scribed the consequences which were to follow upon that proclamation. He reaches the conclusion that "such proclamation was wholly in the nature of an executive act, a prescribed mode of ascertainment, which involved no exercise by the President of what belonged to the law-making power."

Hobart v. Board of Supervisors of Butte Co., 17 Cal. 23, is also a well-considered case having a general bearing upon the subject and is authority for the broad statement of law that "an act granting power to be exercised upon such condition as the legislature may impose is no delegation of legislative authority, nor is it invalid."

[2] Considering a "recommendation" as carrying the meaning only of a suggestion as to the desirability of a certain action, the apparently mandatory "shall" fades into nothing more than a term of direction. There is ample authority for holding "shall" to be directory rather than mandatory, especially in a matter, as here, which relates to the performance of a public duty. It is no part of the duty of either or both of the officials mentioned in the statute to legislate upon any matter. On the other hand, it is most emphatically the duty of the board of supervisors, as a board, to perform legislative functions, and the presumption is that the legislative department of the county government would have an exclusive right to determine not only the preliminary question as to the desirability or the advisability of annexing a common school district to a high school district, but as well to ultimately enact the necessary legislative act to bring about that result.

"Shall" or "must" are frequently construed as directory terms. Whenever the text of a statute and the intent of the legislature as a body, as gathered either from the particular statute under consideration, or from it in connection with other related statutes, show that the real meaning of the legislature was that apparently mandatory words shall be given a directory meaning, they will be given such a construction. Whatever is within the ascertained intention of the legislature is just as much a part of the statute as are the written words herein contained, and if the intent conflict with the literal meaning, especially where the rights of the public are involved, words of command may be construed as permissive, or as carrying discretionary

powers. (People v. Sanitary District of Chicago, 184 Ill. 597 [56 N. E. 953]; Clancy v. McElroy, 30 Wash. 567 [70 Pac. 1095]; First National Bank of Seneca v. Lyman, 59 Kan. 410 [53 Pac. 125]; Cooke v. Spears, 2 Cal. 409; Estate of Chadbourne, 15 Cal. App. 366 [114 Pac. 1012].) The case of Board of Education of the City of Sacramento v. Board of Trustees of the City of Sacramento, 96 Cal., at page 42 [30 Pac. 838], is illustrative. The statute there in question, among other things, provided in substance that it was the duty of the board of education to submit to the board of trustees an estimate of the amount of money that would be required for school purposes during the current year, and that upon receipt of same the board of trustees "shall" levy a direct school tax, etc. In holding that the word "shall" was merely directory, the court said: "The general rule in the construction of statutes relating to the performance of a public duty which does not affect any private rights or interests but concerns the public alone, is that the language of the statute, though imperative in terms, must be regarded as directory rather than mandatory." A similar question was raised on nearly identical facts in the case of Board of Education of the City of Woodland v. Board of Trustees, etc., 129 Cal. 599 [62 Pac. 173], and the court affirmed the decision in the Sacramento case, especially with reference to the effect of the provisions of the statute, closing with the remark that "the language used must therefore be held, as in the Sacramento case, to be directory only." In a case involving a section of the Political Code which at the time provided in substance that on the neglect of persons who excavate ditches across public highways to bridge such ditches, "the road overseer for that road district shall construct the same," the court, taking other statutes into consideration, ruled that the word "shall" should be construed as "may."

The statute, in addition to prescribing the manner in which the desirability of annexing a common school district to a high school district shall be brought to the attention of the board of supervisors, also vests a discretionary power in the board as to the high school district to which the common school district shall be annexed, dependent upon the accessibility of the latter to the former; and providing further that a notice shall be given by the board of a hearing on

the matter, with the ultimate right of determination therein resting in the electors residing within the confines of the school district proposed to be annexed. No legislative power is attempted to be conferred upon the county superintendent of schools or upon the individual supervisor-only the right to make a recommendation, which recommendation suggests to the board of supervisors the propriety of, or the advantages which may accrue from, enacting legislation having the effect of annexing a given common school district to an undesignated high school district, as the board of supervisors in its discretion, or the electorate of the common school district may determine. Such provisions in the statute are indicative of the intent of the legislature with respect particularly to the effect of the word "shall"; that is to say, whether that word should be construed as mandatory or merely directory, in connection with the duties of the board of supervisors upon the receipt by the board of the "recommendation" by the county superintendent of schools. It therefore becomes apparent that the intent of the legislature was, upon the recommendation of certain designated officials, to enact such legislation as would give the board of supervisors the authority, to be exercised at its discretion, to do the things enumerated in the enabling statute.

