173 N.E.2d 389 | Ohio Ct. App. | 1960
Lead Opinion
Appellee, Sol G. Stephan, was charged with the violation of Section
Now, Section
"The board may refuse to issue a license or a temporary permit to any applicant, may issue a reprimand, or suspend or revoke the license or the temporary permit of any person licensed to practice veterinary medicine who:
"* * *
"(G) has professional association with or lends his name to any unlicensed person."
There was a hearing before the Veterinary Medical Board on March 18, 1959, on the charge, and at this hearing the board issued an order suspending Stephan's license to practice veterinary medicine for a period of six months, commencing April 1, 1959.
On March 30, 1959, Stephan served upon the board a notice of appeal from the order, and on April 1, 1959, he filed in the Court of Common Pleas of Hamilton County a notice and petition on appeal from the order. All these pleadings have been filed within the time (15 days) fixed by law (Section
Furthermore, a temporary restraining order against the board pending determination of the appeal was granted on April 1, 1959.
The matter having been set for hearing on the merits on January 11, 1960, Stephan moved the court for a judgment in his favor, because the Veterinary Medical Board had failed to file with the court, within ten days after the receipt of notice of appeal, a transcript of the proceedings in the case (Section
There is only one question to be determined in this matter: What is the meaning of "shall," as the word is used in Section
And the section requires further that "within ten days, or within such period as is authorized by law, after receipt of notice of appeal from an order in any case wherein a hearing is required by Sections
If the word, "shall," is mandatory, there is no doubt that the judgment of the lower court must be affirmed. If, however, the word, "shall," is directory, then the judgment of the lower court should be reversed.
Let us look, therefore, at this word, "shall." Grammatically, it is what is known as an auxiliary verb. Though its use is confined ordinarily to this role (of auxiliary verb) Webster's New International Dictionary (2 Ed.) refers to it as a principal verb with a past tense of "should," but without an infinitive or participle. Webster then refers to its use as an auxiliary verb. It is derived from the Anglo Saxon "scal" and "sceal," meaning "I am obliged." By itself (as an auxiliary verb), it is no part of speech at all. It must be used as a part of another verb. As it is used in the sentences in Section
Furthermore, there is this rule (in English) concerning the use of "shall" and "will." If futurity is to be expressed, one must use "shall" in the first person and "will" in the second and third persons. If, however, determination is to be expressed, then one reverses the order and uses "will" in the first person and "shall" in the second and third person.
So that, in this case, with the use of "shall" in the third person, the idea of determination has been expressed. If the law is determined that something must be done, it can hardly be said that it is merely directing the mode of procedure.
Moreover, if one argues that the word, "shall," as it applies herein to the board, is merely directory, then why would it be illogical to hold that the same word as it applies to appellant is likewise directory? And why could not the argument be made wherever the word is used in the statutes that it is merely directory.
Let us remember, too, that in this case the agency is a litigant and comes before the court in that capacity. It should hardly be given more lenient treatment than the other litigant. It is our opinion that this section does not intend so to favor one party over the other.
Webster, in discussing its use as an auxiliary verb, says that "shall" means "am obliged" or "must." And since the past tense is "should," it can be readily seen that the idea of obligation is present. As an auxiliary, "should" is the form used to express the imperfect tense of the potential mood, which (mood) is used to indicate power, liberty, possibility, ornecessity.
Webster says further (paraphrasing what has been written earlier in this opinion): "Thus shall when used in the second or third person has a special force from the fact that the speaker predicts or promises another's action, and hence is expressive of some authority or compulsion on the speaker's part; as in youshall go; thou shalt not kill; he shall rue it."
And in 39 Words Phrases, 111, we find that:
(1) The word, "shall," is equivalent to the word "must."
(2) Generally, presumption is that the word "shall" is construed in an imperative sense rather than directory, and presumption will control unless it appears clearly from context *542
or manifest purpose of the act as a whole that the Legislature intended that a different construction should be given to the word (citing City of Gary v. Yaksich,
Also, see the following cases in which the word, "shall," was held to be mandatory:
State v. Shahadi,
Therefore, since the ordinary meaning of the word, "shall" (according to Webster and Words Phrases, cited herein), is mandatory, and since the rulings in many cases hold similarly, this court supports the position of Judge Hess in his able opinion, that the word, "shall," as used in Section
Judgment affirmed.
LONG, J., concurs.
Dissenting Opinion
I agree with my associates that Section
I do not agree that the failure of the board to file the record within ten days operates as a discontinuance of the proceeding. If this is a civil, or quasi-civil, proceeding, and the Civil Appellate Procedure Act applies, then Section
So far as I know, it has never been held that failure of the clerk to perform his duty would operate to the prejudice of the rights of either party to an appeal. And by the above statute, the failure of the party himself to file a praecipe is excused.State v. Suspirata,
If this proceeding be regarded as a criminal or quasi-criminal prosecution, the same result is obtained. The Code of Criminal Procedure makes provision for undue delay in pursuing a criminal proceeding after its institution. These provisions will be found discussed in 15 Ohio Jurisprudence (2d), 423 et seq., Section 233 et seq. At page 426 therein, it is stated *544 that "If, when the accused makes his application for discharge, whether during the time limited or at a subsequent term of court, the state is ready to proceed with the trial * * * he is not entitled to be discharged."
In the case at bar, as soon as the board received notice of the absence of the record and papers by the filing of the appellee's motion for judgment, it asked leave of the court to file the record and papers at once. The court overruled this motion. In doing so, it is my opinion that the court erred.
The judgment should be reversed and the cause remanded for further proceedings.