| Cal. | Jul 1, 1857
after stating the facts, delivered the opinion of the Court.—Burnett, J., concurring.
The act concerning public ferries and toll-bridges, passed April 28, 1855, devolves the power of establishing public ferries upon the supervisors of the various counties of the State. The twenty-fifth section of the act provides, that when any member of the board of supervisors is interested in the establishment or construction of any ferry or toll-bridge, or in counties where no board of supervisors is organized, the County Judge shall exercise the same duties as those that are devolved on the supervisors.
It will be observed that the Legislature has lodged the power of granting ferry-privileges, by this act, in two distinct branches of the government: First, with the supervisors, which is political or legislative in its character; and, Second, in the judiciary.
There are many acts necessary to bo done, in the administration of government, which are of a mixed character, and cannot strictly be termed either legislative, executive, or judicial, and which might, without impropriety, be conferred on any one of the departments of the government. In other words, if the Legislature should confer a power on one department, which did not in its nature strictly belong to some other branch of the government, we would not interfere with what might be considered a proper legislative discretion, but would recognize the exercise of the power, where it had been committed. But, by the Constitution of this State, the powers of government have been divided into three departments, and it is obligatory upon this Court, to prevent and restrain one department from exercising functions properly appertaining to another.
If the duty of establishing ferries had been given to the County Judge alone, we are not prepared to say that it would have been improper; but, having been entrusted to two dille rent branches of the State government, we are bound to decide to which one it properly belongs, as we are satisfied it cannot exist in both at the same time. If it could, we would have presented the anomaly of a proceeding, legislative or ministerial, where the supervisors could act, in which their discretion could not be reviewed—or judicial, when entertained by the County
The power to grant a franchise is political in its nature. In England, these grants emanate from the Crown; in this country, the people are the source of power, and represent, in that respect, the Crown. The power belongs to the Legislature, and may properly be delegated, under the Constitution, to the supervisors, who are invested with authority to superintend the fiscal and police affairs of the county.
In many States this power is given to the County Courts and Courts of Sessions, and I do not know of the propriety of its exercise having ever been questioned; in fact, it has sometimes been held to be judicial, but in all such cases there was no constitutional provision similar to that of ours, and although the general doctrine, that Courts could exercise none but judicial functions has always obtained, they have not observed that strictness, in determining the precise nature of the acts enjoined on them, which they would have been compelled to do, had the Constitutions of those States been similar to our own. For instance, it has been held that the levying of a tax, the laying out, opening, or widening of a street, were sufficiently judicial in their nature to warrant a Court in entertaining jurisdiction of the subject, and yet, it would hardly be contended that, under our Constitution, the County Judge, or any other judicial officer, could exercise these powers.
Our conclusion, from a careful examination of the whole subject, as well as the former opinions of this Court, is, that the power to grant a ferry-license is not judicial, and that its exercise properly belongs to the supervisors.
From the foregoing, it results that the County Judge exceeded his jurisdiction, in entertaining and determining the application.
By the four hundred and fifty-sixth section of the Practice Act, the writ of certiorari is made the proper remedy in such cases; to the exercise of this power it is not necessary that the Court issuing the writ should possess appellate jurisdiction. See People v. Hester, Oct. T., 1856.
The District Court erred in dismissing the writ, the want of jurisdiction appearing on the face of the proceedings; the order of the County Judge should have been set aside, and he restrained from further acting in the matter.
Judgment reversed.