People ex rel. Ferguson v. Board of Supervisors of San Francisco

By the Court, Crockett, J. : This is an application for a mandamus to compel the Board of Supervisors of the City and County of San Francisco to proceed with the work of altering the grade of Second street, between Howard and Bryant streets, in said city, in pursuance of the provisions of the Act of the Legislature of March 30th, 1868. (Stats. 1867-8, p. 594.) There is but one question of any practical importance involved in the case, to wit: whether the Act of the Legislature is simply an enabling Act, authorizing the Board of Supervisors to perform the contemplated work, if it shall see fit to do it, but leaving the Board the right to exercise its discretion in the premises; or whether the Act is mandatory in its terms, leaving in the Board no power to decline to proceed with the work. • The title of the Act is “An Act to authorize the Board of Supervisors of the City and County of San Francisco to modifjr the grades of certain streets;” and the first section provides that “the Board are hereby authorized to modify the grade of Second street, between Howard and Bryant streets, in such manner that the crossing of Folsom and Second streets shall be forty-two feet above the base lines of the city grades, and that the crossing of Harrison and Second streets shall be fifty feet above the said base line,” etc. It will be observed that both in the title and the first section the term “authorized,” is employed, which imports only that the Board may or may not, at its discretion, cause the work to be done. But in construing statutes, the universal rule is that all parts of the statute must be considered, in order to ascertain from the whole what was the real intent of the Legislature; and the sole province of the Court is to give effect to that intent when thus ascertained. The argument for the respondents is: First—That it would be a most extraordinary proceeding for the Legislature to undertake, by a mandatory Act, to compel a local improvement of- this character to be made, whether those interested — 601 — desired it or not; and that such a construction ought not to be given to the Act, unless its terms imperatively require it. Second—That the title and the first section of the Act render it apparent that the Board was only authorized, but not commanded, to cause the work to be performed. Third—That by the second section of the Act, it is provided that at the crossing of Harrison street over the lines of Second street, there shall be a wooden bridge, with the stairways leading down to Second street, and that the bridge and stairways “ shall be built and constructed as shall be provided by said Board of Supervisors;” and it is insisted that inasmuch as the bridge and stairways are necessary parts of the work, in respect to the particular method of constructing which the Board is to exercise its discretion, and about the details of which a majority of the Board may possibly never agree, it results that the Board cannot be compelled to undertake the work at all. On the first proposition, we have only to say that it is not our province to discuss the expediency or wisdom of a legislative Act. Our sole duty is, by applying just rules of construction to ascertain the true intent of the Legislature, and carry it into effect. If the Act is unwise or oppressive in its provisions, the fault is with the Legislature, and we have no power to remedy the grievance. But legislation of this character is not so entirely without a precedent in this State as to justify the rigid rule of construction invoked by the counsel. In numerous instances the Legislature has commanded municipal bodies to perform acts of a purely local nature, and affecting only the interests of small portions of the community. Indeed, municipal corporations are but the creatures of the Legislature, and intended to aid the legislative branch of the Government in the administration of local affairs. It may not be wise or politic in the Legislature to do directly what, perhaps, might be better done through the instrumentality of municipal corporations. But this is — 602 — an argument to be addressed to the Legislature, and not to the Courts. The next proposition is, that from the title and first section of the Act it is evident the intention was to leave it discretionary with the Board whether to cause the work to be performed or not. If the solution of the question under discussion depended solely on the title and first section of the Act, we should hold, without hesitation, that the Act is not mandatory, and that the Board might proceed with the work or not, at its discretion. But though the title of an Act, in cases of great doubt, may be referred to as tending to elucidate the intent of the Legislature, it is never permitted to control the body of the Act. In People v. Abbott, 16 Cal. 365, the rule is thus stated: “Where the meaning of the body of the Act is doubtful, the title may be relied on as an assistance in arriving at a conclusion. Of course, it cannot be used for the purpose of restraining or controlling'any positive provision of the Act; but in cases of doubt, is frequently resorted to as a means of ascertaining the intention of the Legislature.” “Taken,” says Sedgwick, “in connection with other parts of the statute, it may, where the intent is not plain, assist in removing ambiguities.” But if the first section stood alone, and without the aid of the title, it would be sufficient to show that the Act was not intended to be mandatory, unless there was something in other portions of the Act to overcome this presumption and to establish a contrary intent. In our opinion, other provisions of the Act are wholly inconsistent with the hypothesis that the Board was to exercise any discretion whatever in the premises, except a very limited discretion as to the particular method to be employed in the construction of the bridge and stairways. The Act prescribes with great minuteness the exact elevation of the new grades at the crossings; the general character of the bridge and stairways; the precise district to be benefited by the improvement; and provides how bids for the work are to be made and accepted; how the contract is to be entered into; how the damages and — 603 — benefits are to be assessed and collected, and the former paid. In fact, it leaves nothing of any practical importance for the Board to do, except to carry into execution the provisions of the Act. If it had been