Dorrian v. Scioto Conservancy District

271 N.E.2d 834, 27 Ohio St. 2d 102, 56 Ohio Op. 2d 58, 1971 Ohio LEXIS 454
CourtOhio Supreme Court
DecidedJuly 7, 1971
DocketNo. 70-487
StatusPublished
Cited by289 cases

This text of 271 N.E.2d 834 (Dorrian v. Scioto Conservancy District) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dorrian v. Scioto Conservancy District, 271 N.E.2d 834, 27 Ohio St. 2d 102, 56 Ohio Op. 2d 58, 1971 Ohio LEXIS 454 (Ohio 1971).

Opinions

Cook, J.

The sole question presented by this appeal is whether the Scioto Conservancy District is mandated by R. C. 6101.45 and 6101.46 to levy preliminary assessments based upon the benefits determined by the court as provided by R. C. 6101.08 to satisfy its obligation to the city of Columbus. The answer is “no.”

The pertinent part of R. C. 6101.45 reads as follows:

“After the filing of a petition for the organization of a conservancy district and before the district is organized, the cost of publication and other official costs of the proceedings shall be paid out of the general funds of the county in which the petition is pending. Such payment shall be made on the warrant of the county auditor or on the order of the court. If the district is organized, such costs shall be repaid to the county out of the first funds received by the district through levying of assessments or selling of bonds, or the borrowing of money. If the district is not organized, the cost shall be collected from the petitioners or their bondsmen. Upon the organization of the district, the court shall make an order indicating a preliminary division of the preliminary expenses between the counties included in the district in approximately the proportions of interest of the various counties as estimated by said court. The court shall issue an order to the auditor of each county to issue his warrant upon the county treasurer of his county to reimburse the county having paid the total cost.
“As soon as any district has been organized, and a board of directors of the conservancy district has been appointed and qualified, such board may levy upon the property within the district in each of not more than two 'rears a preliminary assessment based upon the benefit determined by the court as provided by Section 6101.08 of [106]*106the Revised Code, but not to exceed three tenths of a mill on the assessed valuation thereof to be used for the purpose of paying expenses of organization, for surveys and plans, appraisals, estimates of cost, land options, and for other incidental expenses which may be necessary up to the time money is received from the sale of bonds or otherwise. This assessment shall be certified to the auditors of the various counties and by them to the respective treasurers of their counties. If such items of expense have already been paid in whole or in part from other sources, they may be repaid from the receipts of such levy, and such levy may be made although the worh proposed may have been found impracticable or for other reasons is abandoned. The collection of such assessment shall conform in all matters to the sections of the Revised Code governing the collection of assessments levied by local political subdivisions, and the sections of the Revised Code concerning the nonpayment of assessments levied by local political subdivisions shall apply. The board may borrow money in any manner provided for m Sections 6101.01 to 6101.84, inclusive, of the Revised Code, and may pledge the receipts from such assessments for its repayment, the information collected by the necessary surveys, the appraisal of benefits and damages, and other information and data being of real value and constituting benefits for which said assessment may be levied. In case a district is disbanded for any cause before the work is constructed, the data, plans, and estimates which have been secured shall be filed with the clerk of the court before which the district was organized and shall be matters of public record available to any person interested. * * * (Emphasis supplied.)

The pertinent part of R. C. 6101.46 reads as follows:

“In order to facilitate the preliminary work, the board of directors of a conservancy district may borrow money and issue notes therefore at a rate or rates of interest not exceeding eight per cent per annum in an amount not greater than seventy-five per cent of the unencumbered proceeds derived or derivable from the preliminary assess[107]*107ment levied, or which the hoard has authority to levy, under Section 6101.45 of the Revised Code, which assessment shall be pledged for the repayment thereof if and when levied. If no preliminary assessment is levied or the proceeds of the assessment levied are found insufficient to pay the interest and retire the notes issued, the same may he paid from the improvement fund. * * * ” (Emphasis supplied.)

It is the contention of the appellant that the word “may,” as used in R. C. 6101.45 and 6101.46, is mandatory in nature and that the Court of Appeals erred in interpreting that word in those sections as being permissive.

The character of a statute, as mandatory or permissive, is commonly determined by the manner in which particular terms used therein are construed.

In determining whether a statute is mandatory or permissive, it is often necessary, as in this case, to trace its use of the terms “may” and “shall.”

The statutory use of the word “may” is generally construed to make the provision in which it is contained optional, permissive, or discretionary (Dennison v. Dennison [1956], 165 Ohio St. 146), at least where there is nothing in the language or in the sense or policy of the provision to require an unusual interpretation (State, ex rel. John Tague Post, v. Klinger [1926], 114 Ohio St. 212).

The word “shall” is usually interpreted to make the provision in which it is contained mandatory (Dennison v. Dennison, supra), especially if frequently repeated (Cleveland Ry. Co. v. Brescia [1919], 100 Ohio St. 267).

Ordinarily, the words “shall” and “may,” when used in statutes, are not used interchangeably or synonymously. State, ex rel. Wendling Bros. Co., v. Board of Edn. (1933), 127 Ohio St. 336.

However, in order to serve the basic aim of construction of a statute — to arrive at and give effect to the intent of the General Assembly — it is sometimes necessary to give to the words “may” and “shall” as used in a statute, meanings different from those given them in ordinary [108]*108usage (State v. Budd [1901], 65 Ohio St. 1; State, ex rel. Myers, v. Board of Edn. [1917], 95 Ohio St. 367), and one may be construed to have the meaning of the other (State v. Budd, supra; State, ex rel. Myers, v. Board of Edn., supra; Gallman v. Board of County Commrs. [1953], 159 Ohio St. 253).

But when this construction is necessary, the intention of the General Assembly that they shall be so construed must clearly appear (General Electric Co. v. International Union [1952], 93 Ohio App. 139), from a general view of the statute under consideration (State v. Budd, supra; State, ex rel. Myers, v. Board of Edn., supra), as where the manifest sense and intent of the statute require the one to be substituted for the other (State, ex rel. Mitman, v. Greene County [1916], 94 Ohio St. 296; State, ex rel. Methodist Children’s Home, v. Board of Edn. [1922], 105 Ohio St. 438).

As Judge Stewart of this court said in Dennison v. Dennison, supra:

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Bluebook (online)
271 N.E.2d 834, 27 Ohio St. 2d 102, 56 Ohio Op. 2d 58, 1971 Ohio LEXIS 454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dorrian-v-scioto-conservancy-district-ohio-1971.