Burkett v. Bd. of Supervisors of San Joaquin Cty.

Where the Board of Supervisors of San Joaquin, under the Act of 1860, (Stat, 1860, 317) authorizing them to levy a special tax for the construction and repair of seven public highways leading from the city of Stockton, the fourth of which was “ A road running from the limits of Stockton, via Hamilton’s Ranch, known as the Sonora Road,” levied and collected the tax, and then, July 10th, 1860, passed an order locating the route of this fourth road, along which plaintiffs lived, and afterwards assessed the damages to the owners of land, etc.; but, before they had obtained the right of way for this road, passed another order in March, 1861, annulling the first order and changing the location of the road, which rendered the lands of plaintiffs of less value: Held. that the first order laying out the road was unexecuted; that no rights of plaintiffs had vested, and that the Board had power to make the second order; that the first order was not in the nature of a power exercised and exhausted, but was at most a proposed mode of executing a power, which could be changed at any time before rights had vested under it.

Held, further, that the remedy adopted by plaintiffs—a bill in equity to have declared void the second order of the Board, and for injunction restraining the Road Commissioners from paying toward the second road any of the money collected on the tax—is objectionable.