intended to leave it optional with the Board whether or not the work should be performed, it is not in the least degree probable that they would have been denied the power to exercise any discretion whatever in respect to the principal details of the improvement. To hold that the Board was authorized to decline to make the improvement, if it elected so to do, but if it decided to proceed with it, then that the grades must be of a particular elevation, the bridge of specified dimensions, resting on abutments “of uniform height with Harrison street,” the stairs of a particular width, the contract for the work to be entered into in a particular manner, (the district to be benefited being specified in the Act itself,) would be to impute to the Legislature an inconsistency of conduct nearly akin to an absurdity. It is scarcely credible that the Legislature would deny to the Board the right to exercise any discretion whatever as to these details, and yet confer on it the power to defeat the improvement altogether. The fact that the most minute details of the work are specified, ex industria, tends strongly to prove that the Board was to exercise little or no discretion in respect to the manner of doing the work, and much less can we infer that it was intended to confer on them the power to defeat it entirely. But if the other provisions of the Act left a doubt on this point, it would be removed by section five, which provides that “it shall be the duty of the Board of Supervisors, within thirty days after the passage of this Act, to cause notice of the proposed work to be conspicuously posted in the office of the Superintendent of Public Streets, and also published in the official paper for five days, inviting sealed proposals for the work of grading as designated in section one of this Act.” It then directs how the proposals are to be made and opened, and requires the work to be awarded to the lowest responsible bidder, and that within three days after the award the Super — 604 — intenclent of Public Streets shall enter into a contract for the work with the successful bidder. This section is plainly mandatory. It leaves no room for the exercise of any discretion by the Board; and negatives emphatically the idea that it was at liberty to-decline to cause the improvement to be made. The last proposition of the counsel is, that because the Board is allowed to exercise a very limited discretion in respect to the details to be observed in the construction of the bridge and stairs, the inference is that it might exercise a similar discretion in respect to undertaking the work at all. The argument is ingenious, but not sound. The bridge and stairs are but incidents to the main work; and though necessary to render the improvement complete, the possible failure of the Board hereafter to do its duty in that respect affords no valid reason why it should decline to commence the work. It cannot be assumed in advance that a majority of the Board will be unable to agree upon such details as are necessary in respect to the bridge and stairs, and if, when the time for action arrives, it should find itself in that unfortunate predicament, the only result would be that this portion of the work would remain unfinished until a less impracticable Board was chosen, or until the Legislature should provide a remedy. But we are unable to perceive on what ground the fact that the Board is clothed with a limited discretion as to the mere details of a small portion of the work can be justly held to establish or tend to prove the proposition that it may, for that reason, decline to proceed with any part of the work. We are unable to distinguish the principles involved in this case from those settled in Napa Valley Railroad Company v. The Board of Supervisors of Napa County, 30 Cal. 436, and The People v. The Board of Supervisors of Lake County, 33 Cal. 487. (See, also, The People v. Board of Supervisors of San Joaquin County, 28 Cal. 229; French v. Teschemacher, 24 Cal. 518; People v. Coon et al., 25 Cal. 641; People v. Board — 605 — of Supervisors, etc., 21 Cal. 668; People v. Common Council of Brooklyn, 22 Barb. 412.) The only point remaining to be considered is whether the application for the writ is properly made in the name of the People, or should have been made in the name of the relator, or some one else directly interested in the proposed improvement. In the notice for this application, and in the affidavit of the relator, on which the application is in part founded, the title of the cause is given as “ The People of the State of California, upon the relation of John Ferguson v. The Board of Supervisors of the City and County of San Francisco.” But it is not specified in the notice that the application will be made for or on behalf of the People, but only that an application will be made “ for a peremptory writ of mandate to and upon your honorable body, directing and requiring you to do and perform the various acts and duties enjoined upon your honorable body,” in the “Act of the Legislature of the State, entitled,” etc., giving the title and date of the Act. It also specifies that the application will be made on the annexed affidavit of the relator, on the said Act, and the minutes of the Board. The notice is signed only by counsel for the relator, and not by the Attorney General. The affidavit of the relator shows that he is the owner of real estate within the limits to be benefited by the improvement, and is beneficially interested therein. Though the Attorney General did not sign the notice, he unites in the brief in support of the application, and thereby, impliedly at least, consents to the use of the name of the People. The counsel for respondents relies on the case of The People v. Pacheco, 29 Cal. 213, as establishing the proposition for which he contends. But in that case it affirmatively appeared not only that the People had no interest in the contest, but that the relator had no authority from the Attorney General to use the name of the People; whereas in this case the Attorney General must be held as assenting to the use of the name of the People, and it is apparent from the very nature of the case that a large number of persons are interested in the — 606 — result of the application. We are not inclined to extend the principles adjudicated in People v. Pacheco, on this point, beyond the facts of that case. Our conclusion is that a peremptory writ of mandate should issue, as prayed for, and it is so ordered.