Robinson v. Bd. of Supervisors of Sacramento

Baldwin, J. delivered the opinion of the Court Cope, J. concurring.

This was a proceeding by the plaintiffs, tax-payers, by petition for certiorari to bring up certain proceedings of the Board of Supervisors of Sacramento county. These proceedings involved an ordinance, number ninety-six, the second and third sections of which are as follow; “ Section 2. To the Under Sheriff, one hundred and fifty dollars per month; to the County Clerk’s chief deputy in the District Court, one hundred and fifty dollars per month; to the County Clerk’s chief deputy in the Recorder’s oflice, one hundred and fifty dollars per month; to the County Clerk’s chief deputy in the general office, one hundred and twenty-five dollars per month. Sec. 3. Section one of Ordinance No. 78, of which this section is amendatory, is hereby amended so as to read as follows: Sec. 1. The office of Assistant Clerk of the Board of [209]Supervisors is hereby created; said Assistant to be appointed by the Clerk of the Board, and to receive a salary of one hundred and fifty dollars per month, payable one-half out of the Contingent Fund of the county and one-half out of the Contingent Fund of the city.”

The petitioners allege that the Supervisors have allowed the salaries to the Assistant Clerk of the Board and to the other Clerks mentioned; and that the Auditor will draw his warrants for them, and they will be paid if the Court does not interpose.

The only difficulty we have experienced hi the case is the technical question of the remedy selected by the relators. It is argued for the defendants that certiorari will not lie in such a case; that this writ is limited to a review of judicial actions and proceedings by the inferior tribunal, and that this ordinance is a legislative act and not of a judicial nature. We were strongly inclined, on the argument, to this view; but a further examination has led us to abandon it. When the term “judicial” is applied to the action of these Boards, it is not to be received in the sense usually applied to Courts of justice. Thus, Judge Bronson speaks, in Supervisors, etc. v. Briggs, (2 Denio, 26) of the settlement and allowance of an account by the Board as an adjudication of the matter by a proper tribunal, and therefore conclusive. (See also, 9 Wend. 508.) So in Gillespie v. Broas (23 Barb. 378). In People v. Mayor of New York, (5 Barb. 45) the Court say: “There can be no doubt that a, certiorari will lie to review the judicial acts of municipal corporations. That was admitted in the case of Mount Morris Square, (2 Hill, 14) cited by the defendant’s counsel, and is in conformity with the decisions of the late Supreme Court in several antecedent cases. (Elemendorf v. The Mayor of New York, 25 Wend. 693; Le Roy v. The same defendants, 20 John. 430.) The authorities are equally clear, that if the act complained of is simply ministerial, it cannot ordinarily be reviewed on certiorari. Such was the ordinance of the Common Council for the construction of the sewer in question. That was a simple exercise of their ministerial, or, if I may use the expression, legislative power. That, if authorized by their charter, which it clearly was, resolved itself into a question of expediency, solely for their consideration, and which cannot be reviewed here. But although the ordinance itself cannot, I think, be annulled by this Court, yet it is competent for us, in a proper case, to vacate the assessment of the Common Council in affirming those proceedings; as they then acted in a judicial capacity. That may be, although they do not constitute an ordinary judicial tri