[3] Appellant contends that the statute in question "is special legislation in that it provides for annexation only to high school districts that are governed by an appointive school board." As a matter of fact, the statute contains no provision with reference to the annexation of a common school district to a high school district having an appointive school board. The statute, after providing generally for annexation of common school districts to high school districts, further provides "that where the high school district which is most accessible to a majority of the pupils of the common school district attending high school is governed by an appointive school board, that the board of supervisors instead of annexing said common school district to the high school district having an appointive school board, shall cause to be levied upon the property of such elementary school district a tax which shall produce an amount computed as follows: From the entire cost of maintenance of the high school for the year plus the interest and payments on bonds

of said high school district for the year, there shall be subtracted the entire income of such high school from state and county sources; the remainder shall be divided by the units of average daily attendance in said high school, and the quotient so obtained shall be multiplied by the units of average daily attendance of pupils from the aforesaid elementary school district. Said amount shall be levied and collected from such elementary school district in the usual way and shall be paid into the special fund of the high school district."

It is urged that there is no reason why annexation should be required in one case and prohibited in the other, or why an annexed high school district should be required to contribute to the high school fund in proportion to its taxable property, while the common school district not annexed should pay taxes in proportion to actual attendance of its children in the high school. The fact that one class of school districts is dealt with by the law in a manner different from that in which another class is treated is in itself no sufficient reason for declaring the law to be special legislation and hence inimical to the constitutional provision. [4] The discrimination in the creation of a class among school districts, or in the manner of providing for the maintenance of the high school in either class, in order to fall within the inhibition of the constitution, must be arbitrary, not uniform in its operation, and not founded upon some natural or intrinsic or constitutional distinction. (City of Pasadena v. Stimson, 91 Cal. 251 [27 Pac. 604]; Darcy v. Mayor of San Jose, 104 Cal. 642 [38 Pac. 500]; Rode v. Siebe, 119 Cal. 521 [39 L. R. A. 342, 51 Pac. 869]; Deyoe v. Superior Court, 140 Cal. 481 [98 Am. St. Rep. 73, 74 Pac. 28]; Ex parte King, 157 Cal. 164 [106 Pac. 578].) In the Deyoe case it is said that "the classification must not be arbitrary for the mere purpose of classification, but must be founded upon some natural or intrinsic or constitutional distinction which will suggest a reason which might rationally be held to justify the diversity in the legislation."

The classification here as to annexation is not whimsical, but it is most natural, and the statute has a uniform application. By rules of law not here under consideration it is provided that some school districts be governed by an appointive board of trustees, while other such boards shall be

elected to office. In the matter of taxation some common school districts may have few children who may attend high school; other common school districts may have many. It is proper that the several districts pay taxes according to the benefits received. The statute in question merely recognizes existing conditions and provides for the maintenance of each class of school districts by an appropriate method of taxation.

[5] Appellant's third point with reference to the unconstitutionality of section 1734b in that "it subjects annexed districts to taxation and local government without representation" is completely answered by the case of Board of Education of the City of San Rafael v. Davidson, 190 Cal. 162 [210 Pac. 961]. The facts of that case are nearly identical with the facts herein. A matter involving the particular point was squarely before the court and the ruling was directly opposed to appellant's contention. Among other things, the court said: "We conclude, therefore, that under the state school law as followed by the charter of San Rafael it is contemplated that outlying and adjacent elementary school districts may be annexed to a city high school district for high school purposes and that the district so consolidated is to be under the government and control of the city board of education and the annexed territory becomes a part of the city for the purpose of electing such board."

[6] As a final contention on the part of appellant it is urged that section 1734b is void for the reason that it subjects annexed districts to taxation for outstanding bonds of the high school district.

Section 18 of article XI of the California constitution provides, among other things, in substance, that no board of education or school district shall incur any indebtedness or liability exceeding in any year the income and revenue provided for such year without the assent of two-thirds of the qualified electors thereof voting at an election held for that purpose. Section 1734b contains no provision directly affecting the question of the payment by annexed common school districts of either the principal or the interest on any outstanding bonds on the high school district to which such common school district may be annexed. But as to the common school districts which are not annexed but which are most accessible to a given high school district which is