THE PEOPLE ex rel. THE BOARD OF SUPERVISORS OF SOLANO COUNTY v. THE BOARD OF SUPERVISORS OF LAKE COUNTY, 33 Cal. 487

By the Court, Rhodes, J.: 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 by the Courts has often, and sometimes not inaptly, been denominated judicial legislation, but its exercise has been too long continued and frequent to permit the authority to be now denied.

It may safely be said that the Legislature of this State contemplated the exercise of this authority with a very liberal hand, if wé may judge from the large mass of private, local and special statutes with which the legislation of this State for the last ten years has been cumbered—some of them containing provisions not only in conflict with the general laws, but incongruous among themselves, and sometimes in derogation of matters of common right.

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 clause of

section four,

Article XI, of the Constitution—“ the Legislature shall provide a system of county * * * governments , which shall be, as nearly as practicable, uniform throughout the State ”—when read in connection with that clause of

section five of the same Article, providing that the Supervisors shall “ perform such duties as may be prescribed by law,” clearly indicates that it was intended that their jurisdiction should be limited to their respective counties. We have no hesitation in saying that policy forbids the attempt on the part of the judiciary, at this late day, to determine how far it is practicable to maintain uniformity in the system of county governments.

They are now so diverse, in most respects except the names of the bodies invested with governmental functions, that scarcely any two counties have governments similar in all particulars. The number constituting the different Boards, their terms of office, and more than all, their powers, and the mode prescribed for their exercise, are materially variant.

And this state of things having been acquiesced in for so long a time, and rights of property of great magnitude having been acquired under this system, and being now dependent upon its legality, the authority to determine the question must be left where it has always been exercised—with the Legislature. In other words, the practical construction given to the clause is, that it is directory.

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 this case, we see no constitutional objection to the enactment. Demurrer overruled. Mr. Chief Justice Currey did not express an opinion.