
    The State, ex rel. Methodist Children's Home Association of Worthington, v. The Board of Education of The Worthington Village School District of Franklin County.
    
      Statutory construction — Amendments—“May" substituted for “shall" — Optional or permissive power conferred — Mandamus —Official discretion not controlled, when — Schools—Admission of non-resident pupils — Section 7681, General Gode — Inmates of private children’s home,
    
    1. The amendment of an existing law defining the duty of a public board or official by the substitution of the word “may” for the word “shall,” manifests a clear intent and purpose of the legislature to make the action therein referred to optional and permissive instead of mandatory.
    2. A writ of mandamus may issue only to require the performance of an act specially enjoined by law, and may not be employed to control the discretion lodged by statute in a public board or officer.
    3. The board of education of a district wherein is located a private children’s home is not required by the provisions of Section 7681, General Code, to admit to the schools of such district children who are inmates thereof who are not the children, wards or apprentices of actual residents of such district.
    (No. 17218
    Decided July 5, 1922.)
    In Mandamus.
    The facts are stated in the opinion.
    
      Mr. Lemuel D. Lilly, for plaintiff.
    
      Mr. John R. King, prosecuting attorney, and Mr. Wilbur E. Benoy, assistant prosecuting attorney, for defendant.
    
      
      Mr. James M. Butler; Mr. Claude J. Bartlett and Mr. Luther L. Boger, for Chamber of Commerce of Worthington, Ohio, amici curiae.
    
   Matthias, J.

The relator seeks a writ of mandamus to compel the board of education of the Worthington village school district to admit to the schools of such district the children who are inmates of the Methodist Children’s Home, located within said district, and which is a private institution authorized by its charter to care for such children and train them physically, mentally and spiritually. There are now 84 children of school age therein.

The board of education has refused further admission of such children to the schools of the district, stating in a resolution adopted by it that the facilities for housing pupils of the Worthington schools are now overtaxed, and that it is impossible to obtain sufficient funds to hire additional teachers and pay the expense incident to such enlargement of the schools.

Issue is made by demurrer, and the question thereby presented is whether the admission of children to the public schools of that district, who are inmates of such institution but who are in fact residents of other school districts of the state, is a duty enjoined by law upon the board of education. The decision of this question calls for an examination and consideration of the statutes having to do with the matter of school attendance. The general assembly of the state has dealt with the subject specifically and definitely in Section 7681, General Code, as follows:

“The schools of each district shall be free to all youth between six and twenty-one years of age, who are children, wards or apprentices of actual residents of the district, but the time in the school year at which beginners may enter upon the first year’s work of the elementary schools shall be subject to the rules and regulations of the local boards of education. Inmates of the proper age of county, semi-public and district children’s homes shall be admitted after the manner described in Section 7676. The board of education may admit the inmates of a private children’s home or orphan asylum located in the district, with or without the payment of tuition fees, as may be agreed upon; provided any child who is an inmate of such a home or asylum and previous to admission was a resident of the school district in which such home or asylum is located shall be entitled to free education; and provided, any such inmate who attends the public schools was prior to admission to such home or asylum a resident of another school district of the state of Ohio and a tuition fee is charged, the same method of reimbursement shall be followed as is provided in Sections 7677 and 7678; and provided further, for any such inmate who attends the public schools and who prior to admission to such home or asylum was not a resident of the state of Ohio, such home or asylum shall pay from its own funds such tuition as may be agreed upon. But all youth of school age living apart from their parents or guardians and who work to support themselves by their own labor, shall be entitled to attend school free in the district in which they are employed.”

It is to be observed that the requirement that the schools of a district shall be free to the youth of school age applies only to the children, wards or apprentices of actual residents of the district. This section then makes provision for the admission of children to the public schools who are inmates of a county, semi-public or district children’s home, and requires that they shall be admitted. This language is clear, explicit and mandatory, leaving no discretion in the board of education with reference to the admission to the schools of the district of children who are inmates of a county, semi-public or district children’s home located therein. The question presented in this case, however, has to do with children in neither of the above classes, but only with children who are inmates of a “private children’s home,” whose parents are not actual residents of the district. That such children are not to be regarded as residents of the district, and therefore entitled to free education therein, seems quite clear from the provisions of the statute to which we have referred.

