W. G. DAVISSON, Respondent, v. THE BOARD OF SUPERVISORS OF SOLANO COUNTY, Appellant

[No. 11241. Department One. September 9, 1886.] W. G. DAVISSON, Respondent, v. THE BOARD OF SUPERVISORS OF SOLANO COUNTY, Appellant. Road Overseer—Durr of Supervisors to Appoint—Appointment cannot be Compelled by Mandamus.—The provision of section 2642 of the Political Code, as amended in 1883, requiring the board of supervisors of each county, upon the petition of a majority of the tax-payers of a road district, to appoint a road overseer therefor, is merely directory, and a writ of mandate will not lie to compel the board to appoint a,particular person to such office. Appeal from a judgment of the Superior Court of Solano County. The proceeding was by mandamus to compel the defendant to appoint the petitioner to the office of road overseer of Suisun road district in Solano County. The petitioner, claiming to act under section 2642 of the Political Code, as amended on the 28th of February, 1883, presented a petition signed by a majority of the tax-payers of the road district, asking the appointment of the petitioner as road overseer. The board of supervisors refused to make the appointment, whereupon this proceeding was commenced on the 7th of January, 1885. Judgment was rendered in favor of the petitioner, ordering a peremptory writ of mandate to issue as prayed for. The further facts are stated in the opinion of the court. O. P. Dobbins, Jasper Robberson, and J. M. Gregory, for Appellant. Joseph McKenna, for Respondent. [MAJORITY — Ross, J.] Ross, J. Section 2642 of the Political Code, as amended in 1883 (Stats. 1883, p. 8), provided:— “ The board of supervisors of each county shall, upon the presentation of a petition signed by a majority of the tax-payers of said road district, appoint one road overseer or road master for each or any road district in their respective counties, such overseer to be an elector of the district for which he is appointed, who shall hold office for and during the pleasure of the board, not to exceed two years, and who shall, under the direction of the road commissioner of his district, perform the duties hereinafter in this chapter specified. And if a vacancy at any time occurs in any district, the supervisors may appoint without any petition for the unexpired term. If the board does not appoint road overseers, the road commissioners within their respective districts shall perform the duties imposed on road overseers by the provisions of this chapter; provided, that all road overseers, road masters, or road commissioners now in office by election must hold office and exercise the duties thereof for the terms for which they were elected.” Under that provision of law, the petitioner in the present case presented to the board of supervisors of Solano County a petition signed by a majority of the tax-payers of Suisun road district of that county, asking the appointment of the petitioner road overseer of the district. The board having refused to make the appointment, the Superior Court, upon the application of petitioner, awarded a writ of mandate to compel the appointment. Manifestly, the judgment is erroneous. Under no possible view of the statute was the board of supervisors obliged to appoint the person petitioned for road overseer. Nor under a true reading of the statute was the board obliged to appoint any one, although requested to do so by a majority of the tax-payers of the district. That the statute, which has since been changed (Stats. 1885, p. 94), was directory, is shown by the provision: “ If the board does not appoint road overseers, the road commissioners within their respective districts shall perform the duties imposed on road overseers by the provisions of this chapter.” Judgment reversed. McKinstry, J., and Myrick, J., concurred.