Opinion of the Court.

H. F. Crane, for the Respondents.

In the case of Board of Commissioners v. Younger (29 Cal. 176), this Court says: "But a court of equity will not relieve a party from a contract on the ground of misrepresentation; where no confidential relation exists between the parties, and where the means and sources of knowledge, being equally accessible and open to both, the party complaining has no right to place reliance upon the statements of the other; for the law aids the vigilant, not the idle, and will not undertake the care of persons who will not, with the means at hand, take care of themselves."

So Chancellor Kent says, at page 484, 2d vol. Commentaries: "The common law affords to every one reasonable protection against fraud in dealing; but it does not go to the romantic length of giving indemnity against the consequences of indolence and folly, or a careless indifference. to the ordinary and accessible means of information." Story's Eq. Jurisprudence, Sec. 200 a.)

By the COURT:

The demurrer was properly sustained. It does not appear from the complaint that any relation of especial trust or confidence existed between the parties to the contract, or that the means of knowledge as to the terms and conditions of the writing were not equally open and accessible to both. The care and diligence of a prudent man in the transaction of his business would demand an examination of the instrument before signing, either by himself or by some one for him in whom he had a right to place confidence.

The fact that the plaintiff was illiterate, and could read manuscript only with difficulty, did not render this precaution less necessary.

Judgment affirmed.

1

Statement of Facts.

[No. 4684.]

THE PEOPLE OF THE STATE OF CALIFORNIA v. THE BOARD OF SUPERVISORS OF THE COUNTY OF SAN LUIS OBISPO.

WRIT OF MANDATE.—An act requiring and empowering a Board of Supervisors, as soon as practicable after its passage, to issue county bonds to raise money to be used in improving roads, and providing that the bonds shall be sold to the highest bidder after notice given by publication, and further providing that immediately the county treasurer shall transfer one-half the road-fund of the county over to the fund created by the act, to be repaid by money derived from the bonds, so that no delay may occur in the work, is mandatory, notwithstanding a provision in the act giving the board power to reject all bids for the bonds.

IDEM. The power given the board to reject all bids is a power to be used to effectuate, not to defeat the legislative will.

POWER OF LEGISLATURE.-The Legislature has the constitutional power to pass an act requiring Boards of Supervisors of counties to issue and sell county bonds for the purpose of raising money to improve roads in a county.

IDEM. The clause in the Constitution requiring the Legislature to establisn a system of county governments which shall be as nearly uniform as practicable, does not deprive the Legislature of such power. PARTY PLAINTIFF.-The people of the State, without a relator, may bring an action to compel, by writ of mandate, the Board of Supervisors of a county to issue bonds to raise money to improve roads, when there is an act of the Legislature requiring the bonds to be issued.

APPEAL from the District Court, First Judicial District, County of San Luis Obispo.

After the passage of the act (Laws, 1873-4, p. 436) for the issuance of bonds to aid in the construction of roads, the Board of Supervisors of San Luis Obispo County refused to issue the bonds. This was an application for a writ of mandate requiring them to do so. The suit was brought by the Attorney-General in the name of the State. The court below gave judgment that the writ issue. The defendants appealed.

The other facts are stated in the opinions and dissenting opinion.

VOL. L.-36

Argument for Respondent.

W. W. Cope and A. A. Oglesby and R. C. Bouldin, for the Appellants.

The act is merely enabling or permissive, and not mandatory. The first section is expressed in the language of a command, but the discretion vested in the board by other provisions deprives the act of any mandatory effect. Section 8 provides that the bonds shall be sold to the highest bidder, after the publication of a notice inviting proposals for the purchase thereof, but gives the board discretionary power in the rejection of bids. The last clause of the section is as follows: "The board has power to reject any or all bids, and no bond must be sold for less than ninety cents on the dollar, par value; but the board may sell said bonds, or any part thereof, at a rate not less than ninety-six cents on the dollar, par value, without any notice, and at private sale."

This clause is decisive of the construction of the act. It fixes the minimum price of the bonds, but does not require them to be sold at any price. On the contrary, it authorizes the board to exercise its judgment and discretion as to whether they should be sold or not. This is the necessary effect of the power given to reject bids.

