63 Md. 14 | Md. | 1885
delivered the opinion of the Court.
This is an appeal from an order of the Orphans’ Court of Frederick County requiring the appellant, the surviving executor of John Sifford, deceased, to give counter-security. The death of the said John Sifford occurred in the year 1818; he having made and executed a last will and testament which was duly admitted to probate. Letters testamentary were granted to John Loats and John E. Sifford, the appellant, who, on the 18th day of November, 1818, filed in the Orphans’ Court their bond, as executors of said will, with the appellees as securities. Not long afterwards the said John Loats died, and the appellant is now the surviving executor of the last will and testament of John Sifford, and the appellees are liable under the obligations of his bond.
The appellees, apparently dissatisfied with the manner in which the appellant was discharging his duties as surviving executor, invoked the interposition of the Orphans’ Court by the passage of an order requiring him to show-cause why his account should not be restated; and on the-21th day of March, 1884, in pursuance of their remedy-accorded by statutory provisions, the said appellees, by petition, asked the Orphans’ Court for an order for counter-security. In conformity with the tenor of this petition,.
The proceedings, which terminated in this appeal, involved the construction, by the Orphans’ Court, of the language of the Code, Art. 91, sec. 1, which is in these words:
“ If any security, or any counter-security of an executor or administrator, or any person interested in ■ the estate of any such security, or counter-security, shall conceive himself in danger of suffering from the securityship, he may apply to the Orphans’ Court which granted the administration, and the said Court may require the party to give counter-security, to he approved by the Court,” &c., &c.
On behalf of the appellant it has been strenuously argued that the phraseology of the statute, confers on the Court a discretionary power which it may either exercise ■or decline to exert at its option, after having judicially inquired into the verity of the averment, constituting the basis of the application for the relief designated by the statutory provision. If this position were,tenable it would he difficult to perceive how an exercise of the revisory powers of this Court could be invoked in view of the numerous decisions which militate against the right of appeal in all such cases.
In that case the creditors of Backwell, by petition, asked for a commission of bankruptcy against him, and the Lord Keeper ordered that a commission should issue unless cause to the contrary were shown within a designated period. An application was afterwards made for a suspension of the operation of this order, so as to afford an ■opportunity .for an investigation and ulterior arrangements. But “the Lord Keeper declared, that though the words in the Act of Parliament were, that the Chancellor may grant a commission of bankrupt, yet that {may) was in effect (must), and it had been so resolved by all the •Judges. And the granting of a commission was not a matter discretionary in' him, but that he was bound to do it.”
In Rex & Regina vs. Barlow, 2 Salk., 609, there was an indictment for non-performance of duty designated by statute; and as matter of defence it was contended that the word may in the Act of Parliament, rendering the performance optional, the omission to perform did not present a proper case for criminal procedure. But the Court held that “ where a statute directs the doing of a thing for the sake of justice or the public good, the word may is the same as the word shall.”
A similar construction may he found in a multitude of English authorities recognizing this principle as applicable in analogous cases. King vs. Inhabt. of Derby, Skinner, 390; Rex vs. Commissioners of Flackwood Inclosure,
This Court has on several occasions declared the principle of construction to be that “ Where a statute confers power upon a corporation to be exercised for the public good, the exercise of the power is not merely discretionary, but imperative, and the words ‘power and authority,’1 in such case, may be construed duty and obligation.” Mayor & C. C. of Balt. vs. Marriott, 9 Md., 160; Mayor & C. C. of Balt. vs. Pendleton & Harlan, 15 Md., 12; Comm’s of Pub. Schools vs. County Comm’rs of A. County, 20 Md., 449; County Commissioners of A. A. Co. vs. Duckett, 20 Md., 468.
In Mason, et al. vs. Fearson, 9 How., 248, the words “it-shall be lawful ” have a construction which gives them a mandatory operation.
In the more recent case of The Supervisors of Rock Island Co. vs. United States, 4 Wall., 435, is found an elucidation of the principles of construction by the Supreme Court which renders apparent the reason of the rule. The Court says: “ The conclusion to he deduced from the authorities is, that where power is given to public officers, in the language of the Act before us, or in equivalent language — whenever the public interests or individual
The statute certainly gives the appellees the right to ask for counter-security. It also says that the Orphans’ Court may enforce that right in the manner prescribed. The authorities already cited decide that the word “may” when so used is mandatory; and such was the construction which controlled the action of the Orphans’ Court. The recognition of this rule of construction was strictly proper and correct. Acting in obedience to the mandate of the law that Court clearly committed no error, and the order appealed from should therefore be affirmed.
Order affirmed, and cause remanded.