This court in the case of State, ex rel. The German Protestant Orphans Asylum of Cincinnati, v. Directors of School District No. 14 Millcreek Township, Hamilton Co., 10 Ohio St., 448, in construing a similar statute, which then provided that “Admission to said schools shall be gratuitous to the children, wards, and apprentices of all actual residents in said district,” etc., held that children who were inmates of an orphan’s home are not “ ‘children, wards, or apprentices of actual residents’ in the school district within which said asylum is located, and therefore, * * * not entitled to gratuitous admission to the privileges of the public schools of said district.”

The difference in the language of Section 7681, General Code, with reference to the admission to the public schools of inmates of a county, semi-public or district children’s home and that with reference to the admission of children who are inmates of a private children’s home located in the district is significant. The former is mandatory, the latter permissive, clearly leaving the question as to admission of children from such private home to the discretion of the board of education of such district. As to the former the language is “shall be admitted,” while as to the latter it is “the board of education may admit .” The history of this legislation is convincing, if it be necessary to look thereto for a construction or interpretation of the language employed. The first statute enacted with reference to the admission of inmates of a county or district children’s home (84 O. L., 69) employed the language “at the discretion of the board of education,” etc. Prior thereto there was ho provision, mandatory or otherwise, relative to the subject. No change was made in such legislation in the respect in question until April, 1913 (103 O. L., 897), when it was provided that the schools of a district should be free to the children of school age, residents of the district, including children who were inmates of a county or district children’s home. By force of this amendment the matter of the admission of such children was removed from the discretion of the board of education.' TJp to this time there had been no reference whatever to children who were inmates of a private children’s home. That first appeared in 1915 (106 O. L., 489), at which time it was provided that the schools of each district should be free to the youth of school age who were actual residents of the district, including children who were inmates of a county, or district, or any public or private children’s home located in such district. Hence, while such .legislation was in force, the board of education had no discretion with reference to the admission of children who were inmates of either a county or district or public or private children’s home located within the district. Then came the enactment of the section now under consideration, which makes the admission of the inmates of a county, semi-public or district children’s home located within the district mandatory, as it was theretofore, but in contradistinction thereto again made the admission of children who were Inmates of a private children’s home permissive and discretionary with the board of education of such district. While as to some matters these statutes are not entirely clear, there can be no question from the language used, and especially because of the change from permissive terms to mandatory terms and then back again to permissive language, as to the intent and purpose of the lawmaking body. This purpose and intent seems too clear to require or justify extended discussion. The legislative body has left nothing for the court to construe or interpret. In language that cannot be misunderstood and cannot possibly be tortured into a different meaning by so-called construction or interpretation a statute previously plainly mandatory has been made permissive and discretionary. In applying a fundamental rule of construction this court held in the case of State, ex rel. Mitman, v. Board of County Commissioners of Greene Co., 94 Ohio St., 296, that “When a section of an existing law is amended by the general assembly by striking ont therefrom ‘may’ and inserting in lieu thereof ‘shall/ a clear intent is manifested to thereby alter the directory nature of the law and render it mandatory.” The language of Nichols, O. J., who rendered the opinion, is particularly applicable here: “Where, as in the instant case, the general assembly deliberately amends an existing law by striking out may and substituting shall, it would be absurd for the court to deliberately give the meaning of may to the newly substituted shall. It would indeed be a mockery in the way of construction and would be equivalent to a judicial repeal of the amended act and a judicial re-enactment of the former law.”

In the amended law involved in this action there is more than the mere change of shall to may, for here, in the same section, the legislature deliberately retained the shall as to one class of children’s homes and substituted may for shall as to the other class of children’s homes with which it was dealing. The conclusion which we have reached and announced need not rest upon the presumption of the legislative intent to change the effect and operation of a law by a change in the language thereof (County Board of Education of Hancock Co. v. Boehm, 102 Ohio St., 292), but is required by the clear and express language of the legislature, which leaves no room for doubt as to its meaning or as to the intent and purpose of the legislature in its enactment.