The application is in the name of the people of the State, without the intervention of a relator. We are not aware of any authority for such a practice. The Code provides that the writ must be issued upon affidavit, on the application. of the party beneficially interested. (Code C. P., Sec. 1086.) An affidavit is required in all cases, and where the application is in the name of the people, some competent person must make the affidavit and appear in the proceedings as relator or informant. His interest must be shown by the affidavit. This is the settled practice throughout the country, except as otherwise provided by statute. (High's Extraordinary Legal Remedies, Secs. 430-439.)

J. L. Love, Attorney-General, and William J. Graves, for the Respondent.

The Code nowhere requires a relator to be named, and

Opinion of the Court-Wallace, C. J.

the practice is to be tested by the Code alone. This application, though in the name of the people, is made upon affidavit of a private individual. This is the correct practice. (People v. Pacheco, 29 Cal. 210; Linden v. Alameda Co., 45 Cal. 6; C. C. P., Sec. 1086.)

The writ is a civil remedy, and is awarded in all cases where a duty resulting from an office is not performed by the officer, at the instance of the party beneficially interested. Here the people are beneficially interested. It is not necessary to show that the individual making the affidavit has any interest in the performance of the act sought to be enforced. (High's Extraordinary Legal Remedies, Sec. 431; Pike v. The State, 11 Ill. 202; Heffner v. Com., 28 Penn. St. 108; Sanger v. Commissioners of Kennebec, 25 Maine, 291.)

The act under consideration (Laws, 1873-4, p. 436), is clearly mandatory on the Board of Supervisors of San Luis Obisbo County. It leaves them, so far as the issuance of the bonds is concerned, absolutely without discretion. They are "empowered and required" by the first section to issue the bonds, and the eighth section says plainly they must sell them. The whole scope, web and woof of the act shows command on the part of the Legislature speaking to its creature, the Board of Supervisors, requiring them to do certain things. The power given to the board to reject bids does not excuse them for a total failure to act.

The act to be done, concerning as it does the public at large, even were the board merely authorized to do it, this remedy might be invoked to compel its performance. (Napa V. R. R. Co. v. Napa Co., 30 Cal. 435; Robinson v. Butte Co., 43 Cal. 353.)

Mr. Chief Justice WALLACE delivered the following opinion:

1. One of the provisions of the act is that the county surveyor "must immediately commence and must diligently prosecute the work on said road to completion within as short a time as practicable after the passage of this act." Another provision is as follows: "And in order that no de

Opinion of Rhodes, J., concurring.

lay may occur in the prosecution of the work on said road, the county treasurer of said county must immediately, upon the passage of this act, transfer one-half of the general road fund of said county remaining in the treasury over to said 'Cuesta Road Fund,' and pay the same out to said surveyor in the manner herein before provided." The act further provides that those moneys are to be replaced in the general road fund by funds to be derived from the sale of the bonds in question. These important steps to be taken by the surveyor and treasurer immediately upon the passage of the act, in order that no delay may occur in the prosecution of the work on said road," are wholly inconsistent with the exercise of discretion by the board as to whether the work should be done at all. The power expressly conferred upon the board, in the eighth section of the act, "to reject any or all bids," is not inconsistent with this view. It is a power to be used to effectuate, not to defeat the legislative will, plainly expressed in the statute; the mere power to conduct the sale of the bonds in such a manner as will insure the best terms in the interest of the people.

2. The constitutional authority of the Legislature to enact statutes such as this has been so uniformly maintained that, in my opinion, it is not now open to question. Tho other points made by counsel for the appellant were disposed of at the hearing, and need not be further noticed. Judgment affirmed. Remittitur forthwith.

Mr. Justice CROCKETT concurred specially in the judgment.

RHODES, J., concurring:

The question whether section 4 of Article XI of the Constitution is mandatory or merely directory, and addressed to the judgment and discretion of the Legislature, is one of great importance, for on its solution depends the validity of a large number of statutes, some of which are being acted upon every day. The language of the section is as follows: "The Legislature shall establish a system of county and town governments, which shall be as nearly uniform as practicable throughout the State." The powers to