dissenting.
I respectfully dissent because I believe the majority opinion fashions an equitable result by means of a very strained construction of the clear language of the law.
Both by dictionary definition and legislative enactment the word “shall” means mandatory. KRS 446.010 (29). In the common understanding of most individuals, the word “shall” means must and such a view is supported by the dictionary and the statute. The dilemma forced upon the majority in this matter is very understandable because it is based on a judicial interpretation of the unambiguous word “shall.”
The real root of this problem lies in the capacity that courts have to ignore the plain meaning of a word like “shall.” As an example, Davidson v. Board of Education, 225 Ky. 165, 7 S.W.2d 1056 (1928) states that whether a particular statute is mandatory or directory does not depend on its form, but on the intention of the legislature which is to be ascertained from a consideration of the entire act and the consequences that would result from construing it one way or the other. Davidson, supra, further asserts that where the directions of a statute are given merely for the prompt conduct of business, the provisions may generally be regarded as directory. Davidson appears to be based on the rationale of Jones v. Steele, 210 Ky. 205, 275 S.W. 790 (1925) which holds that a statute which gives directions to accomplish a particular end and the merits are not affected although the directions are not complied with, such statutes are considered directory and not mandatory. It has also been said that a statute is directory if it relates to some immaterial matter or does not reach the substance of the thing to be done, and if by omission, the rights of those interested will not be prejudiced. See Fannin v. Davis, Ky. 385 S.W.2d 321 (1964). The trouble with accepting such a rationale is that it does not follow the law as clearly stated, which is that a Board of Adjustment shall render its decision within 60 days. To interpret the statute in some other way is really to say that the legislature does not mean what it says when it enacts a law containing the word “shall.”
As noted by the Court of Appeals, the General Assembly did not provide for a specific remedy when the decision of the Board is not forthcoming within the time designated. The statute does provide that any person who violates any of the provisions of the law could upon criminal conviction be fined from $10 to $500 for each day *408of violation. KRS 100.991 (1). Here this could mean a fine of from $2,050 to $102,-500. This remedy is not civil but rather criminal. This case is prosecuted as a civil appeal by an applicant for a building permit. Several other states have considered similar problems and concluded that the mandatory provisions of their laws result in the loss of jurisdiction. Pennsylvania in Humble Oil & Refining Co. v. The Borough of East Lansdowne, 424 Pa. 309, 227 A.2d 664 (1967); New York in Anthony v. Liberman, 175 N.Y.S.2d 743, 13 Misc.2d 335 (1958); Massachusetts in Burwick v. Zoning Board of Appeals of Worchester, 1 Mass.App. 739, 306 N.E.2d 455 (1974) and Connecticut in Vartuli v. Sotire, 192 Conn. 353, 472 A.2d 336 (1984).
In my view it is necessary to hold that KRS 100.263 confers jurisdiction on the Board of Adjustment to adjudicate an appeal for a period of sixty days following its evidentiary hearing, and in the event it fails to do so, the Board loses jurisdiction with the result being that the decision appealed from is then final. If this result appears harsh, then the alternative is for the General Assembly to enact additional legislation to redress the problem.
STEPHENS, C.J., concurs in this dissent.