20 App. D.C. 576 | D.C. | 1902
delivered the opinion of the Court:
1. The appellant, Ferdinand Holzendorf, filed his petition in the Supreme Court of the District, on August 5, 1902, for a writ of mandamus to the Secretary of State, commanding him forthwith to institute “vigorous and proper proceedings against the Empire of Germany, and the Emperor ” thereof, for the recovery of damages, on behalf of petitioner,
2. The first error assigned is on the refusal to lay a rule upon the defendant. Section 1274 of the code of the District, embraced in chapter XLII, under title “ Mandamus,” reads as follows: “ Upon the filing of such petition the court may lay a rule requiring the defendant therein named to show cause, within such time as the court may deem proper, why a writ of mandamus should not issue as prayed, a copy of which rule shall be served upon such defendant by a day to be therein limited.”
The contention is that the word “may,” as used in the article quoted, is mandatory, and .that it was the duty of the justice to lay the rule without regard to the merits of the petition. Practically, the appellant has sustained no injury from the failure to lay the rule, as he had his hearing, and
Whilst the signification of “ may,” in the construction of a statute, is ordinarily permissive, it is quite true that it will be regarded as bearing the ordinary sense of “ must ” and “ shall,” when it can be seen that the real intention of the legislature was to impose a duty and not to confer a discretionary power. In other words, whether the word shall be treated as permissive or mandatory, depends upon what may be ascertained to be the general intent and purpose of the statute. See 20 Am. &■ Eng. Encyc. of Law (2d ed.), 237, title “ May,” where the numerous cases involving the interpretation of the word in different- statutes, are collated.
In accordance with what we apprehend to be the real legislative intent, apparent in section 1274, we are of the opinion that the word “ may ” was used therein in its permissive sense. The entire chapter of the code deals with practice or procedure, a subject that, from its very nature, must ever be left, in most of its details, to the judicial discretion. Section 1274 was intended to lay down a general rule of practice for the protection of defendants from hasty and ill-advised action in such cases, and to that extent is mandatory: the defendant must have notice and opportunity to be heard before the peremptory writ can issue. No similar reason applies in the case of the petitioner. It is of no practical consequence to him whether his petition be denied without notice to the defendant, or after, so that he have opportunity to be heard in its support, and to appeal from the denial. Appeal in either event brings up his entire case to the same extent and in the same manner. Apparently, it was the general intention in ordinary cases - — ■ an intention that will no doubt be conformed to in practice — that the petition shall not be critically scrutinized as a preliminary to laying the rule; but it does not necessarily follow that there was a further intention to compel the laying of the rule, notwithstanding it may clearly appear that the petition discloses no possible ground for relief. Such an intention ought to be
3. The court did not err in dismissing the petition. Conceding the contention, for the sake of the argument, and without pausing to discuss whether it so distinctly appears in the petition, that there has been a flagrant abuse of the rights of petitioner as a citizen of the United .States, by the officials of a foreign nation, yet the injury is not one of judicial cognizance in the United States. The duty of righting the wrong that may be done to our citizens in foreign lands is a political one, and appertains to the executive and legislative departments of the government. The judiciary is charged with no duty and invested with no power in the premises.
Even if the legislative department have the power, it has not, so far, undertaken to impose upon the Secretary of State the duty of presenting and urging all claims for redress in such cases that American citizens may submit to him for action.
When such duty shall have been imposed by statute, it will be time enough to consider the power to impose it, and, if- ascertained to exist, then to further consider whether the performance of the duty in a given case is one that necessarily involves the exercise of discretion. Whatever duty may be owed to a citizen in such eases is, as before stated, a political one, because it involves the relations of the United States with foreign nations; and the performance of that duty in its incipient stage necessitates negotiation which is exclusively the function of the executive department. The powers of that department are vested in the President, and he it is that conducts all intércourse with foreign governments notwithstanding he may habitually act through the agency of a Secretary of State appointed for the purpose:
Por tbe reasons given, tbe judgment will be affirmed, with costs. It is so ordered. Affirmed.
A writ of error to tbe Supreme Court of tbe United States was prayed and allowed.