Minton v. Town of Ahoskie

21 N.C. App. 716 | N.C. Ct. App. | 1974

BRITT, Judge.

On the facts presented in this case, was it mandatory for defendant to pay plaintiff for accumulated sick leave, or was such payment within the discretion of defendant’s council? We hold that payment was discretionary with the council and the trial court erred in its conclusions of law and adjudication.

The answer to the question depends on the construction of the word “may” in section 4 (b) of the ordinance set forth above, and the effect of the proviso of said section.

In 5 Strong, N. C. Index 2d, Municipal Corporations, § 29, p. 679, we find:

“The rules applicable to statutes apply equally to the construction and interpretation of municipal ordinances, and when the language of an ordinance is clear and unmistakable, there is no room for construction, and the plain language of the ordinance must be given effect. A municipal ordinance must be construed to ascertain and effectuate the intention of the municipal legislative body as gathered from the language of the ordinance. Furthermore, such an ordinance, like a statute or other written instrument, should not be interpreted as consisting of detached, unrelated sentences, but must be construed as a whole. The courts must interpret an ordinance as written, and whether the ordinance should or should not permit a certain use is a legislative question for the governing body and not for the courts.”

Defendant argues that the term “may” ordinarily is construed as permissive and not mandatory, and cites 7 Strong, N. C. Index 2d, Statutes, § 5, page 75, for this proposition. Plaintiff concedes that this is the rule, but cites Puckett v. Sellars, 235 N.C. 264, 69 S.E. 2d 497 (1952), as an instance in which the term was construed as mandatory. In Puckett, supra, at 268, 500, we find: “ ‘The general rule is that the word “may” will be construed as “shall,” or as imposing an imperative duty whenever it is employed in a statute to delegate a power, the exercise of which is important for the protection of public or private interests. Whether merely permissive or imperative depends on the intention as disclosed by the nature of the act in connection with which the word is employed and the context.’ [Citations.]” In Puckett there were such interests, namely, the collection’ of revenue and the punishment of those who overproduced tobacco. A reading of the record in this case fails to disclose such interests.

With respect to the construction of statutes, in Art Society v. Bridges, State Auditor, 235 N.C. 125, 130, 69 S.E. 2d 1, 5 (1952), we find: “In determining whether a particular provision in a statute is to be regarded as mandatory or directory the legislative intent must govern, and this is usually to be ascertained not only from the phraseology of the provision, but also from the nature and purpose, and the consequences which would follow its construction one way or the other. Smith v. Davis, 228 N.C. 172 (179), 45 S.E. 2d 51; Machinery Co. v. Sellers, 197 N.C. 30, 147 S.E. 674; Spruill v. Davenport, 178 N.C. 364 (368), 100 S.E. 527; S. v. Earnhardt, 170 N.C. 725, 86 S.E. 960; 59 C.J. 1073. The heart of a statute is the intention of the lawmaking body. S. v. Humphries, 210 N.C. 406, 186 S.E. 473.”

Applying the stated principles to the case at hand, we think a reading of the ordinance in question discloses an intent to make the term “may” permissive and not mandatory. To conclude otherwise would completely ignore the proviso that payment (for accumulated sick leave) “may be made only by council action.”

Furthermore, on the question of terminal leave, section 3 (b) of the ordinance provides: “A full-time employee shall be paid accrued annual leave upon separation from the Town, but in no case more than 30 days.” Annual leave under the ordinance is leave granted for vacation and not sickness. The ordinance empowers the town council to convert sick leave to terminal leave if the employee meets certain requirements. It is not an automatic conversion but one that takes place upon council action. Further, to credit plaintiff with 169 days of terminal leave would be to far exceed the maximum allowable terminal leave as set forth in the ordinance.

For the reasons stated, the judgment appealed from is

Reversed.

Judges Hedrick and Carson concur.