Weed v. Maynard

argued that by the Act of 1876 the Legislature did not take away from the Board of Supervisors the power which it before possessed of cleaning the streets in such mode and manner as it desired. J. M. Cog!dan, also for the Appellants. The rule of construction to be applied would seem to be that the statute should be construed so as to carry into effect the true intent and meaning of the Legislature; and that the word may in a statute should be construed must only in those cases where the Legislature intended to impose a positive duty, and not in those in which it intended to give a mere discretionary power. (Powers v. Sonoma Co. 32 Cal. 66; Miner v. Mechanics' Panic, etc., 1 Peters, 64; The Newberg Turnpike Co. v. Miller, 5 J. C. K. 112; Malcom v. Rogers, 5 Cowen, 108.) W. C. Burnett, for the Despondent. Delos Lake, also for the Despondent. By the Coubt: The reargument has satisfied us that the Act of April 3rd, 1876, was intended simply to confer on the Board of Supervisors of the City and County of San Francisco the power to inaugurate the system therein provided for, at their option, and not to deprive them of any powers with respect to street or sewer cleaning, which they already possessed. None of the provisions of the Consolidation Act relating to the subject are expressly repealed. The first section of the Act [462] of April 3rd, 1876, commences: “The Board of Supervisors are hereby authorized and empowered to have the streets of said city and county kept clean in the following manner.” The sixth section invests the Board with “ full power and authority to cause the persons sentenced or committed to the House of Correction to be employed in cleaning the streets,” etc. Upon no principle of construction can the language of the first section of the act quoted above be held to be mandatory, and as mating it the absolute duty of the Board to adopt the system which they are authorized to inaugurate; and it has not been pretended by counsel that the sixth section could have any other effect than to give power to the Board, at their option, to make use of the convict labor—a power which, up to the last session of the Legislature, the Board did not possess. If it could be said that there were words in other parts of the statute which were suggestive of an intention to make the law mandatory, such words could have the effect, at most, only to make the legislative meaning to some extent ambiguous, and this would authorize a judicial reference to the title of the act, which is “ An Act to confer additional powers on the Board of Supervisors,” etc. But in truth there can hardly be any ambiguity in the body of the statute. The evident purpose is to give the Board the discretion to resort to a special system, the principal and novel element of which is the employment of prison labor; and if in the description of the plan the word “ shall ” is used in defining the duties of the Board, it is clearly to be understood as declaring the affirmative duty of the Board in the particulars with reference to which the word is used, provided, or in case that the system should be adopted. Judgment reversed and cause remanded, with directions to enter judgment in accordance with the prayer of the petition. ¡Remittitur forthwith.