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 wherethere are several provisions or particulars, such a construction is, if possible, to be adopted as will give effectto 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 that theproviso being more reasonable, and more in accordance with the supposed general intent of the law, must prevail. In my opinion, neither of these reasons holds good. The supposed absurd result of giving effect to section 4 is that it would be impossible to pass an ordinance imposing a penalty, or an ordinance of any other of the classes enumerated in section 1 of the act, without the vote of every other member of the board if the president happened to be opposed to its adoption. This must be conceded, but if the legislature had passed an act plainly requiring a unanimous vote of the board to give validity to an ordinance of any of the enumerated classes, I know of no ground upon which a court could take upon itself to enforce an ordinance which had received only four out of five votes in the council. And if, giving effect to all the provisions of the act of 1897, it must be conceded that four out of five votes are required to pass such an ordinance against the opposition of the president, there appears to be even less justification for the judicial enforcement of such an ordinance when it has been passed by the vote of a bare majority of the board and against the opposing vote of the president.
As to the supposed conflict between the proviso, if given any effect, and section 4, it proves to be an unfounded supposition when it is shown that the purpose of the proviso is fulfilled in applying it to municipal corporations of the fourth class, in which class, and in which class alone, the mayor — an officer elected by the people — is made a member, eo nomine, of the council, the legislative body, and given a casting *Page 504 vote in the passage of ordinances. (Stats. of 1883, p. 326.) The proviso, I say, has its full effect in its application to corporations of the fourth class, and there was a valid and perfectly apparent reason why the mayor in that class of corporations should be specially excepted from the requirements of the act of 1897, for by section 670 of the municipal corporations act his veto power and the mode of its exercise was already clearly and exactly defined. If his power was not to be enlarged, the proviso was necessary, and as its only effect was to leave the mayors of that class of corporations with the same veto power they had been accustomed to exercise, we are bound to suppose that was what the legislature meant. In this view there is no conflict between the proviso and section 4. The first applies to cities where the mayors elected by popular vote are members of the city council — cities of the fourth class, the second applies to cities in which there are no mayors, eo nomine — independent officers elected by popular vote — but only a president of the board of trustees, viz.: (cities of the fifth and sixth class) upon whom the duties prescribed by the act are devolved.
There is, in my opinion, no conflict in the different provisions of the act, no ambiguity or uncertainty, and nothing in the result of its enforcement according to its terms which a court is entitled to pronounce an absurdity which the legislature cannot be supposed to have contemplated.
I think the writ of mandate should have been denied. *Page 505