Fritz, Ard and Pressler. The opinion of the court was delivered by Ard, J.A.D.
[148 NJSuper Page 28] The Commissioner of Institutions and Agencies, the State Prison Keeper and the State Treasurer appeal a Law Division order which mandated that the State Prison Keeper make timely acceptance of Essex County prisoners duly sentenced to State Prison within the time frame specified by N.J.S.A. 2A:164-18 and N.J.S.A. 30:4-6. The order also severed from this action a claim for money damages which is not part of this appeal.
The facts are not in dispute. It is the position of respondents that the sheriff is required by statute to deliver prisoners to the State Prison facility no later than 20 days following sentencing. Moreover, respondents contend that the Keeper of Trenton State Prison is required by statute to receive such prisoners into the state facility. As a result of a new policy instituted by appellants in December 1975, the State Prison refused to accept prisoners when delivered by Essex County authorities and insisted on Essex County conforming to a state schedule which required the county to maintain prisoners sentenced to State Prison on an average of 24 to 25 days after sentencing.*fn1 The State justified its new policy because of undisputed overcrowding in the State Prison. Due to this overcrowding, the policy was formulated whereby prisoners were taken from the various counties on a rotating alphabetical basis. Thus, the prisoners would first be taken from Atlantic County, then Bergen County and so on. Certain preferences were given to the larger counties which had overcrowding problems. Prisoners were accepted from these larger counties, including Essex, on a more frequent basis. In resisting this procedure Essex County delivered prisoners to the Trenton State Prison pursuant to N.J.S.A. 2A:164-18 and N.J.S.A. 30:4-6. The institution, claiming overcrowded conditions, refused to accept any prisoner delivered contrary to its new administrative policy of accepting prisoners on a rotating alphabetical basis, thereby requiring the county to maintain the prisoners at county expense until accepted by the state institution. The trial judge, while sympathizing with the state institution's position, ruled that the aforementioned statutes compelled the State Prison Keeper to accept prisoners from Essex County.
The question raised on this appeal is whether these statutes are mandatory or directory.
N.J.S.A. 2A:164-18 deals with the sheriff's obligation in delivering prisoners and provides:
In all cases where the defendant, upon conviction, is sentenced by the court to hard labor and imprisonment for a term in the state prison, the clerk of the court in which the conviction was had shall, within 5 days after the sentence is pronounced, furnish to the sheriff of the county a certified copy of the taxed bill of costs in the case, and the sheriff or his lawful deputy shall, within 15 days after receiving such certified copy, transport to the state prison and there deliver into the custody of the keeper of the prison the person so sentenced , together with all other persons so sentenced within the same period, together with a copy of the sentence of the court ordering such imprisonment and of the taxed bill of costs of prosecution against the defendant, certified under the hand and seal of the clerk of the court where the conviction was had. The person so delivered to the keeper of the state prison shall be safely kept therein until the time of his confinement shall have expired and the fine or fines and cost of prosecution be paid or remitted, or until he shall be otherwise discharged according to law.
In every case at least 48 hours, exclusive of Sundays and legal holidays, shall elapse between the time of sentence and removal to the state prison. [Emphasis supplied]
Complementing the aforementioned statute, N.J.S.A. 30:4-6 deals with the responsibility of the State Prison with respect to receiving prisoners and provides:
The principal keeper of the State prison and the chief executive officer of each of the other correctional institutions shall receive from the hands of the sheriff or other proper officer every person sentenced to imprisonment in his institution and safely keep him therein according to law and the rules and regulations of the institution until lawfully discharged therefrom. * * * [Emphasis supplied].
In both instances the quoted sections of the statutes use the word "shall." As a matter of statutory construction, there is a presumption that "shall" appearing in a statute is used in the mandatory or imperative sense and not in a directory sense. "May," on the other hand, is permissive and directory. Concededly, the meaning of these terms can be interchangeable when the context of their use warrants such an interpretation. A concise analysis of this question of
statutory construction appears in Harvey v. Essex Cty. Bd. of Freeholders ...