Kelley v. City of Cedar Falls , 123 Iowa 660 ( 1904 )

Sieerwin, J.

Tbe plaintiff was tbe owner of premises abutting an alley, and before the passage of tbe ordinance under wbicb tbe grade of tbe alley was established be bad built a barn on bis premises fronting on tbe same. Tbe section of tbe city ordinance under which tbe alley in question was graded is in tbe following language: “That the grado of tbe alleys not otherwise fixed, at tbe points of intersection with the streets whose grades are established by this ordinance, shall be tbe same as that of said streets, and continuous from one street to tbe next, but between any two adjacent streets along tbe line of tbe alley, vertical curves of grade may be used when necessary to facilitate drainage or afford better access to property along tbe line of said alley, when tbe improvement was made prior to tbe establishment of tbe grade therein. But in no case shall said alley grade pass above the sidewalk grade of the street where it intersects said alley.” And the controlling question for our determination is whether its provision that “vertical curves of grade may be used when necessary to facilitate drainage or afford better access to property along the line of said alley” was mandatory and required that the grade of alleys conform to the natural surface of the ground for the convenience of owners of abutting property, or was permissive and discretionary only. The appellant contends that the provision was mandatory, and that the word “may”, as used therein should be construed “must” or “shall”. The statute provides that words and phrases shall be construed according to the context and the approved usage of the language. ’In other words, the intent of the user of the word or pharse is to be sought and determined from the context and the purpose and object in view, giving to the word or phrase its approved meaning when used in such connection. The prima]*,y or ordinary meaning of the word “may” is undoubtedly permissive and discretionary. Century Dictionary. And in a statute or ordinance it can be construed in a mandatory sense only “when such construction is necessary to give effect to the clear policy and intention of the Legislature; and where there is nothing in the connection of the language or in the sense or policy of the provision to rer quire an unusual interpretation, its use is merely permissive and discretionary.” 20 Am. & Eng. Enc. of Law (2d Ed.) 237; Downing v. City of Oskaloosa, 86 Iowa, 352; Bouvier’s Law Dict. 218.

The ordinance under consideration ■ provided that the grade of the alleys at the points of intersection with the streets should be the same as the grade of the streets, and that such grade should be continuous from one street to the next. This was the general policy adopted for grading the alleys, and the grade thus fixed was mandatory. The only exception to this rule was the provision that a vertical curve grade. “may be used” under certain circumstances and conditions. As declared in the ordinance, the use of the vertícal curve grade was to accomplish either of two objects or both, but the only object in which the public could have an interest was the proper drainage of the alley. The better access to property provided for therein was purely a private convenience. The plaintiff’s barn was built before any grade had been established, and hence he had no vested right in or to any particular grade, and the city had the undoubted right to act in the matter as it saw fit, and it evidently did not in-’ tend by the ordinance in question to establish the grade of all alleys within its limits for the convenience of abutting property owners, regardless of public rights, and such would be the effect under the construction contended for by the appellant. In interpreting statutes and ordinances the word “may” should not be construed to mean “must” or “shall” for the purpose of creating or determining the character of private rights. Bouvier’s Law Dictionary, 218; 20 Am. & Eng. Enc. of Law, 239, and note. We think it clearly appears that the city intended to distinguish between the words “may” and “shall” as used in the ordinance, and in such cases “may” will not be construed as imperative. 20 Enc. of Law, 238.

We reach the conclusion that the judgment is right, and it is therefore affirmed.