255 P. 251 | Cal. Ct. App. | 1927
A writ of certiorari was issued by the superior court of Los Angeles County, directed to the board of supervisors of that county for the purpose of reviewing the proceedings leading up to the creation of the "Moneta County Fire Protection District of Los Angeles County" under the provisions of "An Act to provide for the formation, management and dissolution of county fire protection districts, and annexations thereto, setting forth the powers of such districts and providing for levying and collecting taxes on property in such districts to defray the expense thereof" (Hillyer's Consolidated Supplement, pt. 2, p. 2707). From the return to the writ it appears that a petition was filed for the establishment of the district, and that the board of supervisors determined that it should be formed. Notice of the time and place fixed for "a hearing of the matter of the formation" was published, as required, in the "Gardena Reporter," which newspaper was deemed by the board most likely to give notice to the inhabitants of the territory embraced in the resolution, of the proposed formation of the district. Written objections by fifty-nine freeholders were presented and heard and thereafter the board of supervisors decided to establish the district. The act provides that where objections are filed by twenty-five or more freeholders the board of supervisors must submit its decision to an election called by it for that purpose and that it must give notice of the "resolution ordering the holding of such election" by publication "in the newspaper of general circulation in said proposed district deemed by said board to be the most likely to give notice to the electors thereof of such proposed election." In this instance the board determined that the "Moneta Observer" was the paper most likely to give notice and ordered the notice to be published accordingly. The notice, however, was not published in this last-named newspaper, but was published in the "Gardena Reporter." The election was held and subsequently the board, in accordance with the provisions of the act did "enter a finding to that effect upon its minutes" in which *161 it declared that ninety-four votes were cast in favor of and eighty-five votes were cast against the creation of the district. The district was declared established. The judgment of the superior court affirmed the action of the board of supervisors and this appeal is from that judgment.
The appellant maintains that the board of supervisors was exercising quasi-judicial functions in all of the steps taken by it up to and including its final determination that the votes cast were in favor of the creation of the district; that the publication of the notice of election in a newspaper other than the one designated was an insufficient notice; and that due notice is a prerequisite to the exercise of its jurisdiction thereafter. The respondents' answer is that the things done by the board up to the point where, after hearing, it determined that a district should be formed, are judicial in character and that all of the things done by the board thereafter are only ministerial. [1] It is conceded by both counsel that the writ of certiorari will not lie except to review proceedings of a judicial or quasi-judicial character, hence it is unnecessary for us to do more than refer to the case of People v. Board ofSupervisors,
[2] The main difficulty in this case is to determine whether or not the giving of the notice involved a quasi-judicial act or was a necessary prerequisite to the performance of somequasi-judicial act. It can hardly be denied that the determination that the "Moneta Observer" was the newspaper most likely to give notice to the electors was a quasi-judicial finding. We may assume, for the purposes of this case that the establishment of the boundaries was a legislative act; that the calling of the election and the canvass of the votes were purely ministerial; nevertheless, it remained for the board to do something beyond the mere canvassing of the returns before the board could, in the words of the act, "enter a finding" to the effect that a majority of votes had been cast at the election in favor of the creation of a district; it must upon proper evidence, such, for example, as the proof of publication by affidavit of the publisher, decide that a proper notice had been given in the newspaper which it had already decided was the most likely to give notice to the electors. This determination cannot be *162 said to be ministerial, but involves a consideration and weighing of testimony. It is judicial.
We find nothing in the case relied upon most strongly by the respondents (Borchard v. Supervisors,
[3] Having determined that the particular thing complained of in the instant case is subject to be reviewed in a certiorari
proceeding, the next and final question is whether the publication of the notice was sufficient. We think it was not. It has been held that the publication of notice in a newspaper other than the one designated is equivalent to no notice at all. (Chase v. Treasurer of Los Angeles et al.,
Judgment reversed.
Works, P.J., and Craig, J., concurred. *165