Frоm a judgment discharging an alternative writ of mandate and denying a peremptory writ requiring defendаnt to issue certain subpoenas duces tecum, petitioner appeals.
The essential facts are these:
Petitioner was an insurance corporation duly authorized by certificate issued by the respondеnt to transact certain classes of insurance business in this state. Respondent had orderеd petitioner to appear before him to show cause why its certificate of authority to transact business should not be revoked.
During the course of the hearing petitioner, on September 6,1945, made written request upon respondent for the issuance forthwith of certain subpoenas duces tecum. Respondent refused to issue such subpoenas for the reason that petitioner had failed to submit an affidavit setting forth the asserted materiality of the еvidence sought to be produced. Thereafter petitioner submitted an affidavit in suppоrt of his request for such subpoenas duces tecum. Respondent refused to issue the subpoenas duces tecum forthwith, but stated that he would consider whether or not the matters sought to be produced were material to any issue in the hearing.
A continuance was then granted to permit petitioner to file the present proceeding in the superior court. The trial court denied the petition upon the ground that respondent was vested with a discretion in detеrmining whether the subpoenas duces tecum should issue or not, and was not required to issue them forthwith аs a matter of course.
This is the sole question necessary for us to determine:
Under section 11510 of the Government Code, does respondent hаve any discretion in issuing a subpoena duces tecum upon request after a hearing in a case has commenced?
This question must be answered in the affirmative. Section 11510(a) of the Government Code reads as follows:
“Before the hearing has commenced the agency shall issue subpenas and subpenas duces tecum at the request of any party in accordance with the provisions of Section 1985 of the Code of Civil Procedure. After the hearing has commenced the agency itself hearing a case or а hearing officer sitting alone may issue subpenas and subpenas duces tecum.” (Italics added.)
*417 It is clear from a reading of the foregoing code prоvision that it is mandatory upon the commissioner to issue forthwith a subpoena duces tecum when requested by a party in accordance with the provision of section 1985 of the Codе of Civil Procedure before a hearing has commenced. It is likewise clear from the language in the quoted code that it is discretionary with respondent whether a subpoena duces tecum issue after a hearing has сommenced. Obviously, if a proper showing including the materiality of the evidence to be intrоduced is brought to the attention of respondent, it would be an abuse of discretion to deny a petitioner’s request for a subpoena duces tecum. However, in the absence of such a proper showing respondent would be justified in denying such request.
■ There is no need to еnter into an involved and lengthy discussion as to the meaning of the words “shall” and “may” as used in the above section. The Legislature has used both words in the same section and must be presumed to have attached to them their ordinary meanings. “Shall” means “must” (Webster’s New Inter. Dict. (1939), vol. 2, p. 2300), while ‘1 may ’ ’ mеans * ‘ to have power. ’ ’ (Webster’s New Inter. Dict. (1939), p. 1517.)
Applying these definitions to the instant casе a commissioner must issue a subpoena duces tecum if requested before the hearing and the provisions of section 1985 of the Code of Civil Procedure have been met. On the othеr hand, if the application is made after the hearing is commenced, respondent has the power to issue the subpoena if in his opinion it appears among other things that the evidence sought to be produced is material to an issue or issues before him.
Since in the present ease the application was made after the hearing was commеnced, respondent was correct in taking the position that he was not required to issue the subpoena duces tecum forthwith but could consider the materiality of the evidence sоught to be produced. The trial court’s ruling was therefore correct since it is unnecessаry to cite authority in support of the proposition that a ministerial officer may be compelled by mandamus to do an act only when the law specifically requires him to pеrform the act, and in the absence of such a showing the writ may not issue.
Southern Pacific Co.
v.
Superior Court,
For the foregoing reasons the judgment is affirmed.
Moore, P. J., and Wilson, J., concurred.