33 Cal. 487 | Cal. | 1867
The first point the defendants make in support of their demurrer to the petition is, that “ the Act upon which the proceeding is based is fatally defective and void.” The Act was approved March -31st, 1866, and it provides that the Viewers therein appointed shall “ survey, locate and establish ” the road between the points specified in the Act, aild “ report their proceedings in the premises to the Boards of Supervisors of the Counties of Solano and Lake on or before the first Monday in March, one thousand eight hundred-and sixty-six.” Reading the provisions of the Act literally, and requiring a strict compliance with its terms, the Act would be void, because an exact compliance is impossible. But from the fact that the Act was passed, and no provision is made limiting its operation upon any contingency, it must be held that it was the intent of the Legislature that the Act should go into operation. The first step in the process, is the location and survey of the route of the road by the Viewers, and as the report of the proceedings could not be returned until after the location and survey had been made, and as it was impossible to make the "return at the time specified in the Act, it must be held that the provision respecting the time when the Viewers were to report their proceedings was directory. The books are teeming with cases in which the Court has come to the aid of the Legislature, and by construing one provision of an Act as mandatory and another as directory, so as to make them harmonize with the principal purpose of the Act, have made its operation possible. Several of those cases are cited in Sedg. Stat. and Const. Law, 368.
When a statute specifies the time at or within which an Act is to be done, it is usually held to be directory, unless time is of the essence .of the thing to be done, or the language of the Act contains negative words or shows that the designation of the time was intended as a limitation of power, authority or right. The exercise of this authority
The second point is that “ the Act is not peremptory in its terms, but leaves the matter of the location of the road to the judgment and discretion of the Supervisors.” The plain reading of section three is directly opposed to this position. It is there provided that it shall be the duty of the Board of Supervisors of the respective counties to meet, etc., “ and upon the receipt of the report of the Viewers appointed in section one of this Act, to declare the road, as located by the Viewers thereof, a public highway.” But section five returns to the report and commits to the Supervisors certain discretionary powers over the report of the Viewers. It provides that “ when the report of the Viewers shall have been received and approved, the said Boards of Supervisors shall declare the road open,” etc. It requires the exercise of judgment, if not discretion, to approve the report. But the point being thus determined does not assist the defendants, for the complaint is, that the Board of Supervisors refuse to act on the report. It is true that it is alleged that they have refused to declare the proposed road a highway, and to declare- it open; but these steps cannot be taken until the report is approved. The mandate can proceed no further than to order them to take action on the report as prescribed by the Act.
The third point is that the Act is null and void, the Legislature having no power to confer extra-territorial jurisdiction upon a Board of Supervisors. It is claimed that the
As to the second branch of the proposition, it is sufficient to observe that there is no clause of the Constitution inhibiting the Legislature from conferring upon the Board of Supervisors of one county, the power to lay out, open and maintain a road in another county. If the Legislature deem it expedient to authorize the Supervisors of Solano and Lake Counties jointly to locate, and require them to maintain a highway in Xapa County, or to make the location of a road in Solano or Lake County dependent upon the approval of the Board of Supervisors of the other county, as is done in
Demurrer overruled.
Mr. Chief Justice Currey did not express an opinion.