Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1904-09-07
SUPREME COURT DECISION.
CONTINUED from Page Two).

road as demanded. We do not believe
that such results were intended to ne
secured by the Legislature n the pass
age OF this act, but if they were, we
are not prepared to hold that it is
within the power of the law making
branch Of our government to cOnfide
10 one OF the parties concerned the
adjudication Of such conflicting inter-
ests, which would be the result of the
respondent Is required to enter the
order as relator desires. The word
shall" is sometimes construed, to
mean may" and that is a better con-
structiOn for 1t when app. ed under
this statute to a petition asking to
close a public highway long existing
kirman v. Powning, Is New,
1913. Suburban Light and Power
Company v. City of Boston 10 l..
r. A. 499.
Beecher v. LEBANON St. Ry. Co.
1S8 Pa. St. 496.
To otherwise conclude might lead
to nardsiD and inconvenience to the
travelling public in this and other cases
In the topography o. this State one or
few land owners may constitute or
become the majority of the taxpayers
in road districts lying across valleys
and il they could at will close the
highways traversing their premises,
they might thereby not only make 1t
necessary for neighbors and adjacent
owners, but for people passing from
other localities, to travel long dis
tances out of ,--eir way or over steep
mountain ranges 1t is of higher i'm
portance to have roads remain open
when essential to the convenience Of
the public, than to have them closed
Tor the benefit of individuals
There are stronger reasons for COM
pelling the opening of a new road on
the petition OF the proper majority of
the taxpayers and regardless of the
discretion of the Board than exist for
SO closing an old one In the former
case compensation must be made to
the land owners for the damage caus-
ed by the opening of the road, while
in closing highway it may be assum-
ed that he or his grantors has been
paid for the right of way or had ac
Quired their rights subject to it, AMI
that he will be benefited without max
ing any remuneration to the public for
the loss Of the easement of which they
will be deprived. In Suburban Light
II.
Supra. under an act providing that
the Mayor and Alderman shall give
Electric Light Companies a writing
specifying where the posts may be
located and wires run, the word 'shall'
was construed to mean may and
the court sustained the action of the
Board in declining to grant the ap.
plicatiOn Of the light company 1t
was said that the power given to the
Aldermen of a City or the selectmen
Of town in regard to such matters
was one to be exercised at their dis
erection, seems to have been assumed
in several cases, citing, Hill vs.. Wor
cester County Commrs, 4 Gray Ala
Com. v. Boston, 81 Mass. 555, Pierce
v. Drew, 1876 Mass, IS. In Becher V
Lebanon st. Co.. Supra, the court held
that notwithstanding the use of the
imperative "shall' an injunction il
not to be granted unless proper case
be made out in accordance with the
principles and practice of equity ant
that the word "shall' when used BY
the legislature to court is usually
grant Of authority and means may
Interpreting the word "shsll' 4
mean may as already stated, tn
Board were empowered to act judic
tally and If in their judgment the,
believed the closing of the highwa
would cause undue Inconvenience 4
the travelling public. they were AZ
th0rized to deny the petition. It i
the uniform decision or this and othe
courts that a subordinate body can L.
directed to act, but not how to &C
In . matter regarding which it can e,
ercise its discretion. This court cat
not substitute it's judgment in plac
Of that Of the Board in it's denial {
the petition.
Hoole v. Kinkead 16 New 222.
Hardin v. Gutherie 26 New 252
State v. Curler rs New. 356.
and cases there cited.
State v. County Court SO w. Va. So
1t is unnecessary to express an Opil
ION regarding the meaning Of tn
statutes in cases where it is sought
open new roads.
The motion to strike out is denie
the demurrer is sustained on the tw
grounds indicated, and if relator d
sires he may amend within thir'
days.
Talbot, J.
concur Belknap, C. J.
The controversy on the merits
this proceeding is the proper int
probation of the word "shalr' In
statute. The statute provides tn;
when certain things, naming tho
are done concerning highway, tn
the Board of County Commissions
shall vacate such road or highway
Petition claims that since he h
done all the things named and !
quired in the statute, the Board
COnnfv COmmic gilmore woro m,
PEELED by the word "shall'' in Il
statute to close the road or highw
in accordance with his petition thel
for.
If such were the proper meaning
the word "shall' in the legislative
tent, the word petition" in the ST
ute would not aptly express or d,
cribe the document that was to let t
power of the Board in motion. T
word demand would be the word