Lyons v. Gram

• Decision Date: 18 October 1927
• Parties: LYONS v. GRAM, COM'R OF LABOR STATISTICS, ETC.
• Court: Oregon Supreme Court

260 P. 220

122 Or. 684

LYONS v. GRAM, COM'R OF LABOR STATISTICS, ETC.

Supreme Court of Oregon

October 18, 1927

Department 2.

Appeal from Circuit Court, Marion County; L. H. McMahan, Judge.

Mandamus by A. G. Lyons, doing business under the firm name and style of the Star Employment Agency, against C. H. Gram Commissioner of Labor Statistics and Inspector of Factories and Workshops. From a judgment dismissing the alternative writ, plaintiff appeals. Affirmed.

Wilber Henderson, of Portland, for appellant.

J. B Hosford, Asst. Atty. Gen. (I. H. Van Winkle, Atty. Gen., on the brief), for respondent.

BELT J.

This is a proceeding in mandamus to compel the state Labor Commissioner to issue a license to petitioner for the purpose of operating an employment agency in the city of Portland. The application for the license was made in the manner and form as provided by statute. Accompanying it were the affidavits of ten freeholders to the effect that they believed the applicant to be a person of good moral character and capable of conducting such business. A suitable bond was filed and the annual license fee of $250 was tendered. The application was rejected, as disclosed by the return to the alternative writ, for the reason that "plaintiff is not a suitable person to operate an employment agency," the defendant alleging specific instances wherein the petitioner had defrauded laborers who had applied to him for employment.

It is the contention of the plaintiff that, having complied with the statute, the issuance of the license by the Labor Commissioner is purely a ministerial act, and he is not called upon to determine whether the applicant is a fit person to operate an employment agency, as such is conclusively established by the affidavits accompanying the application.

The issuance of the writ depends primarily upon whether the language of section 6728, Or. L., as amended by chapter 244, Laws of Oregon for 1925, is directory or mandatory. This section provides:

"The Commissioner of Labor Statistics and Inspector of Factories and Workshops may, upon the payment of an annual license fee and filing of a bond in the amounts hereinafter provided, when such bond has been approved by him, issue to the employment agent a license for the period of one (1) year. * * *"

Was it the intention of the Legislature to use the word "may" in the above section in its usual and ordinary meaning or can it be said from the context of the act that it was used in an imperative sense? In other words, does the Labor Commissioner have any discretion in the issuance of licenses if there has been a compliance with the law as to the manner and form of making application?

It is deemed necessary briefly to state the substance of other provisions of the act in order to comprehend the purpose and spirit of such legislation. Section 6726, Or. L., requires that the application for license shall be filed with the commissioner 30 days in advance of the date the license is to be issued, and that the "application shall set forth that the applicant is a citizen of the United States, and shall be accompanied by the affidavits of at least ten (10) freeholders of the state of Oregon, to the effect that the said persons believe the said applicant to be a person of good moral character and capable of exercising an employment agent's license according to the terms of this act." This section also provides that the applicant must furnish a bond that he will fully comply with the requirements of the act. Section 6730, Or. L., imposes a civil liability upon any employment agent who gives incorrect information to any person who files application for employment. Section 6733 Or. L ., concerns the criminal liability of employment agents. Section 6735, Or. L., confers upon the Commissioner of Labor the power "to make all needful rules and regulations for the administration of this act, to provide forms for applications and such other forms as may be from time to time necessary in the administration hereof." Section 6736, Or. L., authorizes the commissioner to revoke a license after proof that such agent has violated the provisions of the act. Section 6737, Or. L provides for appeal to the circuit court from the decision of the Commissioner of Labor.

It is plain from the provisions of the act that the legislative policy was to protect laborers and wage-earners against the pernicious activities of dishonest and unscrupulous employment agents. In determining whether the language of section 6728, Or. L., as amended, is mandatory or permissive, we should have in mind the object of the legislation and the evils sought to be eradicated.

Without question, the Labor Commissioner was authorized to revoke the license of any agent proved unworthy of conducting such business, but it is insisted by appellant that, however unworthy the applicant may be at the time of making the application, the commissioner must issue the license if petitioner has been able to find, among the many...