The rule is (2 Sutherland on Statutory Construction [Lewis, 2 ed.], Section 640) that the words “may” and “shall” are to he taken in their ordinary and nsnal sense, unless the sense and intent of the statute require one to be substituted for the other. It would seem absurd to substitute one for the other in the construction of this statute on the theory that such substitution is necessary to carry out the manifest intent and purpose of the legislature, when the legislature has in succeeding sentences in the same section employed the words “shall” and “may” not interchangeably but in contradistinction, and with the evident purpose of making one provision peremptory and mandatory and the other optional and permissive; and such intent is demonstrated almost to a mathematical certainty by the history of the legislation upon the subject above set forth.

Attention is directed to the general provisions of other sections of the statute as to the right and privilege of attending the public schools and the compulsory school attendance provision. But these general provisions cannot control the particular and specific provisions of other sections regulating such attendance, and prescribing the place and conditions thereof; and that is particularly true because the specific provision is the later enactment. It is to be noted that it is not required that children attend the public schools. The provisions of Section 7763, General Code, are that children of specified age shall attend a public, private or parochial school.

The constitution of the state confers upon every citizen of the United States who shall have been a resident of the state one year preceding the election, and of the county, township or ward in which he resides such time as may be provided by law, the right to 'vote at all elections, and yet no one would question the authority of the legislature to regulate elections; and numerous conditions and requirements have been imposed and prescribed, such as a limitation of the hours of voting, the requirement of registration, the method of marking the ballot, etc.

This court has but recently held in the case of Devine v. State, ex rel. Tucker, Jr., ante, 288, that the requirement of the statute that a black lead pencil be used in marking the ballot is mandatory.

The permissive and discretionary character of the provision in question here being clearly manifested by the language employed as well as by the history of such legislation, our conclusion, therefore, falls within the rule announced in the syllabus in the recent case of Devine v. State, ex rel. Tucker, supra. A statement of Wanamaker, J., in the opinion in that case, at page 294, is also pertinent here: “The language of the general assembly being plain and peremptory, there is neither right nor room for the court to construe it. Appeal must be taken to the legislature if a change in the law is needed or demanded.” It is urged that in the amended Section 7681, General Code, “the matter of tuition was the optional thing, not the matter of admission.” Such conclusion can be reached only by holding that the mandatory “shall” in the sentence relative to county, semi-public and district children’s homes is to be regarded as carried forward and understood in the next sentence, which is a separate and distinct sentence and relates to private children’s homes, and that the permissive “may” in that sentence has reference only to the payment of tuition fees. In this section, as it existed prior to the last amendment, the mandatory language repeated a second time expressly included public and private children’s homes. After first providing that the schools of each district shall be free to all youth of the prescribed age who are children, wards or apprentices of actual residents of the district, including children who are inmates of a county or district, or of any public or private children’s home, or orphan’s asylum located in such school district, in the next sentence, as if for emphasis, it is provided that “the board of education of any district in which a public or private children’s home or orphans’ asylum is located * * * shall admit,” etc. In the amended section, which is the statute now in existence, the legislature removed private children’s homes from these mandatory provisions deliberately, and, we think, designedly, for if it had intended that the provision as to private children’s homes should be mandatory there would have been no reason whatever to make any change in that portion of the section; and if in that sentence it had said “shall admit” it would not have said in the very next sentence “may admit.” Surely if the optional “may” refers only to the matter of charging tuition fees, the previous sentence would not have been amended but left as in the prior enactment. Now it is suggested that the court by construction replace private children’s homes in the mandatory provision, and make this provision read “shall admit,” although it in fact reads “may admit.” That is not statutory interpretation; that would be statutory enactment. It would not only be adding something to the legislative enactment, but it would be a reinsertion by the court of the very provision repealed by the legislature.

