But it is the high prerogative of the Supreme Court of the United States to determine the limitations of the laws of congress, and declare their harmony, or conflict, with the Constitution. The subordination and respectful deference of all other courts within the national jurisdiction, to the adju dication of these questions in that court is a duty; because such adjudication is the law of the land. The judgment of the national court of last resort, in May, 1871, that all debts, whether created before or after the passage of the "legal tender act," were payable in the paper issues authorized by congress, determined and fixed the rule of legal duty. And whether loans in gold coin should be solvable in the like, or in depreciated paper, was thereafter to be determined at the forum of conscience.

The relator further insists that the language of the joint resolution, though permissive in form, is imperative in law.

The cases are numerous where courts of the highest authority have held that laws authorizing a public officer, or trustees under a charter, to do an act, imposes upon them an imperative duty. In many other cases of like authority the courts have held that the same or similar language is not imperative, but conveys a mere discretionary power. It is said in some cases that "may" means must. But the law has made no new lexicon in this class of cases to give exceptional meaning to words. Like all other statutes, the intent and purpose of the legislature is the true guide and criterion of construction. Mr. Smith, in his work on Statute and Constitutional Law and Construction, p. 724, has very clearly stated the rule. "It is the general rule in the construction of statutes that the word "may" in a public statute is to be construed "must" in all cases where the legislature means to impose a positive and absolute duty, and not merely to give a discretionary power; but no general rule can be laid down upon this subject, further than that exposition ought to be adopted in this as in other cases, which will carry into effect the true intent and object of the legislature in the enactment." If the case at bar is to be determined by this rule, we think its solution is easy. Up to the time of the promulgation of

the judgment of the Supreme Court of the United States, in Hepburn v. Griswold, the treasurer had been paying principal and interest of the State bonds in the paper currency provided by congress. At the session of the legislature next after that decision in October, 1870, the governor in his annual message called the special attention of the legislature to that decision, and urged that provision be made to pay the debt of the State in accordance with the requirements of law, that no taint might attach to the good faith and credit of the State If we consider the evidence aliunde, the mode and manner in which the joint resolution was drawn, modified, and shaped in committee, and the avowed reasons for the form ultimately given it, there can be no doubt that the legislature intended merely to authorize the treasurer in his discretion to pay this class of debts in coin. But we think the joint resolution must be interpreted by the language used, the circumstances existing at the time, and the exigencies that called for its adoption. The assumption that the legislature was seized with a sudden repentance and remorse for having paid the creditors of the State in a depreciated currency, and, in virtuous chagrin, resolved thereafter to pay in gold, is assuming for it an abnormal condition, and would require positive evidence to establish it. The highest courts in fifteen of the States, including our own, had then decided that all debts could be lawfully paid in this paper issue; and the public conviction that the "legal tender act" had an important agency in crushing an odious rebellion was so deep, that whoever questioned the moral or legal propriety of paying debts in greenbacks, was deemed oblique in morals, perverted in judgment, and wanting in patriotism. It was the unexpected decision in Hepburn v. Griswold that constrained the action of the legislature. And the public agitation resulting from that judgment, and the agencies at work to change or modify that decision, with which all but moderately acquainted with public affairs were familiar, induced that body to shape the resolution in this discretionary form. The legislature intended to enable the treasurer to conform to the law as interpreted by the courts, and so long as that interpretation prevailed, and no more.

II. At the time the demand was made the relator had Lo claim, de jure, to require payment of his bonds in gold.

The rule is well stated by Chancellor KENT, in the Newburg Turnpike Co. v. Miller, 5 J. C. R. 112, "that the word ‘may' means must, or shall, only in cases where the public interest and rights are concerned; and where the public or third persons have a claim, de jure, that the power should be exercised."

Had the relator, on the first day of June, 1871, a claim, de jure, that the bonds should be paid in gold?

The Supreme Court of the United States had then solemnly declared that the "legal tender act" was in no degree re strained or limited by the constitution. And, therefore, these bonds could be lawfully paid in paper money, and a tender of the sum due in greenbacks would have canceled the bords. This is not, then, a case where courts have ever construed words permissive to be imperative. Indeed, "may" never means must in law, any more than in philosophy. But when authority is given to exercise a power beneficial to a citizen, and the right to have that power exercised continues and subsists, courts hold that the duty to exercise that power is abso lute, and will make it imperative, for such is deemed the intent of the legislature. The right and the duty are correla tive.

III. It is claimed that the joint resolution of the senate and house of representatives, without the approval of the governor, imposes no legal duty upon the treasurer. This resolution purports to authorize the treasurer to draw money from the treasury. The 17th sec., part 2d of the constitution of this State, declares that "no money shall be drawn out of the treasury unless first appropriated by act of legisla tion." The 11th sec. of the articles of amendment declares that "every bill which shall have passed the senate and house of representatives shall, before it becomes a law, be presented to the governor," etc. There would seem no ground for claiming that this joint resolution of the two houses has the character of a legal enactment. The gov ernor, under the constitution of this State, is a co-ordinate

branch of the government, and a necessary party to all "acts of legislation." But the court have not considered, and do not decide whether, if the petition was otherwise well founded, relief might not be given.

