Berryman v. Perkins

McKinstry, J.: The fourth section of the Act of April 1st, 1876, “to provide for a supply of water for the University and for the Asylum for the Deaf, Dumb, and Blind,” (Stat. 1875-6, p. 316) authorizes the Controller to draw his warrants for the appraised value of property sought to be condemned—“ upon a judgment being-rendered for the condemnation of said springs and lands and right of way, and appraising the value thereof, and %ipon the fling in said proceeding of a written certificate of the Governor appraising such valuation.”

The statute requires, as conditions precedent to the taking of the land and water for public uses, not only that the land shall be appraised by the Superior Court, a jury, or commissioners, but also that such appraisal shall be approved by the Governor. Until he shall concur with the appraisal, the condemnation cannot be made operative. This necessarily involves an inquiry e.nd ascertainment of the actual value of the property, and the [485]employment of judgment and discretion on the part of the Governor. The power to determine whether the appraisal is correct is his, and we cannot deprive him of his discretion or adjudicate the value for him. In all matters resting in the sound discretion of the person to whom a duty is confided by law, mandamus will not lie to control the discretion or determine the decision which is to be made. (High’s Ex. Bern. 42; Moses on Mandamus, 82 ; Harpending v. Haight, 39 Cal. 208.)

It is not necessary to inquire whether the Governor might be compelled to make inquiry in respect to the value of the property—if it should be made to appear that he had refused to make such inquiry. The application here is, that he be compelled to issue his certificate approving the valuation.

Boss, J., and Thornton, J., concurred.

[By agreement between McKee, J., and Thornton, J., the latter acted for the former in this case.]