By Section 2, Article VI of the Constitution, it is provided that the general assembly shall make such provisions, by taxation, or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the state, and by Section 3, Article VI of the Constitution of the state, power, full and complete, is vested in the legislature to make provision for the organization, administration and control of the public school system of the state, supported by public funds. Pursuant to the authority so vested the legislative branch of the state has enacted the laws to which we have referred, and many others, with a view to making most adequate and satisfactory provision for the efficient education of the youth of the state. With the wisdom or the policy of such legislation the court has no responsibility and no authority. Its duty is limited to the interpretation of such provisions as are not clear, and the carrying into execution of laws enacted which are not in conflict with constitutional provisions. It cannot be contended that any provision of the constitution is violated by the statutes here in question, and we find not only that such statutes do not enjoin upon the-defendants a duty which the relator seeks to enforce, but, on the contrary, clearly warrant the attitude and action of the board of education.

It is neither the province nor the right of courts to annul the plain provisions of the statute because of the belief that the observance or enforcement thereof will work an inconvenience. The remedy is with the legislature. So long as in force such law is as binding upon the courts as upon an individual. No> decisions are more harmful in their ultimate effects than those wherein the courts attempt, by statutory interpretation, or rather by statutory construction,, to provide for a particular situation in a manner believed to be popularly desired, and such unwarranted usurpation of' the legislative power merits the condemnation usually accorded it after full and candid consideration and upon deliberate and mature judgment.

Writ refused.

Johnson, Bobinson and Jones, JJ., concur.

Marshall, C. J.,

dissenting. The judgment of this court in this cause, concurred in by a bare majority of the court, is so inequitable, and so far discriminates against private charities, and operates so great an injustice to those who are charitably disposed, and the conclusions reached are so violative of the well-settled rules of statutory construction, that I feel called upon to register a protest, with a view of preventing the principles declared in the majority opinion from becoming the settled law of this state. While the facts of this controversy are very meagerly stated in the majority opinion, enough will be found therein for an understanding of ■ the principles discussed; It will of course be presumed that the conclusions reached in the majority opinion are based upon the facts stated in that opinion, and I desire therefore to call attention to one or two facts therein stated which are not exactly in accordance with the true situation. It is true that the petition in mandamus does allege that “the facilities for housing pupils of the Worthington schools are now over-taxed, and whereas it is impossible to obtain sufficient funds for hiring additional teachers and pay the expenses incident to such enlargement of the schools,” etc. It must be borne in mind, however, that at this same, term of this court another cause was argued (104 Ohio St., 317) in which it was sought by the pros¿euting attorney of Franklin county to compel the school districts from whence the children of the Methodist Home originally came to pay their proportionate share of the cost of maintaining the Worthington schools. That relief was granted, and that portion of the petition pertaining to the cost of maintenance of schools can no longer have any application. That portion of the above-quoted allegation from the petition, relating to the enlargement of school facilities, is still an element in the case, but it is impossible that that can have any controlling importance in the case, because by the provisions of Section 7681, General Code, the same difficulty would arise in any school district where a public children’s home is located.

The majority opinion also seeks to capitalize the fact that the Methodist Children’s Home is authorized by its charter to train the children, “physically, mentally and spiritually.” The fact that that corporation has taken the precaution to obtain the necessary authority to do such things should not be held to relieve the state of Ohio from diseharging the duty enjoined upon the people hy the state Constitution, the Ordinance of 1787, and the statutes of Ohio, to educate the youths of school age within the state of Ohio.

The question for determination in this case is whether the board of education of the Worthington village school district can be compelled to admit to the public schools of the district the inmates of school age of the Methodist Children’s Home Association of Worthington, for the year beginning September, 1921. The determination of this question depends not alone upon the true meaning and application of Section 7681, General Code, and the proper construction to be given to that portion of the section which reads “The board of education may admit the inmates of a private children’s home or orphan asylum located in the district, with -or without the payment of tuition fees, as may be agreed upon,” but also upon the true meaning of several other sections of the school code.

