Hofacker v. Board of Supervisors

—Respondent Henry Hofacker and others petitioned the superior court for mandate to compel the Board of Supervisors of Lake County to call a special election to elect two members of the governing board of the Redbud Hospital District, a local hospital district in Lake County. The superior court ordered that the peremptory writ issue, and the Board of Supervisors has appealed. We affirm.

The facts are not in dispute. The Redbud Hospital District was formed in 1964 under division 23 of the California Health and Safety Code, sections 32000-32492 inclusive. The Board of Supervisors appointed the first members of the district’s board of directors, as required by law (Health & Saf. Code, §32100). The terms of two members of the board expired January 3, 1967. Under the provisions of Health and Safety Code section 32100.3, the secretary of the hospital board was required to give notice of an election to fill these vacancies, but the provisions of the statute were not fulfilled and the board did not call an election. In December 1966, a suit was filed challenging the status of the two directors whose terms were to expire the following January. Subsequently the two challenged directors resigned and the pending suit was dismissed. The hospital board then appointed two new members to fill the vacancies.

In March 1967 petitioners herein notified the Lake County Board of Supervisors that the hospital district had failed to call an election to fill the positions of the two directors whose terms had expired, and requested the Board of Supervisors to call a special election. The board considered this request, and on or about April 10, 1967 denied it. Respondents then filed their petition for mandate, contending that the Board of Supervisors had no discretion in the premises and was required by law to call the special election.

Sections 32100.3 to 32101, inclusive, of the Health and Safety Code direct the manner in which hospital district elections shall be held. These sections are mandatory and there is no question but that the hospital district was here required to call an election in November 1966 for the two offices of directors whose terms expired on January 3,1967.

The only statutory provision that purports to provide a

The wording of the statute presents the single issue to be decided in this case. Does the word “may” as used, in the statute create a mandatory duty on the part of the Board of Supervisors to call a special election where the governing board of a special district has failed to call a regular election to select members of the board? In short, does the word “may” here mean “must”?

Section 2505 was added to the Elections Code as an urgency measure in 1965. It appears to relate to any special district. Our research discloses no ease in which the section has been construed or applied.

Government Code section 5 reads as follows: “ Unless the provision or the context otherwise requires, these general provisions, rules of construction, and definitions shall govern the construction of this code.” (Italics ours.) Section 14 of the same code states: “ ‘Shall’ is mandatory and ‘may’ is permissive. ’ ’

The judicial interpretation of the word “may” is well summarized in Crowley v. Board of Supervisors, 88 Cal.App.2d 988 , 994-995 [ 200 P.2d 107 ] where the court said: “In Santa Cruz R. P. Co. v. Heaton, 105 Cal. 162 , 165 [ 38 P. 693 ], the Supreme Court said, ‘Primarily, and as ordinarily used in a statute, the word “may” does not denote the. imperative mood of the verb to which it is attached, but merely imports permission, ability, possibility* or contingency; and should never be interpreted or understood as. mandatory, except by compulsion- of the context in connection with which it is to be read, showing that-the legislature must

The most important consideration in the interpretation of a statute is the intention of the Legislature in enacting the law. (Code Civ. Proc. § 1859.) Often, in retrospect, the trail of a statute as it winds its way through the Legislature is cold and dim, and the legislative intent difficult to ascertain. The meager legislative record available to us here shows that Elections Code section 2505 originated as Senate Bill 877 by Senator Cologne at the 1965 session of the Legislature. The report of the Senate Local Government Committee which considered the bill reads as follows: ‘ ‘ SB 877 provides that if a special district board of directors fails to

Finally, the conclusion that the word “may" in Elections Code section 2505 should here be construed as “must" falls squarely within that line of cases holding such an interpretation to be proper where, to deny it, would result in a failure of justice to persons otherwise without remedy (Supervisors v. United States, 71 U.S. (4 Wall.) 435, 447 [ 18 L.Ed. 419 , 423]; Hayes v. County of Los Angeles, 99 Cal. 74 , 79-80 [ 33 P. 766 ]); or where the rights of the public depend upon the exercise of the power conferred. (County of Los Angeles v. State of California, 64 Cal.App. 290 , 297 [ 222 P. 153 ]; Gridley Camp No. 104 v. Board of Supervisors, 98 Cal.App. 585 [ 277 P. 500 ].) Here, by the simple process of failing to call an election, the governing board of the hospital district has defeated the right of local citizens to elect the members of the hospital board. Voters in the hospital district are wholly without remedy unless the Lake County Board of Supervisors éxereises the power conferred upon it by Elections Code section 2505 and calls an election. We think the Legislature intended to extend an effective remedy to the citizens of special districts who have been denied the fundamental right óf suffrage. We hold that the language of Elections Code section 2505 is mandatory, and upon facts here present, requires the Lake County Board of Supervisors to call an election to fill vacancies in the governing board of the Redbud Hospital District.

The judgment granting the writ is affirmed.

Draper, P. J., and Brown, (H. C.), J., concurred.