Shall

must,' cf. Merced Rosa v. Herrero, 423 F.2d 591 , 593 n. 2 (CA1, 1970), yet the judge who called for the three-judge court here was not named to the panel.

British Cases. Great care is to be employed in using or construing this word. Its various meanings range under two general classes according as it is used, as implying futurity; or as implying a mandate, or giving permission or direction. Futurity. If something Is agreed to be done if or when something else "shall" happen, this contemplates futurity. Past occurrences will not satisfy the condition precedent. 3 Drew. 617; 25 L. J. Ch. 850; 27 L. T. O. S. 289; 29 L. J. Ch. 911; 7 W. E. 135; 5 Jur. N. S. 56. "Shall be born," in the absence of a context, are words of futurity; and, in a will, mean persons born after its date. 50

The various meanings of this word range under two general classes according as it is used as implying futurity or implying a mandate; the words shall be born in a will in the absence of a context are words of futurity; 6 App. Cas. 471; and where a statute declares a thing shall be done, it is a peremptory mandate; Stroud, L. Diet., which see for a classification of cases in which the word has been held to be used in a directory, and others in which it is used in a peremptory, sense. It is held that it is to be construed as may, unless a contrary intention is shown; Cairo & Fulton R. Co. v. Ilecht, 95 U. S. 170, 24 L. Ed. 423.

May be construed sense.

Whether the word shaU im- X ports futurity, depends upon the subjectmatter and the context. Hannibal, &c. B. B. Co. V. State Board of Equalization, 64 Mo. 294, 304. A statute declaring that, when any persons " shall have " actually settled on military bounty lands, &c., they shall be entitled to be paid for their improvements, was held retrospective only, in Jackson v. Chapman, 3 Cow. 390. A statute that an appeal "shall be allowed," means "must be allowed," when asked by one who stands in such relation to the cause that he is entitled to appeal, irrespective of whether he will gain any thing by appealing. Exp. Jordan, 94 U. S. 248. A statute provided as follows: " The commissioners shall return the assessment roll within forty days." Held, that as no public or private right required the word shall to be construed in an imperative sense, it was to be taken as dhectory merely. Wheeler v. Chicago, 24 111. 105. A statute prescribing that courts shall relieve a party from a judgment taken against him, through his mistake, inadvertence, surprise, or excusable neglect, on shall excludes the idea of any mere discretionary power in the court in granting or refusing the application, and confers on the party the right to demand the relief. Smith V. Noe, 30 Ind. 117. A statute as to a county charge, which provides that the supervisors shall audit and allow it as it becomes due, is imperative. Morris v. People, 3 Den. 381. Shall be given. Where an act of congress enacts that certain lands shall he given to, &c., the words " shall be given " are words of absolute donation, and convey' a present right. Rutherford v. Greene, 2 Wheat. 196. Shall be la-wful. These words, when found in the by-law of a corporation, are not to be construed as obligatory. Therefore, where a by-law of a corporation ordained that, under certain circumstances, " it shall and may be lawful " for the bailiffs to admit to the freedom of the town certain persons, it was held that this by-law was only optional, and that the admission of such persons to the freedom of the borough could not be enforced by mandamus. Eex V. Bailiffs of Eye; 1 Barn. ^ C. 85; 2 Dmot. %■ E. 172. Shall go. The words " shall go," in a statute defining the rights of husband and wife to property held in common, in case of the death of either, were held to mean " shall vest." Broad v. Broad, 40 Cal. 493. Shall not. The words " shall not " were held to mean " cannot," in Parker v. United States, 2 Wash. 361.