George v. Board of Revenue and Road Com'rs of Mobile County

• Decision Date: 22 December 1921
• Docket Number: 1 Div. 213.
• Citation: 207 Ala. 227,92 So. 269
• Court: Alabama Supreme Court
• Parties: GEORGE v. BOARD OF REVENUE AND ROAD COM'RS OF MOBILE COUNTY.

92 So. 269

207 Ala. 227

GEORGE v. BOARD OF REVENUE AND ROAD COM'RS OF MOBILE COUNTY.

1 Div. 213.

Supreme Court of Alabama

December 22, 1921

Rehearing Granted Feb. 11, 1922.

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Petition by Lee P. George for mandamus directed to Board of Revenue and Road Commissioners of Mobile County to require the entry of an order for the construction of a line fence. From a decree denying the writ, petitioner appeals. Affirmed.

Frederick G. Bromberg and Alan G. Bolton, both of Mobile, for appellant.

Gordon & Edington, of Mobile, for appellee.

GARDNER J.

Appellant by this proceeding seeks to require the board of revenue and road commissioners of Mobile county to provide for the building of a fence on the boundary line of precinct No. 32 which has by election duly held been established as a stock law district in said county.

"Stock law" was established in precinct No. 32 in accordance with the provisions of section 5881 of the Code of 1907. Said section 5881 provides, among other things, that the courts of county commissioners or courts of like jurisdiction in their respective counties have full and complete authority to supervise and direct the holding of elections for establishing stock law districts in their respective counties or parts thereof, "and have power and authority to define what is a lawful fence or lines between stock law districts and nonstock law districts; and to provide for building fences on the lines of the districts and to cause to be built a lawful fence on lines between any county that may allow stock to run at large, and on lines of the subdivisions of the county that allow stock to run at large."

The question of prime importance on this appeal is whether or not that portion of the foregoing language quoted from said section, which has reference to the building of fences on the boundary lines of stock law districts, shall be construed to be permissive or mandatory. The words "have power and authority," used in this statute in ordinary acceptance and in private transactions usually, are construed as permissive, but their proper construction, when used in the statute, is to be determined from the consideration of the subject-matter and the relation of the provision to the general object intended to be secured by the act, so as to arrive at the true legislative intent. Mr. Black in his Interpretation of Laws lays down the rule that, where a statute provides for the doing of some act which is required by justice or public duty, as where it invests a public body municipality, or officer with power and authority to take some action which concerns the public interests or the rights of individuals, though the language of the statute be merely permissive in form, yet it will be construed as mandatory and the execution of the power may be insisted upon as a duty. The foregoing rule was quoted with approval in Jones v. Commissioners, 137 N.C. 579, 50 S.E. 291, which is of interest in this connection, and where many authorities are cited. The case of Bowen v. City of Minneapolis, 47 Minn. 115, 49 N.W. 683, 28 Am. St. Rep. 333, is very much in point, and we take therefrom the following quotation:

"There is no universal rule by which directory provisions in a statute may, under all circumstances, be distinguished from those which are mandatory, and an examination of the adjudicated cases simply tends to confuse the examiner. In the case of Howard v. Bodington, 2 Prob. Div. 203, Lord Penzance stated (page 211) that in his belief, as far as any rule was concerned, one 'cannot safely go further than that in each case you must look to the subject-matter, consider the importance of the provisions, *** and the relation of that provision to the general object intended to be secured by the act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory. Again, in a case where the words used were merely permissive, it was said: 'The conclusion to be deduced from the authorities is that, where power is given to public officers in the language of the act before us, or in equivalent language, whenever the public interests or individual rights call for its exercise, the language used, though permissive in form, is in fact 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.' Supervisors v. United States, 4 Wall. 435, 446."

The rule as thus recognized is given very general application by the courts in this country. 36 Cyc. 1157, with cases cited in the note; 1 Words and Phrases, 647, 648; 1 Words and Phrases, Second Series, 371, 372. This principle of law was also recognized by this Court in Tarver v. Commissioners' Court, 17 Ala. 527, where it was said:

"It is true the language of the act is that it shall be lawful for the commissioners' court to levy a tax, etc.; but it is well settled that the word 'may' or the words 'it shall be lawful' are peremptory when used in a statute, where the public or individual has the right de jure, that the powers conferred by the act shall be exercised."

The Tarver Case has found frequent citation in subsequent decisions of this court....