Henshaw v. Bd. of Supervisors of Butte Cty.

19 Cal. 150 | Cal. | 1861

Baldwin, J. delivered the opinion of the Court

Field, C. J. and Cope, J. concurring.

Waiving, for the sake of the decision upon the merits, other matters, we think the judgment of the County Court should be reversed, for the reason that a review by certiorari cannot be had of the action of the Board, except for excess or want of jurisdiction. (Whitney v. San Francisco Fire Department, 14 Cal. 499.) The Supervisors have the general power to grant a ferry franchise, and to determine when, and under what circumstances, and to whom, it shall be granted. The act (Wood’s Dig. 459) does not give an unqualified right to the owner of land, on either or on both sides of a stream, to demand a ferry license. The third section provides: “Any person may petition the Board of Supervisors for a license to keep a ferry or toll bridge, and if, in the discretion of the Board, such ferry or toll bridge be necessary, and the petitioner be a suitable person to keep the same, they shall order the Clerk of said Board to issue a license, on the payment of such license tax, for the term for which the license is granted, as the Board may direct, not to exceed the rate of one hundred dollars, nor less than three dollars per month for such term, and filing with the Clerk the receipt and bond as hereinafter provided.”

Section five provides: “ Upon the production of the receipt of the County Treasurer to the Clerk of the Board for the amount of license tax assessed by said Board, and filing the bond as hereinafter required, said Clerk shall issue such license to keep a ferry or toll bridge at the place therein mentioned for a term not less than six months, nor more than one year; but no license to keep such ferry or toll bridge shall issue unless the land on which it is sought to establish such ferry or toll bridge be public land, or the land of said petitioner, or where the holders or owners of any land where the public convenience may require that such ferry or toll bridge shall be kept shall neglect or refuse to have a public ferry or toll bridge established within a reasonable time.”

Section eight is as follows : “ When any person, being owner or holder of any land lying on any river, creek, slough or arm of the sea, within or bounding on this State, except such as are by section two of this act exempted, where any public road may cross the same, and where the public convenience may require that a ferry or toll bridge should be kept, shall neglect or refuse to have a public ferry or toll bridge established within a reasonable time, it shall be lawful for the Board of Supervisors of the county in which it may be necessary to have such ferry or toll bridge established, upon proper application being made, and after having given three months’ public notice of their intention, by advertisement in some public newspaper in the county, or by written notice set up in three of the most public places in the county, to grant a license to some person to keep a ferry or toll bridge at said place, on such conditions as to them may appear reasonable and just, taking bond with security, as hereinafter provided.”

It seems that the holder of lands is put on the same footing, in respect to this privilege, as the owner. We see no reason or positive provision in the statute which gives the owner of land on one bank of the stream any preference over one claiming and in possession of land on the other side ; but the reverse seems contemplated. Whether the proof showed to the satisfaction of the Board the fact of the grant of previous license to Hale ; that Hale was the holder or possessor of this land on one bank of the stream ; that a ferry was necessary; that Henshaw, if originally entitled in preference to Hale, has unreasonably neglected to apply to establish the ferry, are matters to be considered by the Board in the exercise of their jurisdiction. The proceedings before the Supervisors seem to make a case for the legitimate action of the Board ; and even if we could inquire after this into the process by which the result was reached, or the sufficiency of the proofs, we see nothing in the record which required an interference with the action of this tribunal.

Judgment of the County Court reversed and cause remanded.

The above opinion and judgment were reaffirmed upon reargument.