People ex rel. Williams v. Horsley

The Coxjet. —The defendants were adjudged guilty of usurping a franchise.

1. The respondent insists that this court has no jurisdiction to review the judgment. But as the case involves the alleged right of defendants to possess the lands claimed to constitute a toll-road, as against all who shall not pay toll for passing over them, we think the judgment appealable. (Const, art. vi. § 4.)

2. Defendants claim to have acquired a franchise from the board of supervisors to collect tolls, and that the board was empowered to grant the franchise by the Act of April 1, 1878, entitled “an act to authorize the board of supervisors of Amador County to declare that portion of the Amador and Nevada wagon road which lies in Amador County a toll-road.” (Stats. 1877-78, p. 963.)

The act is in the words following :—

“Section 1. The board of supervisors of Amador County are hereby authorized to declare that portion of the Amador and ¡Nevada wagon road which lies in Amador County a toll-road, to keep the same in repair, to adopt and make rules governing the travel thereover, and to fix the rate of tolls thereon; provided, that the supervisors of said county shall have the right to declare said road a ‘free road’ at any time, and all improvements that may be or that have been made on said road shall revert for the benefit of the county of Amador, without cost to said county.

“Section 2. The tolls on said road shall not exceed the rates heretofore fixed by the board of supervisors of said county.

“Section 3. All acts and parts of acts in conflict herewith are hereby repealed.”

If it be conceded' that the act is constitutional, and that it has not been repealed (Stats, and Arndts, to the Codes, 1883, p. 20, § 21), it simply grants the franchise to the county to collect tolls on the road, and does not purport to authorize the county to grant any franchise to other persons.

Judgment affirmed.