The writ of mandamus is refused; the petition is dismissed, but without costs.

The rule of construction of statutes by which "may" is made to read shall, is based upon the rule that, where the statute enacts that a thing may be done by any particular officer or person named, and the thing to be done is in favor of justice or the public good, then such officer or person is imperatively bound to do the act. "For example, the 23 Hen. VI. says the sheriff may take bail; that is construed he shall, for he is compellable to do so." Carth. 293; Salk. 609; Skinn. 370; Bouvier Law Dio tionary, Tit. May. So that where it was enacted that "the Lord Chancellor 'may' grant a commission of bank. ruptcy," it was construed he must do so, and the Lord Keeper said "it had been so resolved by all the judges." Alderman Blackwell's Case, 1 Vernon 152. And in Attorney General v. Cook, 3 Atk. 166, it is said, "shall and may, in acts of parliament or in private constitutions, are to be construed imperatively." This was where the governor of a hospital had power, by the words "shall and may," to remove the pensioners of the hospital for being guilty of "drunkenness or any debauchery," and the Lord Chancellor, on a petition to restore them, said the governor had no discretion in the matter. The rule may be regarded as nearly universal, probably, to construe "may" as equivocated to "shall have power to," in enabling statutes, since it is presumable that the legislature would not probably

enact a power unless it had intended its exercise whenever the occasion for its creation should occur; nor would it be supposed that a statute intended to confer a merely discretionary power would, ordinarily, leave it to depend upon the force of the auxiliary verb. Discretionary powers reposed in public

officers are commonly more specifically defined. And it is a familiar principle of the law that arbitrary discretion is never reposed in any public officer. It is only a legal discretion which is ever intended to be reposed in any public officer. There are very many important functions pertaining to judicial administration which must depend very largely upon the discretion of the judge. But this, as has been often said, imports the judgment of the magistrate upon the circumstances of the particular case, when viewed in the light of judicial precedent.

The principal case is one entirely different from any of the precedents where "may" has been allowed to have the force of must or shall. Here is no power created for any public purpose, but only a private discretion given by a debtor in the only mode in which it could be given, to its financial agent, in regard to the mode of their meeting its liability-that is, to pay them in such currency as the decisions of the only tribunal having final jurisdiction of the question should hold obligatory. The resolution was, in fact, nothing more than a mental resolve of a natural person, being a debtor, on, at most, a clerk. It was in no sense a promise or private consultation with his paying undertaking toward the creditor, calculated or intended to modify the origi. nal security; and if it had been so made and intended it would be of no validity, not being upon any safficient

consideration. So that in every view to be taken of the case the decision seems to be most unquestionable. If the treasurer had refused to pay at all, having the money for that purpose; or if he had refused to pay according to existing decision of the Nat.onal Su. preme Court, the remedy of mandainus would probably have been available.

I. F. R.

Supreme Court of Kansas.

DAVID H. MITCHELL V. THE BOARD OF COUNTY COMMISSIONERS, OF LEAVENWORTH COUNTY et al.

When a party has a general deposit of current funds in a bank, and on the 28th day of February gives a check for such funds payable in legal tender notes, and notes of that character are handed to him, and he makes a special deposit of such notes in the same bank, and three days afterward changes his special deposit of legal tender notes into a general deposit of current funds, and where the whole transaction is for the sole and express purpose of escaping taxation on such deposit: Held, That as to the government, the transaction was void, and the actor not entitled to the intervention of the courts to be relieved from the taxes imposed on such deposits.

This was a bill to restrain the defendants from the collec tion of certain personal taxes outstanding on the tax roll of the county.

In June, 1870, plaintiff, who was a citizen and resident of Leavenworth county, made out and returned to the county clerk a statement of his personal property, money and effects liable to taxation.

On February 28th, 1870, plaintiff had on deposit in the banking house of Scott & Co., in Leavenworth, the sum of $19,350 in current funds belonging to himself, and on that day he gave said house a check for his entire deposits, payable to himself, in United States legal tender treasury notes, commonly called greenbacks, and the plaintiff then received said amount in said legal tender notes, and inclosed them in a sealed envelope and immediately returned them thus sealed up to the bank, and afterward, on the 3d day of March, 1870, the plaintiff deposited all of said money with said bank, as a general and ordinary deposit of current funds No part of said sum was included in the statement returned as aforesaid to the county clerk.

The funds thus on deposit by the plaintiff were drawn out of the bank as aforesaid, and left on special deposit, and re-deposited as aforesaid by the plaintiff for the sole and express purpose of escaping taxation on the funds so belonging to him, for the year 1870.

Subsequently, on October 22d, 1870, an examination was