(dissenting).
I agree with Judge Montgomery in his dissent and I further dissent upon other grounds. First and foremost, I do not agree with this court’s opinion in Russman v. Luckert, Ky., 391 S.W.2d 694. I believe it usurped the legislative powers of Kentucky and injected this court into administrative affairs without justification. Prior to the Russman case the law of this state relative to the assessment of property for taxation was stable and settled. Now it is unsettled causing consternation and strife on every hand. The case presently before us is an outgrowth of the Russman case. Just as the liar, once committed to a false tale, must continue his course in order not to be found out, a court once committed to an unsound policy is compelled to continue or have its error disclosed. We have determined apparently to continue at all costs without regard to the most rudimentary rules of statutory construction.
The Department of Revenue insists that its decision is correct because it is based upon statistics consisting of farm sales in Oldham county in the years 1964 and 65, after excluding certain sales which did not suit its purpose. I am reminded of the statement made by Mark Twain, “There are liars, damn liars and statistics.” Here the Department is using statistics made by itself. If the Department wished to base its conclusion upon previous sales it should be required to use all sales and not be permitted to arbitrarily select those which suit its purpose.
KRS 133.180 provides:
“When the Department of Revenue has completed its action on the assessment of property in any county, it shall, not later than June 20, certify to the county clerk the assessment and the amount of taxes due.”
KRS 446.010 provides:
“As used in the statute laws of this state, unless the context requires otherwise : (23) ‘shall’ is mandatory; * *
*393The Department of Revenue certified the increased assessment of Oldham county on July 24, 1966. Clearly, this was not in time. The majority opinion in holding the foregoing statutes to be directory and not mandatory is wrong. I believe most reasonable and informed people agree that a state legislative body has the power to require that an act be done or committed by a certain day. If it has this power, then what language must it use ? Since this court is saying that “shall” is not a mandatory word, even though the statutes say otherwise, in my humble opinion the court should be considerate with the legislature and tell them what would be a mandatory word. It is conceivable that at some future date the legislature may want to require an act to be done or performed in a prescribed manner at a specific time without delay or excuse. If this should happen, what language should it use ? Have we in effect, by this decision, rendered the legislature powerless to enact mandatory legislation ?_
KRS 446.010(23) plainly and clearly states that “shall” as used in these statutes is mandatory. As late as 1960 in Clinton County Farm Bureau v. Clinton County Fiscal Court, Ky., 339 S.W.2d 930, we held that “shall” was a mandatory word. In fact, the word “shall” has been interpreted by this court in some fourteen different cases as mandatory.
Angel v. Byars, (1913), 153 Ky. 208, 213, 154 S.W. 1109; Clinton County Farm Bureau v. Clinton County Fiscal Court, supra; Woods v. Commonwealth, Ky., 305 S.W.2d 935; Stanfield v. Willoughby, (1956), Ky., 286 S.W.2d 908, 53 A.L.R.2d 925; Clark v. Riehl, (1950), 313 Ky. 142, 230 S.W.2d 626; Stevens v. Coleman, (1949), 311 Ky. 313, 224 S.W.2d 149; Ward v. Hurst, (1945), 300 Ky. 464, 189 S.W.2d 594; Hart v. Central City, (1942), 289 Ky. 431, 159 S.W.2d 18; Skaggs v. Fyffe (1936), 266 Ky. 337, 98 S.W.2d 884; Horning v. Fiscal Court of Caldwell County (1920), 187 Ky. 87, 218 S.W 989; Middleton’s Heirs v. Middleton’s Devisees (1897), Ky., 43 S.W. 677; Maysville & Lexington R.R. Company v. Herrick, 76 Ky. 122, 13 Bush 122; Anderson v. Brady, D.C., 1 F.R.D. 589, and the Supreme Court case Anderson v. Yungkau, 329 U.S. 482, 67 S.Ct. 428, 91 L.Ed. 436.
80 C.J.S. p. 137 defines “shall” as follows:
“In its ordinary signification, ‘shall’ is a word of command, and is the language of command, and is the ordinary, usual, and natural word used in connection with a mandate. In this sense ‘shall’ is inconsistent with, and excludes, the idea of discretion, and operates to impose a duty which may be enforced, particularly if public policy is in favor of this meaning, or when addressed to public officials, or where a public interest is involved, or where the public or persons have rights which ought to be exercised or enforced, unless an intent to the contrary appears; but the context ought to be very strongly persuasive before it is softened into a mere permission.”
It is bad enough that we usurp the legislative powers to provide for the assessment and taxation of property. It is worse when we attempt to justify it by completely misconstruing and ignoring the plain mandate of the statutory law. It would be interesting to observe the results should this court some day construe the ten commandments with all the “thy shall” and “thy shall nots” contained therein.
For the foregoing reasons, I respectfully dissent.