In re Spring Valley Water Works

| Cal. | Jul 1, 1860

Baldwin, J. delivered the opinion of the Court

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

This was an application for a certiorari to the County Judge of San Mateo county to bring before the Court certain proceedings touching the condemnation of certain lands to the purposes of the corporation.

We think the remedy sought by the petitioner is not a proper one. The dismissal of the petition for the cause assigned is not an excess of the jurisdiction of the County Judge, in the exercise of the special powers given him by the Act of 1858 (Statutes of 1858, 218). It seems that the County Judge acts in such cases by virtue of certain specified statutory directions. Commissioners are to be appointed by him, upon proof of notice to parties interested, and of the regularity of the proceedings taken, etc. The course of these proceedings is given, and is very simple. It seems 'that the Judge has no control over the judgment or award of the Commissioners so appointed, but an appeal is given directly from their action. These preliminary proceedings of the Judge seem to be merely ministerial. The acts of a Clerk or Sheriff are frequently as much judicial as these required acts of the Judge; for they involve discretion as to the regularity or effect of precedent acts—as affidavits, the construction of orders, service of papers, etc.

The discretion given to the Judge, therefore, to determine the regularity of the preliminary proceedings, the course of these proceedings being given, does not make the Judge a judicial officer in this respect in that sense which protects him from the process of mandamus to compel him? to obey the direction of the statute.

The objections to the proceedings and their dismissal because the certificate of incorporation was defective, is without any foundation. The failure to describe the place of business of the corporation as the “ principal place of business,” was a mere technical error, which did not avoid the act. The charter could not be held void on any such ground. The statement that San Francisco was the place of business, would seem to imply that it was not only the principal, but the only place of business. Probably these intimations will be sufficient to induce the County Judge to proceed to the execution of his duties under the law; if not, the petitioner can proceed by mandamus in the District Court.

As this remedy is plain and unembarrassed, we cannot grant a writ of certiorari as prayed for, if we could in any event.