Vernon County censor. [volume] (Viroqua, Wis.) 1865-1955, 1905-03-01

! directors thereof may from time to
, time determine The word may in
IT'S ordinary and common use, is Ger.
! tainly permissive and not mandatory
/ But IL is claimed with much plausible
ity, that if the purpose of the section
was to make it optional with the direc.
tors of such corporation, whether such
| distribution should be annually or
from time TO time'-as they might
| Accommodation the use of the words
once in two, three, four or five years.
are without significance.
we can conceive of no good reason
| nor are We aware OF any rule of inter,
probation, which would warrant the
| holding that the words may and shall
! are used in the same sense in the sec,
| ton, and that imperative. Therefore
we can not sustain the contention that
| the section requires distribution OF
| surplus once in every FIVE years, or
that the contracts between the com.
| pany and appellant, assuming that
such contracts contain the charter pro
vision in regard to distribution of sur
plus are in violation of section IA,
page sos. We see no escape from the
conclusion thus reached. For more
than thirty years prior to the contro-
versy in question, the language of the
statute has remained substantially the
same. During that time it has seemed
to be the consensus of opinion, on the
part of state officials and legislators,
as well as such insurance companies,
that the time of distribution was per
missive, but that the amount of the re-
serve fund was mandatory. Apparent
ly, upon the faith of such opinion, the
vast aggregate amount of deferred
| dividend insurance policies, mentioned.
were issued. That such was the con
sensus of opinion, is manifested from
the fact, that the insurance commits
sioner attempted in 1901 and again in
1903, to have the section of the statute
in question, amended so as to make
the time of such distribution manda-
tory instead of being permissive-as
indicated. But such efforts failed.
Thus, it appears, that the history of
the section and the practical construc-
ton given to it, are in harmony with
the permissive meaning of the word
| may and the mandatory meaning of
the word 'shall' as ordinarily under
stood and we find nothing in the con
text Of the section, nor any of the rules
of law, mentioned, requiring us to give
to those words a different meaning
There is nothing in the record to indi-
cate that the plaintiff has failed to
comply with any provision of law Of
this state-much less that it has vio-
lated any law Of this state-within the
meaning of the statutes authorizing a
revocation of such license to do bus
mess in this state
Judge Dunwidde Scored.
1T should be observed that the trial
court not only affirmed the decision OF
the insurance commissioner in reyok-
ing the plaintiffs license to do bus
mess in this state, but also found, as
conclusions Of law, that such dividend
policies, so issued by the plaintiff, in
which the distribution was deferred
beyond a period of five years. was 'un-
lawful; and judgment was entered
therein accordingly. Thus, it was
adjudged in this action, that
the numerous policies issued by
the plaintiff to citizens of this
e-aggregating several millions OF
dollars-as found by the trial court
were all unlawful-and that too with,
out any Of the holders of such policies
having been made parties-or given
a hearing-or having appeared in the
action. Such gratutious finding and
adjudication must have escaped the
notice of the learned trial judge"