OAG 85-2.

• Case Date: January 04, 1985
• Court: Oregon

Oregon Attorney General Opinions 1985. OAG 85-2. 350OPINION NO. 85-2[44 Or. Op. Atty. Gen. 350]No. 8162January 4, 1985The Honorable Chuck BennettState Representative FIRST QUESTION PRESENTEDORS 166.290 provides that a sheriff "may" issue a license to carry a concealed weapon if certain circumstances exist. Does the 351word "may" mean "shall," thus imposing a duty on the sheriff to issue licenses?ANSWER GIVENYes.SECOND QUESTION PRESENTEDAre the provisions in ORS 166.290, that a person applying for a license to carry a concealed weapon be of "good moral character" and that "good cause exists" for issuance of a license, impermissibly vague in granting discretion to the sheriff to determine whether to issue a license?ANSWER GIVENNo.THIRD QUESTION PRESENTEDORS 166.260 provides exemptions from the general prohibition against carrying a concealed weapon without a license. Does the reference in subsection (5) to organizations which are authorized to purchase or receive weapons from the United States or this state include persons who are members of clubs enrolled in the United States government's marksmanship program under the Director of Civilian Marksmanship?ANSWER GIVENNo. It applies only to the clubs themselves, and club members come under the exemption only when the club's weapons are in use in the club's organized marksmanship training program. DISCUSSION I. Sheriff Must Issue License Under Certain Circumstances ORS 166.290(1) provides in part:

"The sheriff of a county, upon proof before him, that the person applying therefor is of good moral character, and that good cause exists for the issuance thereof, may issue to such person a license to carry concealed a pistol, revolver or other firearm . . . ." (Emphasis added.)

The normally permissive "may" and the normally mandatory "shall" have a long history of being interchanged in the interpretation of various statutes in order to carry out the intention of the legislative body which used the term. See Local 1724B v. Bd. of Cty. Com., Lane Cty., 5 Or App 81, 482 P2d 764 (1971). If 352necessary to carry out legislative intent, "may" is construed to mean "shall." In Dilger v. School District 24CJ, 222 Or 108, 352 P2d 564 (1960), for example, the court, in construing a released time statute for public school students, concluded that legislative intent required that "may be excused" be interpreted to mean "shall be excused" by the school administrator upon proper application by the student. The court stated that although the administrator had discretion in adjusting the hours of release, the statute was mandatory in that the child had to be released if the application met the statutory requirements. Id., 222 Or at 117-118. See also Hubner v. Hubner, 67 Or 557, 136 P 667 (1913); Real Estate Assn. v. Portland, 23 Or 199, 31 P 482 (1892); McLeod v. Scott, 21 Or 94, 24 P 1061 (1891); Kohn & Co. v. Hinshaw, 17 Or 308, 20 P 629 (1889); Springfield Milling Co. v. Lane Co., 5 Or 265 (1874). We address a similar issue in construing ORS 166.290. ORS 166.290 first appeared as section 8 of chapter 260, Oregon Laws 1925,(fn1) and remained substantially unchanged until 1973. Oregon Laws 1973, chapter 391, section 1 amended ORS 166.290 to delete authorization for other local authorities to issue concealed weapon licenses, changed the fee schedule, and added a provision for non-liability to run in favor of a sheriff issuing a license. Chapter 391 inserted the word "may" in place of "have authority to." The 1973 amendment made no substantive change in the character of the sheriff's duty to issue licenses. In seeking to determine legislative intent, we have previously relied upon the rule of statutory construction that permissive language is construed to be mandatory when it is used to define a public officer's powers and duties "in the performance of which the public or third parties have an interest." 16 Op Atty Gen 565, 566 (1934). On the basis of this rule of statutory construction or for other reasons, courts in Maine and Florida have construed "may" in concealed weapons licensing statutes similar to ORS 166.290 as "shall," in order most reasonably to effectuate legislative intent. In Schwanda v. Bonney, 418 A2d 163, 167 (Me 1980), the court stated:

". . . True, the language . . . is couched in terms of the ordinarily permissive 'may,' but as stated in Collins v. State, 161 Me. 445, 213 A.2d 835 (1965), it is an accepted principle of statutory construction that, when the word 'may' is used in imposing a public duty upon public officials in the doing of something for the sake of the public good, and the public or third persons have an interest in the exercise of the power, then the word 'may' will be read 'shall,' the exercise of the power being deemed imperative by legislative intendment."(fn2)

See also Iley v. Harris, 345 So2d 336 (Fla 1977);(fn3) cf. Salute v. Pitchess, 61 Cal App3d 557, 132 Cal Rptr 345 (1976).(fn4) We also conclude that "may" as used in ORS 166.290 should be understood to mean "shall." We have found no cases that suggest a contrary interpretation. Under ORS 166.290, if a firearm license applicant can show "good moral character" and if "good cause exists," a sheriff must, upon payment of the fee, issue a license to carry a concealed firearm. We note, however, that a sheriff has 353considerable discretion to set "good cause" standards for a particular county, upon due consideration of the objectives of the statute. (See discussion of "good cause" in answer to second question, infra.) II. "Good Moral Character" and "Good Cause" are not Impermissibly Vague Terms(fn5) A. "Good Moral Character" The term "good moral character" most commonly is used in various statutory contexts as a qualification for a person to pursue a particular profession or occupation.(fn6) ORS 166.290 neither defines "good moral character"(fn7) nor specifies how "good moral character" is established.(fn8) Whatever the term means in ORS 166.290, the legislature apparently assumed "good moral character" had enough inherent meaning that one could offer "proof" before the sheriff to establish it. If this phrase were used in legislation directly commanding or forbidding conduct at the risk of penalty, its vagueness could be considered incompatible with due process of law under the Fourteenth Amendment to the United States Constitution. The addressee...