It is contended on the one hand that by reason of the employment of the word “may” the duty is at most discretionary, and that the discretion rests in the board of education of the school district. It is on the other hand contended by the Home Association that the word “may” should be construed as “shall,” thereby making the word mandatory.

It is not doubted that under certain conditions and within certain limitations the word “may” is properly construed as “shall” and therefore an ambiguity is at once presented for determination, and therefore a proper case for statutory construction. It is the proper province of statutory construction to determine the sense, real meaning, or proper explanation of obscure and ambiguous terms and the application of the same to the case in question. In determining such meaning, the primary rule is .to ascertain the legislative intent, and such intent may properly be determined by recourse to other secondary rules of construction.

It should be stated at the outset that it is conceded by counsel for the board of education that Section 7681, General Code, is constitutional, and it is also conceded by counsel for the Home Association that if the construction making the duty to admit the children a mandatory one is held to be the proper construction the statute is constitutional. In the view I have taken of this entire controversy, it will be assumed that the statute is constitutional.

We will first compare the language above quoted with other provisions found in the same section. It will be found that whatever agreement may be made relating to the payment of tuition will not be material to the Home Association, because in any event any compensation to be paid will not be paid by the home, but, on the contrary, ample provision is made in the latter provisions of the section for any such payment to be collected from the boards of education in those districts from which the children originated. It therefore creates the rather absurd situation of the trustees of the home making a contract for the payment of tuition in which the obligation will be created against a third party. On the theory that the legislature will not be held to have intended to create an absurd situation, it would seem to be a more sound theory that the legislature intended that the inmates of the home should at all events be admitted to the schools and that it should be optional with the board of education as to whether they would be educated without charge or whether the payment of tuition would be required.

It will be further found that nowhere else in the statutes is provision made for the inmates of county, semi-public and district children’s homes being educated in the public schools of the districts in which such public homes may be located. Inasmuch as public homes and private homes are mentioned in the same section of the statutes, and not • elsewhere, it would hardly be presumed that the legislature intended that inmates of public homes maintained by public taxation should have the benefit of an education, but that the legislature was indifferent upon the subject of the education of children being maintained in homes supported by private bounty. True, it might properly be inquired why the statute did not mention all homes, without distinction between public and private, if it was intended that all should be treated alike, but the answer may be found in the difficulty usually presented in attaching an amendment to an existing statute, and the courts may not be required to answer the very difficult question as to why the legislature has not used more apt language. If it should be contended that the legislature did intend to discriminate between the inmates of public homes and the inmates of private homes, the legislature would probably be exceeding its power, because of the limitations of Section 26, Article II of the Ohio Constitution, which provides that all laws of a general nature shall have a uniform operation throughout the state. It would seem more reasonable to discriminate in favor of the private charity, if for no other reason than to encourage private benefactions. The apostle Paul, in his epistle to the Corinthians, said: “And now abideth faith, hope, charity, these three; but the greatest of these is charity” (I Corinthians 13:13). Upon no principle of sound sense, logic, or legislation, can it be assumed that the legislature intended that the inmates of private children’s homes should not be educated at all. The state of Ohio is a part of the old Northwest Territory and the ordinance of the Confederate Congress, passed July 13, 1787, known as the Ordinance of 1787, providing for the government of that territory and for its division into states to be admitted into the Union, in Article III thereof, enacted: “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”

This provision was Just as obligatory upon the future policies and future governments of the territory as was that provision of Article VI thereof, which provided that: “There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted.” The obligations of that ordinance were fully recognized by the framers of the original constitution of 1802, and it was said in the preamble to that constitution, in part: “We, the people of the eastern division of the territory of the United States, northwest of the river Ohio, having the right of admission into the general government, as a member of the Union, consistent with the Constitution of the United States, the ordinance of Congress of one thousand seven hundred and eighty-seven, and of the law of Congress, entitled ‘An act to enable the people of the eastern division of the territory of the United States, northwest of the river Ohio, to form a constitution and state government, and for the admission of such state into the Union, on an equal footing with the origimal states, and for other purposes* * * do ordain and establish the following constitution or form of government; * * *”

