Evening star. [volume] (Washington, D.C.) 1854-1972, 1903-03-18
is NOT OPTIONAL.
Is Authorized" in an Act
May Mean "Must."
AN IMPORTANT RULING
OPINION RENDERED BY ATToR-
NEY GENERAL KNOX.
Clause of the River and Harbor BiN
Was Under Consideration by
Chief Law Officer.

| Attorney General Knox has rendered an
| opinion to the Secretary of War in the
| matter of the construction Of a common
form of expression in acts of Congress pro-
vidlng for river and harbor improvements
and other pubic works. which opinion, hav-
ing been officially adopted by the War De-
partment, will have a far-reaching effect.
1t will undoubtedly be accepted by all
other executive departments as precedent
for action. The opinion In brief was to the
effect that the phrase rs authorized" fs
equivalent to the word may" and that
that word must be construed to have the
meaning of "shall' and is mandatory in
character. The question was whether the
requirements of the law in regard to the
construction of dredges for the improve
ment of harbors in Lake Erie and Lake
Michigan are mandatory In character or
whether they are wholly or in part d.
| rectory.
The Power to Direct.
'It is fundamental" says the Attorney
| General in reply, that the work of river
| and harbor improvement, and undertakings
| tributary thereto, like the dredge construc-
| ton now presented, are incidents of the
national power to regulate navigation and
| commerce. The authority and initiative OF
| Congress Is complete ana exclusive. An
| Illustration of the exercise OF this jurisdic-
ton by Congress, directing and restricting
| the executive, Is shown by the 14th section
| of the act before us, in which the Secretary
| of War is directed to cause preliminary
| examinations or surveys to be made re-
| specting harbor improvements, and which
requires such preliminary examination un-
| less survey or estimate is expressly d.
rected; and provides that, in case after pre-
liminary examination the particular i'm
provement is not deemed advisa BILE no sur
vey or estimate therefor shall be made
without the direction Of Congress, etc.
in other words, in a particular and Pc
culiar sense the will of Congress operates
upon the executive in a mandatory way
in the laws technically known as river and
harbor bills. In general, 1t is the duty OF
the executive to carry such legislative man
dates into effect. whatever the executive
opinion may be as to their expediency or
propriety, those considerations having been
determined when executive approval to the
law has been given.
Interpretation of Authorization"
Taking up, now the particular point OF
Interpretation, the clause to be considered
is The Secretary of War is authorized to |
cause to be purchased or built etc. The ;
words italicized c4s authorized'D. like cor
responding expressions In statutes, are
equivalent to the word may and the ques-
ton Is, are these words used in a manda-
tory permissive sense?
''1ne ordinary meaning OF may Is gen.
orally permissive, but as used in law 1t Is
often mandatory and equivalent to shall
or must The rule has been stated as fol- !
lows: 1t is well settled that may in
any statute is to be construed as equivalent
to "shalF' or must when the public in
terests rights are concerned. and when
the public or third persons have right de
jure to claim that the power granted should |
be exercised. A duty is implicitly !
imposed to exercise it (the power whenever
the occasion arises. These terms are, then,
in effect invariably invested with COM
pulsory force etc.
"But It would be difficult to believe that
parliament would ever have intended to |
commit powers to public persons for public
purposes for exercise or non-exercise in (
any such spirit; that is, convenience or |
interests might dictate when mere privi- (
lege license is conferred upon private IN /
dividuals. . But regards the im- 4
perative character of the duty 1t was laid !
down by the kings bench that words OF |
permission in an act of parliament, when /
tending to promote the general benefit, are
always held to be compulsory.
Depending on the Context.
1.-The application of this rule, however.
depends upon the context of the statute: +
the test is the intent Of the legislature. AS |
to this element of Interpretation, 1t is prop
er to observe that the act under considera-
ton authorizes the construction of many
separate works Of Improvement, involving |
large expenditures, and in every case the
provision is that the Secretary of War
may lin effect undertake the particular
improvements authorized. If the use Of
the word may in such enactments is
permlssive merely, and its force and scope
extend no further than to authorize the
construction of these works in the discre-
ton of the Secretary of War; then by fail
ure or neglect to avail Of the authority
conferred on him, by adverse exercise
Of the discretion entrusted to him, he would
defeat the exercise Of legislative power in
a matter committed to the exclusive juris-
dicton of Congress, and, manifestly, upon
consideration of the whole subject and the
entire river and harbor program, intended
to be carried into effect promptly and ex-
actly.
Equivalent to "Shall."
'It seems to me, then. that, considering
the words is authorized etc, in the above
provision as equivalent to the word may /
that word must be construed to have the
meaning of shall and is not to be taken
to import mere permission. or to grant an
alternative or choice as II its meaning were
may or may not. L conclude, therefore,
that the clause of the act of June IL. 1902,
above cited In mandatory in character, and
as such Is binding upon the executive,
whose duty it is to carry the mandate inta !.
effect"
Naval ORDERS Z