dissenting.
I am unable to agree with the majority’s construction of ORS 462.040 (2), which prohibits the Oregon Racing Commission from issuing, except under certain circumstances, both a horse racing license and a greyhound racing license to the same applicant.
ORS 462.040 (2) reads as follows:
“No licensee shall be granted licenses of both classes nor shall licenses be issued for more than one class of racing on the same race course, track or location. The limitations of this subsection shall not govern, however, if the commission does not receive and approve applications for race meet licenses from other qualified applicants so as to allow utilization of the maximum number of racing days authorized under ORS 462.125.” (Emphasis supplied.)
As I read this provision, under the facts of this case the Commission would have no authority to grant petitioners a license to conduct both horse races and greyhound races, even if petitioners had applied for both.
It is apparent from the record, including the letter dated November 16,1972, from the Commission’s chairman to the secretary of the Multnomah County Fair Board, and the Commission’s letter of November 24, 1972, that the Commission, at least initially, was operating under the assumption that it had the legal *105authority to issue to these petitioners simultaneously two types of licenses — one to conduct horse racing, and one to conduct greyhound racing.
Petitioners argue that this is illegal under OPS 462.040 (2). I agree. For this reason I would reach a different result in this case.
"While the exact meaning and application of OPS 462.040 (2), particularly the italicized language, is far from clear, I construe it to mean this: If any applicant fails to apply for and receive the full number of days it is authorized to apply for under OPS 462.125, then any other qualified applicant may apply for the unused portion of that quota. In this event the Commission may grant the applicant a license to conduct two different types or classes of racing, namely, both horse and greyhound racing. However, in the event that all quotas have been applied for and licenses issued by the Commission thereon, no applicant shall be granted a license to conduct two different types or classes of racing.
Therefore the limitation of only one class of license to one licensee does apply if the Commission receives and approves applications so as to allow the maximum number of racing days authorized under OPS 462.125, which in this case was 130 days for commercial applicants and 20 days for noncommercial applicants. While the findings of fact are incomplete on this point, we glean from the table set forth in the amicus brief that the Commission also granted to Pacific International Livestock Exposition a license for five days’ greyhound racing and five days’ horse racing.
The limitation provision in OPS 462.040 should *106be read in pari materia with the similar proviso in ORS 462.125 (2), which reads:
* * If the commission does not receive and approve license applications for all of the 65 days allocated to either class of racing, the unallocated days may be added to the racing days allocated to and available for the other class of racing.”
The above-quoted subsection by its terms applies only to commercial applicants.
I construe ORS 462.040 (2) as applying only to noncommercial applicants. I can find nothing in the Act or its legislative history to indicate that the legislature ever intended to license commercial horse track operators to also conduct greyhound races, and vice versa.①
Therefore, inasmuch as the Commission at its meeting of November 22, 1972, considered and approved applications for all 65 days allowed for each class, and has also granted 10 days — 5 of each class— to the Pacific International Livestock Exposition, the Commission would have no authority to grant petitioners a license to conduct both horse races and greyhound races, even if petitioners had applied for both.
I agree with the majority opinion that the word “may” in ORS 462.125 (4) cannot be construed to mean “shall,” and that the Commission was not ipso facto required to issue petitioners a license for 10 days’ greyhound racing. While there are situations wherein the courts have held that if necessary to carry out the *107intention, of the legislature it is proper to construe “may” as meaning “shall” (see, for example, Dilger v. School District 24CJ, 222 Or 108, 352 P2d 564 (1960)), I can find nothing in the entire racing law or in its legislative history to indicate a legislative intent that the Commission is compelled to issue to any class of prospective licensees a license to conduct races for the full number of days authorized by law. All indications are directly to the contrary. OES 462.050 (3) expressly provides that the Commission may grant licenses for fewer days than applied for. See also, ORS 462.270 (2) and (3).
Therefore, while the respondent Commission was not required under OES 462.125 (4) to grant petitioners the full 10 days’ racing it had applied for, it could not grant a license for a lesser number of days if, in fact, the true reason underlying such decision was to coerce petitioners into applying for five days’ horse racing also.
Inasmuch as the record does support an inference that the reason the Commission reduced the number of days requested to five was in order to cause petitioners to apply for an equal number of days of horse racing (which OES 462.040 prohibits), I would reverse and remand these proceedings. Pursuant to the authority vested in this court under OES 183.480 (7) (a), the Commission should be instructed to reconsider petitioners’ application, excluding from such further proceedings and deliberations any considerations based on the erroneous assumption that under the facts of this case the Commission has legal authority to issue to these petitioners licenses to conduct both horse racing and greyhound racing.
It is important to point out that in the comprehensive revision of the racing laws enacted by the 1969 legislature (Oregon Laws 1969, ch 356, p 664), ORS 462.125 was enacted as sec 9 of ch 356, p 666, and ORS 462.040 was enacted as sec 12 of ch 356, p 668.