The Constitution of the state of Ohio, as it exists at the present time in Sections 1, 2 and 3, Article VI, contains provisions which fully commit the legislature of the state of Ohio to the obligation to make such provision, by taxation, or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the state, and requiring provision to be made by law for the organization, administration and control of the public schools system of the state. The equal benefit of public funds applicable to school purposes cannot be conferred upon all of the children of school age throughout the state if children of school age in private children’s homes may be denied admission to the common schools where such homes are located. The foregoing observations are not made to reflect upon the constitutionality of Section 7681, but to show that a construction of that statute should give meaning to the language employed which will be in harmony with the constitutional provision referred to.

For the purpose of showing the general legislative intent concerning the school attendance of children of school age, we quote the following from the recent statutory amendments above referred to:

“Sec. 7762. All parents, guardians or other persons who have the care of children who are of compulsory school age as indicated in Section 7763, General Code, * * * shall instruct them or cause them to be instructed, in * * * those branches or in such other branches as are suited to the age, employment and advancement of the particular children and are included in the subjects taught in the schools of the state.”

‘ ‘ See. 7763. Every parent, guardian or other person having charge of any child of compulsory school age * * * must send such child to a public, private or parochial school for the full time the school attended is in session, which shall in no case be for less than thirty-two weeks per school year * * * Compulsory school age shall mean six to eighteen years of age * *

“Sec. 7770. * * * The attendance officer or assistant may also take into custody any youth of compulsory school age not legally employed on an age and schooling certificate who is not attending school and shall conduct such youth to the school he has been attending or should rightfully attend.”

“Sec. 7773. * * * When any child of compulsory school age, in violation of the provisions of this chapter, is not attending school, the attendance officer shall notify the parent, guardian or other person in charge of such child of the fact, and require such parent, guardian or other person to cause the child to attend school forthwith; and it shall be the duty of the parent, guardian or other person in charge of the child so to cause its attendance at school. Upon the failure of the parent, guardian or other person in charge of the child to do so, the attendance officer shall make complaint against the parent, guardian or other person in charge of the child in any court of competent jurisdiction.”

“Sec. 7778. Every child actually resident in the state shall be amenable to the laws relating to compulsory education, and neither he nor the person in charge of Mm shall be excused from the operation of said laws or the penalties under them on the ground that the child’s residence is seasonal or that the parent of the child is a resident of another state or that the child has attended school for the legal period in another state. The board of education in a/ny school district shall admit without tuition charge any child actually resident in the district who would otherwise be deprived of school privileges in this state.'"'

All the statutes above quoted from are in pari materia with the sections under construction, and if it is the duty of persons having care and charge of children to send them to the public schools of the district in which such child is found, and is the duty of the attendance officer to conduct them to the school, it follows that it is the duty of the school board to admit such children. The foregoing statutes are at least useful in indicating the general legislative policy of the state of Ohio in the matter of education of youths of school age. It is a governmental maxim, oft quoted, that schoolhouses and schoolmasters are forts and garrisons of any republic. The maxim does not refer to an empty schoolhouse, nor to a teacher without pupils. As further reflecting upon the essential policy of the state, it must be recognized that an educated citizenship is the hope and mainstay of any republic, “dovernmeni of the people, for the people, and by the people,” is neither practical nor possible unless aided and fostered by education. It is a generally accepted truth that anarchy and bolshevism have their Source and growth in ignorance, and the ever-present menace of those dangerous doctrines calls for eternal vigilance on the part of those responsible for the public school system. These views are given emphatic encouragement in the statistics of illiteracy published in the 1920 census, which show that in the United States six per cent, of all persons over ten years of age are wholly illiterate, and for the state of Ohio two and eight-tenths per cent. While the Ohio percentage is small as compared with the average of all the states, it looks large by comparison with that of the state of Iowa, in which state it is only one and one-tenth per cent. The state of Ohio with all its governmental subdivisions is spending ninety millions of dollars annually upon its public schools, and it must not be presumed that the legislature intended that any part of the orphan children of school age in the state of Ohio should be denied their equal participation in the benefits of that expenditure.

