87 Cal. 226 | Cal. | 1890
This is a petition for a writ of prohibition to restrain the superior court of the county of Los Angeles, McKinley, judge, from further proceedings against the petitioner in a certain action pending in that court, wherein the city of Pasadena is plaintiff, and the petitioner herein, and several other persons, including the county of Los Angeles, are defendants, brbught for the purpose of acquiring, by condemnation, a right of way for a sewer along and in certain of the county roads of said county of Los Angeles.
The city of Pasadena is a municipal corporation of the sixth class, organized and existing under the provisions of chapter 7 of the act of the legislature, entitled "An act to provide for the organization, incorporation, and government of municipal corporations,” approved March 13, 1883. For the purpose of providing drainage for the city, and protecting the health of the inhabitants thereof, she has devised and adopted a system of sewerage, and secured a considerable tract of land situate outside of and a considerable distance from the corporation as a place for the discharge of the sewerage of the city, called the " sewer farm,” and has commenced the construction of a main sewer through certain streets of tho city, and contemplates continuing the same through certain of the public highways of the county from the city to said " sewer farm.” The right of way has been granted by the board of supervisors of the county, for said sewer, through the necessary highways, for a portion of the distance, but there is one highway through which the city authorities declare that it is necessary to construct the same, the fee of which is not vested in the county, but the county has a grant of the same, "for the purposes of a highway, but for no other purpose,” or in other words, a mere easement; and to secure the right of way for this sewer in that highway, which constitutes a part of the route of the sewer, the action was brought, the further prosecution of which it is now sought to prohibit.
The question, then, is, whether the absence of the existence, or the wrant of averment or proof, of these two facts, or either of them, deprives the court below, respondent here, of all jurisdiction to entertain, hear, or determine the action, or whether they simply go to the question of the right of the plaintiff in the action to institute and maintain the same, and to recover therein. If they deprive the court of jurisdiction to entertain the action, and to hear and determine the rights of the parties therein, so that it is acting upon the complaint filed therein wholly without jurisdiction, then it would seem that the petitioner here might be entitled to relief by prohibition; but if, on the other hand, it has jurisdiction to entertain the action for condemnation so commenced before it, and these are merely questions upon which, among others, it may he called upon to adjudicate in the course of the proceeding before it, then the mere fact that it reaches an erroneous conclusion upon these questions, or either of them, "will not entitle plaintiff to the writ of prohibition, but the error, if it be one, will be subject to review upon appeal.
Chapter 7 of the municipal incorporation act referred to is the one which provides for the organization, powers, and government of municipalities of the sixth class.
Petitioner insists most strenuously that it is from this section that the court derives its jurisdiction to entertain a proceeding for condemnation, for such a purpose, at the suit of such a corporation; and that if the complaint fails to show, or showing it, upon the trial, the plaintiff fails to prove, an attempt and inability to agree, and an order of the trustees to prosecute the action, the court is entirely without jurisdiction in the premises.
We cannot accede to this proposition. The superior court is a court of general jurisdiction. By section 5 of article 6 of the constitution it is specially provided that it shall have jurisdiction “of all such special cases and proceedings as are not otherwise provided for.” Part 3 of the Code of Civil Procedure provides for “special proceedings of a civil nature.” Title 7 of that part is devoted specially to the making of provision for proceedings had in the exercise “ of eminent domain.” It constitutes the general law of the state upon that subject, and expressly provides that the right of the people or government to take private property for public usé may be exercised in the manner provided in that title. Section 1243, found in that title, provides that “ all proceedings under this title must be brought in the superior court of the county in which the property is situate.”
Counsel have cited very many cases in support of the proposition that the fact of inability to agree, and express authorization to institute the proceeding, are jurisdictional, and go to the power of the court itself to hear and determine the case. But most of them are cases where the proceeding was not only special, and not according to the usual course of civil procedure, as it is here, but also before tribunals -which were themselves special and of limited jurisdiction. Not one of them, so far as we have been able to find, challenges the power of a court of general jurisdiction to hear and determine, in such a proceeding, the question of the right of parties to maintain the action and secure the relief under statutory provisions like that above quoted from the municipal government act. The rulings made in the cases cited were made, not upon application for prohibition, but upon appeal, or when the proceeding was before a tribunal of special and limited jurisdiction, upon certiorari.
The complaint in the condemnation proceeding here sought to be prohibited is in strict conformity with the
Upon this proposition, the case of State v. Valliant, 13 S. W. Rep. 398, seems to be much in point. We quote the statement as to what the case was, and as to what the court said on the subject, from petitioner’s reply brief: “A certain railroad company sought to condemn part of the track of another, by proceedings taken in the circuit court of St. Louis. The defendant company applied for a writ of prohibition, on the ground that the statutes and ordinances of St. Louis did not authorize the exercise of jurisdiction in eminent domain there invoked in favor of the company invoking it.” Upon the application for prohibition, the court held “that the circuit court of St. Louis had jurisdiction of proceedings to appropriate property to public use, in the exercise of the right of eminent domain, in a proper case, is unquestioned and unquestionable; but the substance of the petitioner’s contention here, as well as the ground on
This quotation, taken from the petitioner’s own brief, would seem to be conclusive against her in this proceeding. Nor is there anything in any of the cases cited from this court in conflict with this view. We have examined them all, and in every case but one, where the court has discussed the point here contended for by petitioner, it was upon appeal, and the question was, whether the court below had erred in its determination of this question of law, not in exercising jurisdiction to determine upon it. In the one case of Mahoney v. Supervisors, 53 Cal. 384, the proceeding was for a writ of. mandate to compel the board of supervisors to act upon the appointment of commissioners, made by the mayor and others, to condemn- certain water rights. The petitioner, who claimed to be the owner of the property which was to be condemned, failed to show that he had ever offered to sell at any price. The statute and the tribunal were both special and local; and the act provided for the appointment of commissioners only in case the municipal authorities, who had not only the authority to purchase, but to select the commissioners in case the ¡iroperty could not be acquired by negotia
Petitioner relies upon the decision of this court recently made in the case of Havemeyer v. Superior Court, as decisive of the question of her right to the writ of prohibition in this case. The cases are not at all parallel. In the Havemeyer case, the proceeding in the court below was one taken on behalf of the state to secure a decree declaring the corporate franchise of a private corporation forfeited, and for a statutory penalty for violation of its charter. Upon the application for prohibition in this court, no question was made as to the jurisdiction of the court below to hear and determine the action which was brought before it, and in it to determine every question that Avas raised affecting the rights of the parties to the action in the subject-matter thereof. And this court, in passing upon the application, expressly declared, in substance, that it did not pass upon the jurisdiction or the regularity of the proceedings of the court below ill hearing and determining the case before it, or in enforcing the judgment which it had rendered. The proceeding to which the judgment of and the w7rit granted by this court Avas directed Avas one had after judgment in the matter of appointing a receiver Avith express direction to seize and take into his possession certain property not involved in the action in which the court had pronounced its judgment, and which was at the time in the possession of and claimed to be owned by persons who were not parties to that action, and who, consequently, had no day in court, and no right of appeal. In this case the petitioner is a party defendant in the action pending in the court below, and is actively prosecuting her defense, with a right to have any ruling which may be made in that court reviewed here on appeal. In the view we take of the case, she is not entitled to the relief here demanded.
So ordered.
Thornton, J., Sharpstein, J., and Paterson, J., concurred.