legislature intended to command the city councils to prescribe general rules as to what kinds of materials should be used, or as to mode of executing work, or that any thing more was intended by the above extract from section 6 than the ordinary import of the language of that extract, namely: That city councils are thereby permitted, in the exercise of their discretion, to prescribe such general rules as they deem practicable. It is improbable that the legislature deemed it practicable for city councils to prescribe such general rules as would be properly adapted to all the different kinds of street improvements, though it may have been deemed practicable to frame general rules applicable to some kinds of work. But, surely, there is nothing in the act indicating an intention to make the adoption of such general rules a condition precedent to jurisdiction of councils to order work to be done. The conditions precedent to such jurisdiction are fully provided in section 3; and, as above remarked, the stipulated findings show that all the conditions prescribed by section 3 were fully performed in this case.
The only other point made for appellant is that the plans and specifications were adopted by mere resolution of the council, and not by an ordinance signed by the mayor.
It appears by the agreed statement that the resolution was passed by vote of eleven members of the council, and that it was signed by the president of the council.
As the plans and specifications were specially adopted for a particular improvement they were properly adopted by resolution. Only the general rules provided for by section 6 of the act need be adopted by ordinance.
I think the judgment should be affirmed.
For the reasons given in the foregoing opinion the judgment appealed from is affirmed.