Murray v. Board of Supervisors, 23 Cal. 492

Murray v. Board of Supervisors

23 Cal. 492 | Cal. | 1863

Crocker, J.

delivered the opinion of the Court—Norton, J. concurring.

This is an application for a writ of certiorari to issue to the defendants, commanding them to certify to the District Court the proceedings of the Board of Supervisors, relating to the granting of certain ferry licenses, and that them action therein be vacated and set aside. The defendants appeared, and demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, or to authorize the writ. The Court sustained the demurrer, and rendered final judgment for the defendants, from which the plaintiff appeals.

The complaint avers that the plaintiff is the owner, and has been for a long time, of a franchise, sometimes a bridge, and at others, a ferry franchise, over the Merced River, at a certain place; that the Board of Supervisors, without the notice required by statute, granted a ferry license to one Nelson, to run a ferry across said river, about twenty rods above the place of plaintiff’s ferry; and that such ferry is not required by public convenience, nor is it rendered necessary by the intervention of any creek or ravine; that he appeared before said Board of Supervisors and opposed the granting of the license to Nelson, on the ground that the granting of the license was in violation of the statute ; that the reason given by the board, in their minutes, for granting the license, was, that due notice of the application had been given, and no legal excuse was shown why it should not be granted.

Although the complaint is very imperfectly drawn, and is not very clear in its averments, still there are sufficient facts stated to authorize the issuing of the writ. The objections to the jiroceedings appear to be: 1st, that the proper notices had not been published or served, as required by the statute, to give the Board of Supervisors jurisdiction in the matter; 2d, that the record of the board merely shows that the license was issued on the ground that no legal excuse was shown against it, when it should show affirmatively that it was required by the public convenience, or by the sit-*495nation of a town or village, or the crossing of a public highway, or that the intervention of some creek or highway renders it necessary under the provisions of Sec. 6 of the Act concerning Ferries and Toll Bridges. (Wood’s Dig. 460.) Sec. 456 of the Practice Act authorizes the writ of certiorari to issue “in all cases where an inferior tribunal, board, or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board, or officer, and there is no appeal, nor, in the judgment of the Court, any plain, speedy, and adequate remedy.”

There can be no doubt of the power of the District Courts to grant a writ of certiorari to review the action of a Board of Supervisors in granting a ferry license. (Waugh v. Chauncey, 13 Cal. 11; Fall v. Paine, 23 Id. 302; Robinson v. Board of Supervisors of Sacramento, 16 Id. 208 ; People v. Supervisors of El Dorado, 8 Id. 58.) The District Court has a clear right, upon the return of the writ of certiorari, to determine at least whether the board had jurisdiction of the proceeding in which the license was issued, and whether it was a case within the provisions of the statute authorizing a ferry to be established within one mile of a regularly established ferry or toE-bridge. The averments of the complaint are sufficient to show that in fact it was not such a case as would authorize them to issue a license for a new ferry, and that the proper notices necessary to give the board jurisdiction of the matter had not been served or published. Those are questions to be determined upon the return of the writ.

The judgment is reversed, and the cause remanded, and the defendants are required to answer the complaint within ten days from the service of notice of the filing of the remittitur in the Court below.