(concurring with comments):
I concur with the main opinion. However, in my view there is a somewhat different rationale, grounded on fundamental principles, which supports its conclusion, and which I think is of sufficient significance and applicability to justify stating separately.
The first of those principles is that due to the respect that should be accorded the concept of the separation of powers in our system of government, the judiciary should exercise great restraint in intruding into the legislative prerogative. Consistent with that policy, there is indulged a strong presumption in favor of constitutionality, which is overcome only when it is abundantly clear that the legislative enactment is in contravention of some constitutional provision.1
In regard to the authority of the legislature relating to the enactments in question, it is further important to bear in mind that the legislature is constitutionally vested with the power to make the laws for this sovereign state; and thus has inherently the power to enact all laws essential to the carrying on of the purposes of government, except only as expressly prohibited or limited by constitutional provisions.2
With the above-stated general propositions in mind, attention is focused upon the challenge to the validity of the several legislative enactments which authorize the defendant state agencies to employ adequate staffs, including attorneys, to carry out their legally imposed responsibilities.
In support of his challenge, plaintiff cites and relies on § 16, Art. VII of our Constitution, which provides that:
The Attorney General shall be the legal advisor of state officers, and shall perform such other duties as may be provided by law.
He places emphasis on the word “shall”; argues that it is mandatory; and that therefore the just-quoted provision gives him the sole and exclusive right and duty to act as attorney for defendant entities and *1342prohibits the legislature from authorizing them to employ their own attorneys.
In analyzing that contention, it is pertinent to observe that the term “shall” is a flexible one. This is clearly revealed by reference to that comprehensive lexicon of the law, Words and Phrases. It contains several pages of case references to the word “shall,” a perusal of which indicates that it is sometimes used in the mandatory sense and sometimes merely as directory or permissive, leading to the conclusion that its meaning is to be determined from the context in which it is used and the purpose sought to be accomplished.3
Typical of numerous cases therein listed as supporting that view are In re Norrell's Estate, 139 N.J.Eq. 550, 52 A.2d 407, 410 (1946), wherein the court states that the word “shall” in a statute is to be construed as merely permissive when no public benefit or private right requires it to be given an imperative meaning. Our own Court has recognized the same proposition. In the case of Bird and Jex Co. v. Funk, 96 Utah 450, 85 P.2d 831 (1939), it was held that “shall” as used in a statute relating to the authority of our Liquor Control Commission to regulate advertising is merely permissive and not mandatory.
Applicable to the question as to which meaning is to be given the word “shall” in the provision under scrutiny is the rule of statutory construction: that where there is a choice as to the interpretation and application of a statute, it should be so construed and applied as to make it constitutional, in preference to one which would make it invalid.4 This same principle of harmonious reconciliation in favor of validity has reciprocal effect in considering constitutional provisions in relation to legislative enactments. It is submitted that if the rules hereinabove stated are applied to the problem presented by plaintiffs contention it will be seen that an entirely reasonable understanding of the provision of § 16, of Art. VII is that the Attorney General is simply authorized and given the responsibility of being legal advisor to state officers; and more specifically, of controlling importance on the problem here: there is nothing in its language which expressly states or necessarily implies any prohibition upon the inherent powers of the legislature to provide for the adequate staffing of state institutions, including attorneys, where that is essential to the carrying out of responsibilities imposed upon them.
On the grounds stated in the main opinion, and the additional grounds stated herein, I join in affirming the rulings of the district courts: that the legislature did not transgress its constitutional prerogative in the enactments under attack herein.
OAKS and DURHAM, JJ., do not participate herein.. Lehi City v. Meiling, City Recorder, 87 Utah 237, 48 P.2d 530 (1935); Newcomb v. Ogden City Public School Teachers Retirement Commission, et al, 121 Utah 503, 243 P.2d 941 (1952).
. See statement in Wood v. Budge, 13 Utah 2d 359, 374 P.2d 516 (1962) and see Kimball v. Grantsville City, 19 U. 368, 57 P. 1, 45 L.R.A. 628 (1899); said in awareness of possible limitations in Enabling Act, not applicable here, see Jensen v. Dinehart, Utah, 645 P.2d 32 (1982).
. To the same effect, see 80 C.J.S. p. 138 and cases there cited.
. Wagner v. Salt Lake City, 29 Utah 2d 42, 504 P.2d 1007, 1012 (1972); Norville v. State Tax Commission, 98 Utah 170, 97 P.2d 937 (1940); Treffry v. Taylor, et at, 67 Wash.2d 487, 408 P.2d 269 (1965).