Opinion

Dorrian v. Scioto Conservancy District

  • 27 Ohio St. 2d 102
  • 56 Ohio Op. 2d 58
  • 271 N.E.2d 834
  • 1971 Ohio LEXIS 454
Court
Ohio Supreme Court
Filed
Jul 7, 1971
Status
Published
Author
Leach
On the bench
Cobeigan, Cook, Corbigan, Duncan, Eleventh, Heebebt, Leach, Neill, Schneider, Steen
Cited by
287 cases

stating the "statutory use of the word 'may' is generally construed to make the provision * * * optional, permissive, or discretionary," while use of the word " 'shall' is usually interpreted to make the provision in which it is contained mandatory"

How later courts described this case

  • stating the "statutory use of the word 'may' is generally construed to make the provision * * * optional, permissive, or discretionary," while use of the word " 'shall' is usually interpreted to make the provision in which it is contained mandatory"
  • holding that “statutory use of the word ‘may’ is generally construed to make the provision in which it is contained optional, permissive, or discretionary.”
  • holding that the word “ ‘ “may” denotes the granting of discretion’ ”
  • indicating that “[t]he word ‘shall’ is usually interpreted to make the provision in which it is contained mandatory * * *.”

Written by the judges who cited it.

The opinion

Leach, J.,

concurring. Although I am in full agreement with the opinion of Judge Cook herein, I feel it desirable to add a few additional comments.

It is admitted in this case that no one on behalf of the city of Columbus ever demanded, or even specifically requested, that the Scioto Conservancy District levy the assessment in question. The petition filed by plaintiff in the Common Pleas Court sought a declaratory judgment as to several questions, the principal one being “whether defendant is required to levy the assessment in anticipation of which the note was issued.”

*110 The posture of this case, as presented, basically involves the determination of whether the word “may” in R. C. 6101.45 and 6101.46, as to the levy of an assesment, is mandatory as a matter of law; i. e., whether the word “may” in the statutes should be interpreted as “shall” in all cases where a conservancy district has failed to repay a loan obtained for preliminary work, regardless of whether valid reasons may exist to make such a levy impractical, if not impossible, and even regardless of the desires or best interests of the parties there involved.

In such context, I believe it apparent that the statutes authorizing a levy of an assessment on the benefitted real estate are discretionary and not mandatory.

This does not mean, however, that a board of directors of a conservancy district possesses an absolute discretion, regardless of proof of abuse thereof, to arbitrarily refuse to levy such an assessment. Discretion is always subject to abuse, and if there be proof of abuse, such discretion can be controlled and directed by an action in mandamus. This court has so held or stated on many occasions. See cases cited in 35 Ohio Jurisprudence 2d 271. In this action in declaratory judgment, no such abuse of discretion was either alleged or proved.

O’Neill, C. J., Herbert, Duncan and Cook, JJ., concur in the foregoing concurring opinion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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