People ex rel. San Francisco v. County Judge, No. 2,520

No. 2,520 | Cal. | Jan 15, 1871

Bhodes, C. J.

delivered the-opinion -of the Court, Temple, J., Wallaoe, J., and Cbockett, J., concurring;

'The Commissioners appointed in pursuance of the Act of April 4, 1864 (Stats. 1863-4, p. 352), in the proceedings for tbe extension of Montgomery and Connecticut streets, presented to tbe County Judge their written application, requesting that be should determine tbe compensation to be paid to them, for their services as such Commissioners, and tbe amount to be paid for services of counsel, etc., as provided by tbe Act of March 4, 1870 (Stats. "1869-70, p. 146). Tbe County Judge thereupon designated tbe time and place for tbe bearing of tbe application. At this stage of tbe proceedings, tbe writ of certiorari was issued to tbe County Judge.

Tbe position taken by tbe petitioner is, that the Act of 1870 is unconstitutional; and, indeed, tbe real purpose of tbe action is to obtain a judicial determination of that question. Tbe question cannot be entertained, while tbe proceedings before tbe County Judge remain in their present condition. Tbe writ of certiorari is a writ of review. Its office is to bring up for review final determinations and adjudications of inferior tribunals, boards or officers exercising judicial functions, when there is no appeal, nor any plain, speedy and adequate remedy. Tbe writ is necessarily founded on a final determination. Were tbe rule otherwise, a writ might issue at any step in tbe proceedings of tbe inferior tribunal, and thus withdraw the case from tbe consideration of tbe inferior tribunal, although such tribunal might, were tbe point presented, decide that it bad no jurisdiction in tbe matter submitted to it. This would be tbe exercise of original jurisdiction by tbe Court issuing tbe writ, and not a review of tbe determination of tbe inferior tribunal. Tbe matter complained of would be, not that tbe tribunal bad exceeded, but that it was about to exceed, its jurisdiction. (Wilson v. Sacramento, 3 Cal. 386" court="Cal." date_filed="1853-10-15" href="https://app.midpage.ai/document/wilson-v-board-of-supervisors-5432619?utm_source=webapp" opinion_id="5432619">3 Cal. 386 ; Lynde v. Noble, 20 Johns. 80" court="N.Y. Sup. Ct." date_filed="1822-05-15" href="https://app.midpage.ai/document/lynde-v-noble-5474515?utm_source=webapp" opinion_id="5474515">20 John. 80 ; Noble v. Board of Pilots, 37 Barb. 126" court="N.Y. Sup. Ct." date_filed="1862-05-05" href="https://app.midpage.ai/document/people-ex-rel-noble-v-board-of-commissioners-of-pilots-5460362?utm_source=webapp" opinion_id="5460362">37 Barb. 126 ; Devlin v. Platt, 20 How. Pr. 167" court="None" date_filed="1861-01-15" href="https://app.midpage.ai/document/devlin-v-platt-6115478?utm_source=webapp" opinion_id="6115478">20 How. Pr. 167 ; Bac. Abridg. Title Certiorari.)

Tbe action is improperly entitled. Tbe petitioner has no right to use, nor necessity for using tbe name of tbe People, in suing out tbe writ. (People v. Pacheco, 29 Cal. 210" court="Cal." date_filed="1865-07-01" href="https://app.midpage.ai/document/people-ex-rel-livingston-v-pacheco-5435927?utm_source=webapp" opinion_id="5435927">29 Cal. 210.)

Judgment affirmed.