McGuire

Petition for writ of mandate. San Buenaventura is a city of the fifth class, the government of which, by the general municipal incorporation act of 1883, is vested in a board of five trustees. By a vote of three of the trustees, being the petitioners herein, an ordinance, in the exercise of the police power, was passed imposing a penalty. The president of the board and one other member thereof voted against such ordinance, and the president, relator herein, refuses to sign the ordinance and this proceeding is instituted to compel such action on the part of the president. A demurrer is interposed to the petition, general, as well as upon the ground of misjoinder of parties plaintiff. At the same time an answer was filed, to which a general demurrer is interposed. The general act providing for the organization, incorporation, and government of municipal corporations, enacted March 13, 1883 (Stats. 1883, p. 93), divides the cities of the state into six classes, in four of which a mayor is provided. And in the fourth class he is made a member of the council with the right to vote only in case of a tie. In the fifth and sixth classes the city council is required to elect one of its…

I dissent from the order denying a transfer of this cause, because it seems perfectly clear to me that the decision of the district court of appeal violates a canon of statutory construction universally accepted by common-law courts, and which in this state has been made a part of our code law. "In the construction of a statute or instrument the office of the judge is simply to ascertain and declare what is in terms *Page 503 or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted, and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all. " (Code Civ. Proc., sec. 1858.) This rule requires that meaning and effect should be given to section 4 of the act of 1897, if possible. The construction adopted by the court deprives that section of all meaning, and of any possible effect; completely obliterates it from the statute, and this partly upon the ground of the supposed absurdity which would result from giving it effect, and partly upon the ground that if the proviso at the end of section 1 is given any effect, there is a conflict between it and section 4, and…