Mr. Justice McKjnstry delivered the following dissenting opinion, in which Mr. Justice Miles concurred: A writ of mandate was allowed by the District Court, commanding the defendants to issue bonds according to the provisions of “An act to provide road funds for the counties [568]of San Luis Obispo and Santa Barbara,” approved March 18, 1874. (Stats. 1873-4, p. 436.)
Section one of the act “empowers and requires” the board of supervisors of each of the counties named in the title to issue bonds to the amount of twenty thousand dollars, bearing interest, and in sums not less than five hundred and not more than one thousand dollars each.
Sections two, three and four relate to the form of the bonds. Section five provides that the board of each county must levy a special tax each year to pay interest on the bonds outstanding; section six requires of them to levy each year after 1874, an additional tax sufficient to pay ten per centum on the whole issue, and section seven provides for the redemption of the bonds.
Section eight directs that the board shall sell the bonds, after notice, to the person bidding the highest price in gold or notes, not less than ninety cents on the dollar. The board is given power, however, “to reject any or all bids,” and is authorized to sell, without notice, for any price, not less than ninety-six cents on the dollar in gold.
The ninth section of the act treats of the disposition of the money derived from the sale of the bonds, and provides: First. That the money received by Santa Barbara County “shall be expended in the manner the supervisors of that county may deem best for the improvement of the main roads and thoroughfares of the county.” Second. Of the money “derived to San Luis Obispo,” that the treasurer thereof shall set apart twelve thousand dollars, which shall be known as the “Cuesta Road Fund,” and shall be expended under direction of the county surveyor “in laying out and constructing a wagon road by the grade known as the Harris grade, over the Cuesta or Sierra of San Margarita, leaving the present public road at or near the farm of Juan Noe, on the south, and coming to the same at or-near the-Cervantes Place on the north side of the mountain.” (This subdivision of the ninth section also provides for the drawing of warrants by the county auditor in favor of the surveyor, in such sums as the latter may require during the progress of the work, and “in order that no delay may oc[569]cur,” commands the county treasurer immediately to transfer one-half of the general road fund to the Cuesta road fund, to be repaid out of the proceeds of the sales of bonds.) Third. That the remainder of the money “derived to San Luis Opispo County, under the provisions of the act, shall be exclusively used and appropriated by the Board of Supervisors of said county, in improving, in such manner as they may deem best, the main road from San Simeon Bay to the Paso de Bobles Hot Springs, and the main road from the town of San Luis Obispo to the Bay of San Luis Obispo.”
I. The act cannot be construed in such manner as to deprive the supervisors of San Luis Obispo of all discretionary power in the matter, as well of issuing and selling the bonds as of disposing of the proceeds, without bringing the statute into conflict with the provision of the Constitution: “The Legislature shall establish a system of county and town governments, which shall be as nearly uniform as practicable throughout the State.”
The laws in operation previous to the passage of the act, gave to the boards of supervisors discretionary power (to be exercised exclusively, but not always within the same limits) over the whole matter of all public roads and highways, which were to be paid for by the people of the respective counties; including the power of determining what roads should be made or repaired, what sums—within the maximum fixed by law—should be raised for highways and roads, and how they should be expended. I am not prepared, nor is it necessary, to say that the Legislature had theretofore established a system in other respects uniform; but the system existing when the act under consideration was passed—however it might otherwise lack uniformity— conferred everywhere discretionary power on the county boards in respect to roads and highways. The existing uniformity would be deranged were the act construed as mandatory and as compelling the Board of Supervisors of San Luis Obispo to borrow a certain sum, and apply it to particular roads.
The words “system of county governments” of them[570]selves imply the generic character of the county organizations which it was intended should be established, but the phrase “ which shall be as nearly uniform as practicable throughout the State,” seems to have been added to remove all possible doubt of the intention that the county governments should be everywhere substantially the same.*
I shall assume, for the purposes of this decision, that all the counties of the State might be compelled to borrow money to build or repair certain roads, or be deprived of choice or option in respect to the levy of taxes for road purposes, and the application of such taxes; that this might bo the substitution of one uniform system for another. But the act of March 18, 1874—if construed as mandatory—is destructive of the uniformity of a system in a particular in which the Legislature has declared it to be practicable to establish uniformity, and has in fact established it.
It may be urged that the section of the Constitution only requires such uniformity as is “practicable,” and whether it is practicable to have the county governments uniform is a political and not a judicial question.
This suggestion has already been answered by the Supreme Court of Wisconsin.
The Constitution of Wisconsin contained a clause like that in our own. In State v. Riorden (24 Wis. 484), the Supreme Court of that State held that a statute providing for a board of eight supervisors in a certain county, which, under the general statutes relative to county governments, would have only three, was in conflict with the constitutional provision. And in State v. Milwaukee (25 Wis. 339), it was decided that a statute appointing commissioners “to superintend, etc., the erection of a court-house in Milwaukee County”—a matter under the general law left with the [571]supervisors—was invalid by reason of the same provision of the Constitution.
