Stephan v. State Veterinary Medical Bd.

Decision Date27 June 1960
Citation113 Ohio App. 538,18 O.O.2d 177,173 N.E.2d 389
Parties, 18 O.O.2d 177 Sol G. STEPHAN, etc., Appellee, v. STATE VETERINARY MEDICAL BOARD et al., etc., Appellants.
CourtOhio Court of Appeals

Mark McElroy, Atty. Gen., and James L. Neustadt, Asst. Atty. Gen., for appellants.

Gordon Renner and Walter L. Tarr, Cincinnati, for appellee.

O'CONNELL, Judge.

Appellee, Sol G. Stephan, was charged with the violation of Section 4741.22(G) R.C. The specific charge was that 'on November 18, 1958 and January 13, 1959, one John C. Russell * * * did administer veterinary medical services and issued rabies vaccination certificates which has (sic) been signed by you (Stephan)' and 'the Secretary of the Veterinary Medical Board certifies that John C. Russell is not licensed within accordance of the laws of Ohio, and therefore you are charged with having lent your name to an unlicensed person contrary to Section 4741.22 of the Revised Code.'

Now Section 4741.22, Revised Code, provides that 'the Board may refuse to issue a license or a temporary permit to any applicant, may issue a reprimand, or suspend or revoke the license or temporary permit of any person licensed to practice veterinary medicine who * * * (G) has professional association with or lends his name to any unlicensed person.'

There was a hearing before the Veterinary Medical Board on March 18, 1959 on the said charge and at this hearing the said Board issued an order suspending Stephan's license to practice veterinary medicine for a period of six months commencing on April 1, 1959.

On March 30, 1959, Stephan served upon the Board a notice of appeal from the order, and on April 1, 1959, he filed in the Court of Common Pleas of Hamilton County a notice and petition on appeal from the Order; all of these pleadings having been filed within the time fixed by law (Section 119.12, R.C.) for such filings (15 days).

Furthermore, a temporary restraining order against the Board pending determination of the appeal was granted on April 1, 1959.

The matter having been set for hearing on the merits on January 11, 1960, Stephan moved the Court for a judgment in his favor, because the State Veterinary Medical Board had failed to file with the Court, within ten days after the receipt of notice of appeal, a transcript of the proceedings in the case (Section 119.12, R.C.). Later on, the Board moved the Court for leave to file instanter the complete record of the proceedings in the March 18, 1959 hearing. This motion was overruled and the temporary restraining order of April 1, 1959 was made permanent. It is from this ruling of the Court of Common Pleas that there is an appeal to this Court.

There is only one question to be determined in this matter: what is the meaning of 'shall' as the word is used in Section 119.12, Revised Code. The Section requires that 'any party desiring to appeal shall file a notice of appeal with the agency, setting forth the order appealed from and the grounds of his appeal. A copy of such notice of appeal shall also be filed by appellant with the Court. Unless otherwise provided by law relating to a particular agency, such notices of appeal shall be filed within fifteen days after the mailing of the notice of the agency's order as provided in this section.'

And the Section further requires that 'within ten days, or within such period as is authorized by law, after receipt of notice of appeal from an order in any case wherein a hearing is required by sections 119.1 to 119.13, inclusive, of the Revised Code, the agency shall prepare and certify to the court a complete record of the proceedings in the case.'

If the word 'shall' is mandatory, there is no doubt that the judgment of the lower court must be affirmed. If, however, the word 'shall' is directory, then the judgment of the lower court should be reversed.

Let us look therefore at this word 'shall' Grammatically, it is what is known as an auxiliary verb. Though its use is confined ordinarily to this role (of auxiliary verb), Webster's New International Dictionary (1959) refers to it as a principal verb with a past tense of 'should', but without an infinitive or participle. Webster then refers to its use as an auxiliary verb. It is derived from the Anglo Saxon 'scal' and 'sclae', meaning 'I am obliged'. By itself, (as an auxiliary verb), it is no part of speech at all. It must be used as a part of another verb. As it is used in the sentences in Section 119.12, Revised Code, the verbs 'shall be filed' is to be parsed as being the Future Indicative Passive, 3rd person plural, number (to agree with notices) and the verbs shall prepare and (shall) certify be parsed as being Future Indicative Active, 3rd person singular (to agree with agency). In Latin, however, these verbs would be in the future tense of the imperative mood (the mood of command) for the reason that shall ordinarily connotes the idea of command. The reason for the difference is that in English, the imperative mood has no future tense.

