People ex rel. Bd. of Supervisors of Solano Cty. v. Bd. of Supervisors of Lake Cty.

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 [493]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.