The majority are determining as to section 137 of the Second Class Cities Law that the sentence “ The commissioner shall then proceed to hear, try and *202determine the charge” is advisory, or gives the City Manager the right, in his discretion, to determine whether or not “ to hear, try and determine the charge ”. It is contended that the section must be read in conjunction with sections 131 and 133 of the same law and with rules and regulations then in effect as to the procedure following the filing of a complaint. We are constrained to disagree.
Section 131, aside from outlining the authority of the Commissioner, is of no consequence as to the present problem. Section 133 imposes upon the Commissioner the authority to make reasonable rules, orders and regulations, not inconsistent with law, among them being procedures for the hearing, trial and determination of charges against members of the Police Department and including punishment in the event of a finding of guilt.
Section 137, which follows these procedural sections, is captioned “Discipline” and as pertinent hereto states: “If a charge may be made by any person ’ ’ against a member of the Police Department “ the commissioner shall then proceed to hear, try and determine the charge ”, Thereafter it provides: “ If the accused shall be found guilty of the charge made against him, the commissioner may punish him ”, (Emphasis supplied.)
The use in the statute of the words “shall” and “may” makes it apparent that the Legislature was aware of their contrasting meanings. (Matter of New York Cent. R. R. Co. v. Donnelly, 8 A D 2d 65.)
As to the rules adopted by the Commissioner, it will suffice to note that such rules cannot change or amend the clear reading of the statute nor may the statute be diluted by the exercise of the rule-making power pursuant to said sections 131 and 133.
In statutory construction, consideration is given to the dictionary in seeking to determine the meaning of words. (See McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 234, for a comprehensive and detailed analysis of the words “ may ” and “ shall Black’s Law Dictionary [3d ed.], pp. 1171, 1616.)
A statute of this kind and the words contained therein should be interpreted, if possible, in the meaning and effect allocated thereto by the common speech of men.
The word " shall ’ ’, as used in a statute, is generally imperative or mandatory and this is absolute when a private right or a public interest is dependent on it. Such an interpretation in regard to a statute where the word " shall ’ ’ could have been read as equivalent to the word ‘ ‘ may ’ ’ was made in the early history of this State. In Mayor v. Furze (3 Hill 612, 615) decided 1842, the court stated: “ ‘ Where a statute directs the doing of a thing for the sake of justice, or the public good, the *203word may is the same as the word shall.’ ” (See, also, Hutson v. City of New York, 9 N. Y. 163, 168; Hagadorn v. Raux, 72 N. Y. 583, 586; Matter of Hudson-Harlem Val. Title & Mtge. Co. v. White, 256 App. Div. 393, 395.)
The rule has likewise been recognized by the Federal courts. (See Wilson v. United States, 135 F. 2d 1005, 1009.)
Certain it must be that if such meaning is given to the word “ may ” when a statute employs the word “ shall ”, the intent of the Legislature was to make the act of the Commissioner mandatory under this statute.
Such statutory construction requires a holding that upon the filing of the complaint, in accordance with the directive of the statute, the wording that “ the commissioner shall then proceed to hear, try and determine the charge ” [emphasis supplied] is mandatory and accordingly, the order should be reversed.
We do not pass on the issue as to whether the acts of the petitioner and his attorney were such as to lead the Commissioner to believe that the petitioner intended not to press the charges, nor do we reach the merits of the controversy.
The order should be reversed, on the law and the facts.
Reynolds and Aulisi, JJ., concur with Staley, Jr., J.; Herlihy, J. P., dissents and votes to reverse, in an opinion, in which Taylor, J., concurs.
Order affirmed, without costs.