Hill v. Bd. of Supervisors of Ventura Cty.

Temple, C. This appeal is from a judgment in a proceeding to review the action of the board of supervisors of the County of Ventura in laying out a public highway in that county.

The affidavit or petition upon which the writ was issued is not in the record, as the statute does not make that a part of the judgment roll. From the writ we learn that the alleged want of jurisdiction on the part of the board consisted solely in that the petition asking the board to lay out the road did not state the width of the proposed road," and was not accompanied by a bond, as required by section 2683 of the Political Code, and that no bond was approved as required by section 2683 of the Political Code.

The return recites that a petition had been filed, and sets out a bond, the latter not marked filed, but dated some ten days after the petition was filed, the appointment of viewers, and an order approving the report, and “ declar[241]ing the amount of damage awarded to each non-consenting land-owner, and that the amount awarded was ordered set apart from the proper road fund, as directed by the statute. As the plaintiff did not accept the award, the final order declaring the proposed road a public highway open to the public was never made.

In the judgment it is adjudged that all the proceedings subsequent to the appointment of viewers “ be and the same are hereby set aside and annulled”; and all the proceedings prior to and including the qualification of viewers “ be and the same are hereby affirmed.”

The alleged defects of jurisdiction, if sustained, would seem to render the entire proceeding void. The record discloses no special attack upon the proceedings subsequent to the appointment of viewers, or any attack upon any part of the proceedings, except as above stated. It is not easy, under the circumstances, to understand the judgment. But appellant is not aggrieved by that part which is in his favor, and the defendant has not appealed. The proceedings are left still pending with the report of the viewers made, but not acted upon. The writ did not and could not run to the action of the viewers. That could only have been set aside by taking from it its support by annulling the previous proceedings. Whether these proceedings are void is the point of the appeal.

It is well to remember that this is not a proceeding to condemn land. By this proceeding no one is or can be deprived of his property save by his consent. It is the exercise of a legislative power, delegated to the board, though the procedure requires also action of a quasi judicial character. The legislature might have conferred the power without the procedure, and without requiring notice or granting a hearing to property holders. It would then have been only a power to determine whether the land to be taken was needed for public uses, and the property owner, in the proceedings to condemn which would follow as a consequence of such determination, would have his opportunity to be heard. The