In the former case the court said: “The provision not only requires that the system established shall be one system—that is, that all the counties organized shall be invested with the same general powers of local government, delegated to them, and have the supervisor system of government, if that be the one adopted—but likewise that this system shall be as nearly uniform as circumstances will permit. * """ It was further designed to prohibit special legislation. If legislative uniformity in the system, as far as practicable, was enjoined, then the evils which grow out of the present act, and of other similar acts, would be avoided.” It was urged there, as here, that the words “as nearly uniform as practicable,” showed that the provision of the Constitution was “directory,” and not mandatory; one addressed only to the judgment of the Legislature, whose decision as to what is and what is not practicable cannot be subject to review. But the court said: “We do not think this whole matter rests in the discretion of the Legislature. When the Legislature has established a system of county and town government, substantially uniform throughout the State, it may be conceded that its action is final upon the matter. The courts, in such case, would not attempt to review the action of the legislative body, and decide whether it might not have perfected a system more nearly uniform. But when a law, like the one before us, breaks the uniformity of a system already in operation, it seems to us that it is a proper exercise of judicial power to declare that the act is void, because it departs from the rule of uniformity which the Constitution enjoins.” (24 Wis. 490, 491.) And in the latter case (25 Wis. 347) the court said: “That it is not a uniform system to provide that in one county the power to build the county buildings shall be vested in special commissioners selected by the Legislature, while in other counties the same power is vested in boards of supervisors elected by the people, is obvious. It is equally obvious that it is not as uniform as practicable, because it is self-evident, that this power might be vested in the county [572]boards in all the counties. Independent of the act it was so vested in fact. There was, under the existing law, complete uniformity. The same board was clothed with the same general powers of county government in all the counties. A confession that such uniformity was not only practicable, but actually existed, is implied by the very enactment of this act; for its sole object was to change that state of things, and to withdraw from the county board of Milwaukee County a portion of the powers which it previously held in common with all the other boards of the State.”
Like the clause, “All laws of a general nature shall have a uniform operation” (Sec. 11, Art. I), the provision as to the organization of counties and towns was intended to prevent special legislation. The requirement that a uniform system should be adopted, may, perhaps, be considered as simply “directory,” since it demanded affirmative action. But when the Legislature established a system the duty was imposed on the courts, whenever the question properly arose, of declaring null any palpable attempt to set aside the uni-', formity of the system, to the extent that it was uniform. '■ The reasoning of the Supreme Court of Wisconsin ,tih this point is eminently satisfactory, and is applicable■.to-the statute now before us. We are not called on to-say whether a more uniform system could have been ..established than that which was in existence when the act of March 18,1874, was passed. That was a matter for the legislative department. But as the Legislature had decided that a certain uniformity was practicable, and as it appears to us to be practicable, and to have existed when this statute was enacted, we are bound to hold void an attempted exception to that uniformity. Unless we are prepared to say that the supervisors of San Luis Obispo are less competent to determine what roads shall be built, repaired and paid for by the people of their county, than the supervisors of other counties, we cannot assert that uniformity with respect to conferring such powers on the county boards is impracticable.*
[573]It is by no means a necessary consequence of what has been said, however, that this statute shall be held to be wholly void.
The act ‘“empowers” the board to issue the bonds, etc. It may be admitted that the powers of all the boards of supervisors throughout the State need not be restricted within precisely the same limits, or employed in precisely the same mode, because no system purporting to be uniform in all respects has ever been adopted. But the county roads and highways must remain under the control oí the supervisors (at least until another general and equally uniform system has stripped all of them of such control), because the roads and highways within the counties have been placed under their control by a system uniform in that particular. The Board of Supervisors of San Luis Obispo, therefore, it may be assumed, could be empowered, and were empowered, to do all that the act in question purports to authorize.
The word “required,” in the first section, maybe rejected in accordance with the principle that part of a statute may be held unconstitutional, and the rest valid, unless it appear that the Legislature would not have approved the portion which they had power to enact, disconnected from that which is void. Indeed, it may be laid down as a rule, in this class of statutes, that where the word “ shall” is used, it should ordinarily be construed to be the equivalent of “may.” Words imperative should be interpreted as permissive, in order to give all possible effect to the intention of the Legislature.
It may be assumed, therefore, that if the defendants had voluntarily proceeded to issue and negotiate the bonds, they would have constituted valid obligations, binding on the county of San Luis Obispo.
But in this proceeding the court was asked to compel the board to issue the bonds. Surely, we should examine very closely the claim that any court in this State possesses the extraordinary power of compelling the people of a county— by judicial process—to create a debt contrary to their wish and to that of the local authorities, and for an object uni[574]formly placed by the system of county governments within the control of these authorities.
The result of such examination on my part is the conclusion that the hoard cannot, by means of mandamns, be compelled to issue the bonds.
II. If the act shall be construed as commanding the Board of Supervisors of San Luis Obispo County to issue the bonds, the board has also, by the terms of the statute, the power “to reject any and all bids;” that is, to refuse to sell the bonds. It would be a vain judgment to direct that the county should be put to the expense of printing the bonds, if the board cannot be compelled to sell them.
In America the writ of mandamus, although the power to issue it is derived from statutes, so far partakes of the nature of a prerogative writ that the court has the power to issue it or withhold.it, in the exercise of a judicial discretion. (Moses on Mandamus, 18.) When, if issued, it would manifestly be attended with hardship and difficulty, the court may, and even should, refuse it. (Ex parte Fleming, 4 Hill, 581.) As the hoard has the power to refuse to sell the bonds, it would be a hardship on the county, and confer no advantage on the real plaintiff, to order that they be printed and signed.
I think the judgment should be reversed.
The county governments were intended to he uniform. It was argued at the bar that there was no warrant in the Constitution for the suggestion that such governments may be abolished or permanently suspended, or that a county government may be emasculated by depriving its governmental functionaries of all control over the county affairs or over any county matters. It is not necessary, however, to adopt so broad a proposition in this case.
The question above considered has never been passed on in this State, nor is it referred to in any previous decision of this Court.