(dissenting).
If the appellant had been denied the right granted under M. S. A. 177.05 to participate in a public hearing before the commission and “give testimony as to wages, profits, and other pertinent conditions of the occupation or industry,” I could agree with the majority. But the appellant has not been denied the substantive right to appear and give evidence in opposition to the proposed order.
The majority has held that the use of the word “shall” in § 177.08 is indicative of mandatory intent and that the making of rules and regulations is a prerequisite to a valid minimum wage order. I cannot agree with this holding because the requirement relating to the making of rules and regulations was designed for the internal convenience of the commission, related to a procedural matter, and did *486not affect the substantive rights of third persons. In Farmers Co-op. Elev. Co. v. Enge, 122 Minn. 316, 320, 142 N. W. 328, 330, we stated:
“* * * a statute, mandatory in language, may be merely directory, depending upon the object to be subserved by the particular requirement. In cases where the statute does not, in express terms, require the thing to be done, and the act provided for is merely incidental or subsidiary to the chief purpose of the law, and not designed for the protection of third persons, and the statute does not declare the consequences of a failure of compliance, the statute will ordinarily be construed as directory and not fatal to rights granted.”
Applying this test, the fact that § 177.08 does not specify the consequences of a failure to comply and does not require promulgation of the rules is indicative of the directory nature of the provision. In State ex rel. Laurisch v. Pohl, 214 Minn. 221, 223, 8 N. W. (2d) 227, 229, we held there was no hard-and-fast rule for use in distinguishing between mandatory and directory provisions of a statute and that “Consideration must be given to the legislative history, the language of the statute, its subject matter, the importance of its provisions, their relation to the general object intended to be accomplished by the act, and, finally, whether or not there is a public or private right involved.” In Wenger v. Wenger, 200 Minn. 436, 440, 274 N. W. 517, 519, we held that in the construction of the word “shall” and “must” consideration should be given to whether the act provided for is incidental or subsidiary to the chief purpose of the law, whether or not it is designed for the protection of third persons, and if it declares consequences of failure of compliance.
In considering the provisions of § 177.08 with relation to the general object intended to be accomplished by the act, the purpose and function of the advisory board should be examined. The advisory board makes no decisions. Its functions are limited to investigations and recommendations. Its purpose is “to enlighten the commission and protect the public, and private interests as well, against uninformed and unwise action.”5
*487The Industrial Commission is not compelled to give notice that an investigation has been instituted nor is there any reason why the commission should not allow the board to investigate in any manner it pleases. The members of the board serve without compensation and appellant’s counsel admits their investigative activities are limited because of lack of funds.
The Industrial Commission may evaluate the findings and recommendations of the advisory board and is at liberty to adopt or disregard them. Before the issuance of an order by the commission, adverse parties have the right to a public hearing and to submit evidence in opposition to the recommendations of the advisory board. § 177.05. Adverse and interested parties are entitled to submit their respective contentions and supporting evidence to the commission at a public hearing. While the case of Bielke v. American Crystal Sugar Co. 206 Minn. 308, 288 N. W. 584, is distinguishable on the facts, the following statement of law is applicable :
“The procedural portion of a remedial statute, particularly one directing adoption by an administrative board of rules for its operation, cannot, in the absence of expression of legislative intention to that effect, control the substantive portions of the same statute, prescribing the rights and obligations thereby created.
“Ordinarily statutory directions not relating to the essence of the thing to be done, compliance wherewith is a matter of convenience rather than substance, are not mandatory. They are directory only, as distinguished from the substantive provisions relating to the essence, which are mandatory.”
Accordingly, it is my view that the statute with reference to the adoption of the rules and regulations applicable to the advisory board is procedural and not mandatory and is designed for the internal convenience of the commission.
The majority also holds that the validity of the commission’s order is impaired by the fact that one of its board members was not disinterested. This particular board consisted of nine individuals, three of whom represented the employers, three the workers, and three the public. The appellant contended that Miss Burton’s back*488ground and expressed views prevented her from acting impartially as a member of the advisory board. With reference to Miss Burton the trial court made the following finding:
“One of the members of such board named by the Commission was Florence Burton, who was duly qualified for such appointment as a disinterested person. Such board met from time to time and discharged its duties in the manner prescribed by law. Florence Burton attended such meetings and in all things performed her duties as prescribed by law. She was a fair-minded person free from bias and prejudice, impartial, and a person well-grounded in the subject matter of the inquiry before such board. Miss Burton was a former employee of the Commission but had retired before her appointment to such advisory board. While employed by the Commission, she managed the Women’s Division of the State Employment Service, and before 1931 was an investigator of the Women’s and Children’s Division of the Commission. She had been a student of such problems as come before the Commission pertaining to employment of women and minors, which pertained to the duties of her employment. While she was chief of the Division of Women and Children aforesaid, she prepared a report to the Commission in the year 1951. The report was informative and factual and was furnished as an aid to the Commission in the discharge of its duties. It was the result of a study which she had made.”
Miss Burton was one of the three public members and one of six who joined in the majority report. No claim appears to be made that the other public members were not disinterested. The report was adopted after an investigation which continued for a period of 11 weeks.
Since members of the advisory board serve without compensation, the commission is necessarily limited to a choice of people who are informed and intelligent and who will serve from a sense of civic responsibility. The fitness and qualifications of such members are a matter for the commission to determine. In the absence of manifest error or clear abuse of discretion this court should not inquire into the qualifications of members approved by the commission. *4891 Dunnell, Dig. (3 ed.) § 397b. On the record I do not think, the objection to the validity of the order by reason of the alleged interest or partiality of one of its nine members is valid.
For the foregoing reasons I respectfully dissent.
Martin v. Wolfson, 218 Minn. 557, 566, 16. N. W. (2d) 884, 889.