McDonald v. Bd. of Chosen Freeholders of Hudson County

• Decision Date: 20 November 1923
• Citation: 122 A. 801
• Parties: McDONALD v. BOARD OF CHOSEN FREEHOLDERS OF HUDSON COUNTY.
• Court: New Jersey Supreme Court

122 A. 801

McDONALD

v. BOARD OF CHOSEN FREEHOLDERS OF HUDSON COUNTY.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1923.

(Syllabus by the Court.)

Appeal from Supreme Court.

Application for writ of mandamus "by Thomas A. McDonald against the Board of Chosen Freeholders of the County of Hudson. Judgment for relator (121 Atl. 297), and defendant appeals. Reversed.

John J. Fallon, of Hoboken, for appellant.

Robert H. McCarter, of Newark, for respondent.

John O. Blgelow, of Newark, amicus curiae.

PARKER, J. This was an application for a writ of mandamus to compel the appellant to make provision for payment to relator of his salary as "superintendent of elections" In the county of Hudson, and the salaries of his subordinates.

The office is created and the salary fixed by chapter 9 of the Laws of 1923 (P. L. p. 26), whose title was amended by chapter 173 of the same year (page 460). That statute provides that such superintendent "shall receive a salary of five thousand dollars per annum to be paid by the county treasurer." The act also provides that the superintendent may appoint certain assistants and fix their salaries and certify the same for payment, and that such salaries when so certified "shall be paid semimonthly by the county treasurer" of the appropriate county. The Supreme Court, on rule to show cause, held relator entitled to a peremptory mandamus, but, to preserve a right of review directed that an alternative writ and a record based thereon should be made up, as required by the practice in such cases. Trinkle v. Donnelly (N. J. Err. & App.) 118 Atl. 417, and cases cited. This was promptly done, and the matter is before us on an alternative writ, return, demurrer thereto, and judgment sustaining the demurrer. As such demurrer opens the whole record, we consider here the legal sufficiency of the writ itself.

The Supreme Court held that certain Irregularity in the entitling of chapters 9 and 173 of the Laws of 1923, including the feature that the "act to regulate elections" of 1898 referred to in the titles of both chapters had been superseded by the Revision of 1920 (P. L. p. 615), did not invalidate the 1923 legislation, constitutionally or otherwise. With this phase of the case we find it unnecessary to deal, for reasons presently to he stated. The writ was further resisted upon the ground, as stated by the Supreme Court, "that the budget of 1923 does not contain an appropriation for the purpose of the bureau of elections, and that the statute in question" (i. e., the legislation of 1923) "imposes no positive legal duty upon the defendant to make an appropriation to that end, but leaves the matter to be dealt with at the discretion of the board." This the court answered by saying that, if there was no appropriation already made in that regard, and hence no fund out of which the salaries could be paid, nevertheless, under section 25 of the "act concerning municipal and county finances" (P. L. 1917, p. 548), as amended by chapter 178 of the Laws of 1919 (P. L. pp. 371, 378), it became the duty of the board to make an appropriation; holding that the words "may * * * make appropriations therefor" are mandatory.

Taken in its ordinary colloquial sense, the word "may" implies no mandate, but in certain classes of cases, especially where the public interest and rights are concerned, and where the public or third persons have a claim de jure that the right shall be exercised, it is construed as mandatory (Seiple v. Elizabeth, 27 N. J. Law, 407; Hugg v. Camden, 39 N. J. Law, 620, 622; Central Land Co. v. Bayonne, 56 N. J. Law, 297, 300, 28 Atl. 713; Fagen v. Hoboken, 85 N. J. Law, 297, 88 Atl. 1027); but often, as in any ordinary case relating to the construction or interpretation of a statute, the context is determinative of the meaning, as for example, is Kennelly v. Jersey City, 57 N. J. Law, 293, at page 297, 30 Atl. 531, 26 L. R. A. 281, where in one section of a statute the word "may" was used twice, once in a mandatory and again in a permissive sense. The contextual words, "when they deem it proper," were properly held to limit the word "may" so as to make the contemplated action discretionary. Even the word "shall" is not is not necessarily mandatory in all cases. 36 Cyc. 1160, 1161; 35 Cyc. 1451; Cairo & Pulton R. R. Co. v. Hecht, 95 U. S. 168, 24 L. Ed. 423; Matter of Rutledge, 162 N. Y. 31, 56 N. E. 511, 47 L. R. A. 721. Both the relevancy and value of the context as an aid to interpretation were recognized in Haythorn v. Van Keuren, 79 N. J. Law, 101, at page 105, 74 Atl. 502, in the Supreme Court, and in Foley v. Orange, 91 N. J. Law, 554, 103 Atl. 743, in this court.

Examining the statutes bearing on the present case in the light of these authorities we note that the act of 1917, p. 548, sometimes called the "Budget Act," requires the annual budget to be made out in advance, a specified number of days after the beginning of the fiscal year, and requires a specification of the various objects of appropriation, permitting an item of "Contingent Expenses" of not over 3 per cent. of the total; that money may be expended from "surplus revenue account" only on account of items scheduled in the budget. It was conceded that the current budget included no provision for the superintendent of elections and his staff,...