Commonwealth v. Mekelburg
| Decision Date | 31 March 1920 |
| Citation | 235 Mass. 383,126 N.E. 790 |
| Parties | COMMONWEALTH v. MEKELBURG. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Criminal Court, Suffolk County; John F. Brown, Judge.
Abraham W. Mekelburg was indicted for getting with child a woman of whom he was not the husband, and he moved to quash the indictment. On report to the Supreme Judicial Court. Motion overruled.
1. BASTARDS k19-ACT OF GETTING WOMAN WITH CHILD MADE CRIMINAL OFFENSE BY STATUTE.
The act of getting with child a woman not defendant's wife, denounced by St. 1913, c. 563, s 1, is thereby made a criminal offense; proceedings of such nature previously having been regarded as civil rather than criminal, in view of Rev. Laws, c. 82, s 22.
2. STATUTES k227-‘MAY’ PERMISSIVE AND NOT MANDATORY EXCEPT WHERE PUBLIC INTEREST IS CONCERNED.
Though the word ‘may,’ in statutory construction, is sometimes used as a synonym for ‘shall’ and ‘must,’ the ordinary signification is permissive, and not mandatory, and in statutes the word is mandatory only where the public interest is concerned, or public or third persons have claim de jure that power be exercised.
[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, May.]
3. STATUTES k208-INTENT AS GATHERED FROM WHOLE STATUTE GOVERNS.
The interpretation to be placed upon a statute is to be determined from its apparent intention, as gathered from the context as well as from the language of a particular provision.
In view of Rev. Laws, c. 157, s 7, giving superior court original jurisdiction of all crimes, and appellate jurisdiction of those tried before police, district, or municipal courts and trial justices, St. 1913, c. 563, s 1, providing that whoever, not being the husband of a woman, gets her with child, shall be guilty of a misdemeanor, and that proceedings may be begun in the municipal, district, or police court having jurisdiction where defendant lives, etc., and, in the absence of such court, in any municipal, district, or police court in the county, or any such court having jurisdiction, where the mother of the child lives, etc., does not limit proceedings to the courts named, to the exclusion of the jurisdiction of the superior court.
Henry P. Fielding, Asst. Dist. Atty., of Dorchester, for the commonwealth.
Roewer & Bearak, of Boston, for defendant.
The defendant was indicted in one count, under St. 1913, c. 563, § 1,1 charging that on November 10, 1917, not being the husband of one Frances Adams he did get her with child. He filed a motion to quash on the ground that the alleged offense is not subject to indictment, and that proceedings under the statute can be prosecuted upon a complaint only in a municipal, district or police court having jurisdiction in the place where the defendant lives, and if there be no such court having jurisdiction, in the place where the mother of the illegitimate child lives.
[1] The first sentence of section 1 provides that--
‘Whoever, not being the husband of a woman, gets her with child shall be guilty of a misdemeanor.’
R. L. c. 215, § 1, provides that--
The act described in the statute is thereby made a criminal offense; proceedings of this nature previously were regarded as being civil rather than criminal. R. L. c. 82, § 22; Corcoran v. Higgins, 194 Mass. 291, 80 N. E. 231. The question is, Does the statute limit prosecutions thereunder exclusively to those begun in the municipal, district and police courts, and before trial justices?
[2][3] As the proceedings may be brought in the courts referred to in section 1 it is obvious that the jurisdiction of the superior court is not expressly excluded. Although the word ‘may’ in statutory construction is sometimes used as a synonym for ‘shall’ or ‘must,’ still the ordinary signification of the word is that it is permissive and not mandatory. Commonwealth v. Haynes, 107 Mass. 194, 197;Commonwealth v. Chance, 174 Mass. 245, 247, 54 N. E. 551,75 Am. St. Rep. 306. In the construction of statutes the rule seems to be that the word ‘may’ means ‘must’ or ‘shall’ only in cases where the public interest is concerned, or where the public or third persons have a claim de jure that the power should be exercised. Hampden Trust Co. v. Leary, 186 Mass. 577, 72 N. E. 88;Cheney v. Coughlin, 201 Mass. 204, 211, 212, 87 N. E. 744;Williams v. People, 24 N. Y. 405, 409;Medbury v. Swan, 46 N. Y. 200; State v. Sweetsir, 53 Me. 438; Continental National Bank v. Folsom, 78 Ga. 449, 456,3 S. E. 269;Fresno National Bank v. Superior Court, 83 Cal. 491, 24 Pac. 157. The interpretation to be placed upon the statute is to be determined from its apparent intention as gathered from the context as well as from the language of the particular provision. So interpreted we see no valid reason for holding that it should not be regarded as permissive in accordance with the general rule.
The defendant relies on the cases of Commonwealth v. Fahey, 5 Cush. 408, and Commonwealth v. Smith, 111 Mass. 407, in support of his contention. In Commonwealth v. Fahey, a complaint was made by a police officer to recover a penalty imposed by a by-law of the city of Boston for burying a dead body illegally. The defendant contended that under St. 1849, c. 211, § 7, the complaint should have been made by the city treasurer. The statute provided that--
‘All fines and forfeitures * * * shall enure to the use of such town or city; and may be recovered by a complaint, in the name of the treasurer. * * *’
It was held that such fines and forfeitures were recoverable by complaint in the name of the treasurer only. In Commonwealth v. Smith, a complaint was made by a constable of the city of Boston against the defendant for a violation of Gen. Sts. c. 26, § 47, relating to the public health. It was provided by Gen. St. c. 19, § 15; St. 1870, c. 227, that--
‘The city marshal or other police officer or the city treasurer, may prosecute for all fines and forfeitures which may inure to the city.’
The court held on the authority of Commonwealth v. Fahey, supra, that as a constable was not a polic officer the complaint must be dismissed. In Commonwealth v. Haynes, 107 Mass. 194, the defendant was indicted under St. 1868, c. 263, § 1, for selling adulterated milk knowing it to be adulterated; the penalty for the first offense was $100, and by ...
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