This entire question is easily disposed of if it can properly be determined that the word “may” was used in a mandatory sense. It is well settled that it may be thus construed in a proper case, and it is proper therefore to inquire in what class of cases it is to be so construed. As a general proposition, the rule applies to a statute which imposes a duty or confers a power on a public officer for public purposes. The statute relating to the probate of wills was given this interpretation in the case of Lessee of Swazey’s Heirs v. Blackman, 8 Ohio, 5, at page 18, from which we quote: “It declares that the executor, etc., may cause the will to be brought before the court of common pleas; and ‘may’ means ‘must,’ in all those cases where the public are interested, or where a matter of public policy, and not merely of private right, is involved.”

The same meaning was given to the word “may,” as found in the statute of limitations, in the ease of C., S. & C. Rd. Co. v. Mowatt, 35 Ohio St., 284, at page 287, from which we quote: “Where authority is conferred to perform an act which the public interest demands, may is generally regarded as imperative. Whether it is to be so read in another case depends upon a fair construction of the statute.”

From 2 Sutherland on Statutory Construction (Lewis, 2 ed.), Section 634, we quote: “But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called on to do so.” Every syllable of the words just quoted is applicable and cogent.

Our attention has been very forcibly called to the case of State, ex rel. Mitman, v. Board of County Commrs. of Greene Co., 94 Ohio St., 296, in which there was a discussion of the force and effect to be given to an amendment to a statute in which the amendment substitutes the word “shall” for the word “may.” Upon the question actually decided in that case, and upon the peculiar nature of the statute then under construction, no fault can be found with the conclusions there reached. The case here under consideration presents a different question. It is true that in the amendment of Section 7681 the word “may” was substituted for the word “shall,” and if that had been the only change made by the amendment, we would without hesitation say that it was intended to make the statute permissive instead of mandatory as it previously existed. We should, however, look to all of the changes made by the amendment and ascertain the evils if any to be repressed and the remedy to be advanced. Courts in construing a statute thus amended should not seek to merely make the statute operate differently, but rather to make it remedy the evil which before existed. A study of the entire section before and after amendment discloses that before amendment it required that the tuition of children in private children’s homes should be. paid by the county commissioners of the county in which the home is located. After amendment, the tuition was required to be paid by the boards of education in counties of the children’s last residence. In any large private children’s home, where children from other counties are being cared for, it is an injustice to visit the expense upon the county where the home is located, and it is more just and equitable that this expense should be visited upon the counties from which the children originated, and this was ■ undoubtedly the principal purpose the legislature had in mind in amending the statute. That case does not therefore authoritatively outweigh the other rules of construction herein discussed.

By virtue of the well-settled, well-recognized governmental policy relating to the subject of education prevailing in the state of Ohio, as disclosed by the Ordinance of 1787, the Constitution of the state, of Ohio, and the numerous statutes relating to compulsory education, and by reason of the recognized necessity for educated citizenship, as a condition to the stability of the republic, and by reason of the established fact, as shown by the 1920 census, that one hundred and thirty-four years after the adoption of the federal constitution there yet remains an inexcusable percentage of illitéracy, and recognizing that the statute under construction must either afford or deny to a large number of orphan children of the state of Ohio the means and the opportunity to obtain an elementary education, the conclusion must be reached that there is something in the nature of the thing empowered to be done and in the object for which it is to be done, and something in the conditions under which it is to be done, and something in the title of the persons for whose benefit the power is to be exercised, which couples the power with the duty and therefore brings the entire question clearly within the rule requiring the word “may” to be construed in the imperative sense rather than the permissive.

