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.