Now furthermore, there is this rule (in English) concerning the use of 'shall' and 'will'. If futurity is to be expressed, one must use 'shall' in the first person and 'will' in the second and third persons. If, however, determination is to be expressed, then one reverses the order and uses 'will' in the first person and 'shall' in the second and third person.

So that in this case with the use of 'shall' in the third person, the idea of determination has been expressed. If the law is determined that something must be done, it can hardly be said that it is merely directing the mode of procedure.

Moreover, if one argues that the word 'shall' as it applies herein to the Board is merely directory, then why would it be illogical to hold that the same word as it applies to appellant is likewise directory? And why could not the argument be made wherever the word is used in the statutes that it is merely directory?

Let us remember too that in this case the agency is a litigant and comes before the Court in that capacity. It should hardly be given more lenient treatment than the other litigant. And it is our opinion that this Section does not intend so to favor one party over the other.

Webster in discussing its use as an auxiliary verb says that 'shall' means 'am obliged' or 'must'. And since the past tense is should, it can be readily seen that the idea of obligation is present. As an auxiliary 'should' is the form used to express the imperfect tense of the potential mood, which (mood) is used to indicate power, liberty, possibility, or necessity.

Webster further says (paraphrasing what has been written earlier in this opinion): 'Thus shall when used in the second or third person has a special force from the fact that the speaker predicts or promises another's action and hence is expressive of some authority or compulsion on the speaker's part; as in 'You shall go'; 'Thou shalt not kill'; 'he shall rue it'.

And in Vol. 39 Words & Phrases, p. 111, we find that: 1) The word 'shall' is equivalent to the word 'must'. 2) Generally, presumption is that the word 'shall' is construed in an imperative sense rather than directory, and presumption will control unless it appears clearly from context or manifest purpose of the act as a whole that the legislature intended that a different construction should be given to the word (City of Gary v. Yaksich, 120 Ind.App. 121, 90 N.E.2d 509).

Also, see the following cases in which the word 'shall' was held to be mandatory: State v. Shahadi, 137 N.J.L. 233, 61 A.2d 299, et seq.; Cornshock v. People, 56 Ill.App. 467; Jefferson County Farm Bureau v. Sherman, 208 Iowa 614, 266 N.W. 182; Gould v. Trendberth, 61 R.I. 5, 199 A. 696, et seq.; State v. Huffstetler, 213 S.C. 319, 49 S.E.2d 585, 587; Fegan v. Likes Bros. SS., 198 La. 312, 3 So.2d 632, 635; Chenoweth v. Chambers, 32 Cal.App. 104, 164 P. 428, 430; Jenny v. Assessors of Mattaporsett, 332 Ill.App. 330, 76 N.E.2d 125, 126, 128; Lawrence Warehouse Co. v. Defense Supplies Corp., 9 Cir., 168 F.2d 199; Cottrell v. Board of Education of City of New York, 181 Misc. 645, 42 N.Y.S.2d 472; Carolina Music Co. v. Query, 192 S.C. 308, 6 S.E.2d 473; State ex rel. Rowe v. Emmanuel, 142 Neb. 583, 7 N.W.2d 156; Carpenter v. Smith, 79 R.I. 326, 89 A.2d 168; Abshire v. School District No. 1 of Silver Bow County, Mont., 124 Mont. 244, 220 P.2d 1058; Munroe v. Sullivan Min. Co., 69 Idaho 348, 207 P.2d 547, 81 N.E.2d 409; In re Buchanan's Estate, 82 Ohio...

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