The majority opinion is based almost exclusively upon an alleged interpretation of Section 7681, General Code, and almost entirely ignores all other sections of the code which have hereinbefore been referred to and quoted, and a careful examination of the majority opinion discloses that reference is made only to Section 7763, General Code. Section* 7763 is less important than any of the other sections which have been herein referred to, and I cannot help feeling inclined to the opinion tha.t if those other sections had been carefully considered by the majority of this court a different conclusion must have been reached. Surely all those sections are in pari materia, and all those sections taken in conjunction with Section 7681 should create a clear legal duty on the part of the board of education of the Worthington district to educate all youths of school age whose home is within the territory comprised within the Worthington school district. The majority opinion turns entirely upon the proposition that the word “may” as employed in Section 7681 is intended in a permissive sense. While the writ of mandamus should be awarded in this ease, and while the strongest reason for so deciding may be found in construing Section 7681 in conjunction with other sections hereinbefore referred to, there is another equally strong basis for allowing the writ in a construction of Section 7681, General Code, standing alone. The portion of Section 7681, General Code, which is the bone of contention in this case is as follows: “The board of education may admit the inmates of a private children’s home or orphan asylum located in the district, with or without the payment of tuition fees, as may be agreed upon.” Keeping in mind that the word “may” is being construed as being employed in a permissive sense, and keeping in mind all of the other sections of the code herein-before quoted, and which must be held to be m pari materia with Section 7681, and observing the well-settled rule of construction that all those statutes must, if possible, be given full force and effect, and also keeping in mind that the language above quoted is amendatory of a la.w theretofore existing, and endeavoring to ascertain what was the legislative intent and what was the legislative purpose intended to be served by making the amendment, what is the true construction of the language above quoted?

The old statute before amendment made it obligatory upon the school board to admit the inmates of a private children’s home and upon the county commissioners to pay the tuition. The amendment of 1917 omits the provision that the county commissioners shall pay the tuition and makes provision for collection of tuition from the school districts where the children formerly resided. A careful survey and comparison of the statute as it formerly existed with its language after the amendment, at the same time endeavoring to harmonize the amended section with other sections of the code hereinbefore quoted, indicates that it was the legislative intent to relieve the county commissioners of the county wherein the private school is located from the entire expense of educating such children and to make the more just and equitable provision of charging the expense of such tuition to the school districts where the children had their legal residence. It was not necessary in making the amendment to enjoin the duty upon the board of education of the district in which the school is located to admit the pupils, because that duty is already enjoined by the other sections of the code hereinbefore quoted. It is therefore more reasonable to suppose that Section 7681 was not intended to have any relation to the duty of admitting pupils, but rather was only intended to give the board of education the option of educating them without charge or requiring the payment of tuition.

In other words, the matter of admission is covered by other sections of the statute, and the optional thing to which the word “may” in Section 7681 applies is the matter of tuition fees only. If it should be held that it was optional with the board of education as to whether or not it should admit the pupils, then the words “with or without the payment of tuition fees” would become entirely meaningless. If the board of education might exercise a discretion in the matter of admission, it would necessarily follow that the board could admit the pupils upon such terms as might be agreed upon. The legislature having expressly stated that the tuition fees might be the matter of agreement precludes the idea of anything else being left open to agreement. I have thérefore reached the conclusion that by the provisions of other sections of the code, taken in conjunction with Section 7681, General Code, the duty to admit the pupils is mandatory, and that by the provisions of the language of Section 7681, above quoted, the matter of tuition fees is optional.

This decision is destined to produce some unfortunate results. The possibility that it might result in the children of private orphans’ homes being reared in illiteracy is not to be thought of, because it would be a freak species of philanthropy which would provide food, clothing and shelter for orphan children and neglect their education. It is, however, likely to result in the dissolution of some private charities, or a diminution of the number of the children cared for.

In the case at bar if it results in the maintenance of a private school within the home it will be even more unfortunate. The schools of the Worthington district can be better graded by the addition of the eighty-four pupils of the home, and it must be admitted that the children of the home will be benefited by concourse with the more fortunate children of the families of the Worthington district. The outstanding evil of this decision is that it causes segregation of the orphan children, thereby emphasizing and making them conscious of their misfortunes without any compensating benefits. Again, it will discourage philanthropy at a time when the world stands in greatest need of it. The key to judicial interpretation is the legislative intent, and surely it may not reasonably be presumed that the legislature intended such absurd and damaging results.  