dissenting.
I dissent from the majority opinion.
The majority relies on its decisions in Associated Press v. Board of Public Education (1991), 246 Mont. 386, 804 P.2d 376, and Bozeman Daily Chronicle v. City of Bozeman Police Department (1993), 260 Mont. 218, 859 P.2d 435, for the proposition that an award of attorney fees pursuant to § 2-3-221, MCA, is discretionary. However, the precise issue presented by this case was not before this Court in either of the cases relied upon. In both cases, attorney fees were awarded and the public entity argued on appeal that they should not have been awarded because it had acted in good faith. However, this Court affirmed the award of attorney fees for the reason that the cost of litigation which is beneficial to the public should be spread among all of its beneficiaries. Attorney fees were referred to as discretionary. *384However, there was no analysis of the language used in the statute, nor any discussion of why an award of attorney fees pursuant to the statute was permissive, rather than mandatory.
The majority concludes that when construing a statute we must apply terms and words as they are ordinarily understood, and that “may” is commonly understood to be permissive or discretionary. However, we have a long history of cases in this State where the term “may” has been construed to provide a mandatory directive to the court or public official vested with authority to act. See, e.g., Bascom v. Carpenter (1952), 126 Mont. 129, 136, 246 P.2d 223, 226, where we pointed out that:
In Simpson v. Winegar, 122 Or. 297, 258 P. 562, 563, the court said: “It is well settled that, where even the word ‘may’ is used, and the rights of the public or of a third party are affected, the language is mandatory, and must be strictly obeyed. In Kohn v. Hinshaw, 17 Or. 308, 311, 20 P. 629, 631, Mr. Justice Strahan said: ‘... It is a general principle in statutory construction that, where the word “may” is used in conferring power upon an officer, court, or tribunal, and the public or a third person has an interest in the exercise of the power, then the exercise of the power becomes imperative.”’ [Emphasis added].
We have construed the term “may” when used in statutes to be imperative or mandatory and the equivalent of “shall” or “must” as long ago as 1901 in our decision in Montana Ore Purchasing Company v. Lindsay (1901), 25 Mont. 24, 27, 63 P. 715, 716. We have consistently so held, wherever appropriate, in subsequent cases. See State ex rel. Stiefel v. District Court (1908), 37 Mont. 298, 96 P. 337; State ex rel. Case v. Bolles (1925), 74 Mont. 54, 238 P. 586; Thomas v. Cloyd (1940), 110 Mont. 343, 100 P.2d 938; Hanson v. City of Havre (1941), 112 Mont. 207, 114 P.2d 1053.
Sure, these cases involve different facts and different statutes. If they did not, we would not need to decide this case. However, the majority has ignored prior decisions of this Court where statutes which provided that a trial court “may” award attorney fees to a prevailing party were interpreted to require that attorney fees be awarded without any discretion on the part of the trial court. See Walker v. H. F. Johnson, Inc. (1978), 180 Mont. 405, 591 P.2d 181; Catteyson v. Glacier General Assurance Co. (1979), 183 Mont. 284, 599 P.2d 341.
It is also true that legislative intent is one factor to consider when interpreting the statute. However, legislative purpose must also be *385considered. For example, in Montana Ore Purchasing Company, 63 P. at 716, we also held that:
[T]he word is interpreted to mean “shall” or “must” whenever the rights of the public or of third persons depend upon the exercise of the power or performance of the duty to which it refers.
In this case, and in all cases where a citizen of Montana petitions for the disclosure of public records pursuant to his or her right granted in Article II, Section 9, of the Montana Constitution, and where a district court or this Court concludes that the right to information has been withheld, that person has performed a service for the State, and all other citizens in the State, by enforcing a part of our Constitution which would otherwise be violated. The degree of good faith with which the Constitution is violated is irrelevant.
The expense of this service, which is of benefit to everyone because our Constitution is reinforced and strengthened, should not and cannot be born solely by that individual who takes the initiative to compel a public official to perform his or her duty. There may be little economic incentive to do so, yet the public’s right to know is priceless.
In this case, for example, the filing fees to a successful party are $135, and other costs and attorney fees approached $1000. When those kind of costs are necessarily incurred to enforce a constitutional right, how can it be argued that the rights of the public do not depend upon the district court’s exercise of its power to reimburse the person who, at his or her own expense, has breathed life into the Constitution?
For these reasons, I would reverse the order of the District Court and hold that the language in § 2-3-221, MCA, which authorizes an award of attorney fees, is directive or mandatory and not discretionary or permissive.
I do, however, concur with the majority that if the District Court had discretion to deny attorney fees, that discretion was abused in this case. The thrust of its rationale for denying attorney fees is that they are inappropriate where documents are requested under the Criminal Justice Information Act. That issue was resolved to the contrary in the Bozeman Chronicle case. If the District Court had any other basis for exercising its discretion by denying an award of attorney fees in this case, that basis is not set forth in its order, and I find none from my review of the record.