Johnston v. Board of Supervisors of Glenn County
Before: Fleet, Garoutte, Harrison, Haynes, Searls, Vanclief
Synopsis
Appeal from a judgment of the Superior Court of Glenn County.
The facts are stated in the opinion.
Unless the viewers viewed the road in person, and estimated the damages themselves, and made their own report, the report was not such as would give the board of supervisors jurisdiction either to adopt or reject it, and in adopting such a report the board exceeded its jurisdiction. (Damrell v. Board of Supervisors, 40 Cal. 154.) Appellant should have been permitted at the hearing in lower court to correct the return, and show what evidence was introduced before the board in this respect as to the truth or falsity of the allegations contained in the report of viewers, and to show on what evidence the hoard acted in adopting the report. (People v. Board of Delegates, 14 Cal. 479; Lowe v. Alexander, 15 Cal. 300; Blair v. Hamilton, 32 Cal. 52; Fraser v. Freelon, 53 Cal. 644.) The appellant is clearly entitled to a writ of review, as the arbitrary action of the board of supervisors, without the exercise of an honest judgment, was a legal fraud, and amounted to a denial of due process of law. (Los Angeles County v. San Jose etc. Water Co., 96 Cal. 93; Spring Valley Water Works v. Schottler, 110 U. S. 354; Johnson v. Milwaukee, 40 Wis. 326; Merrill v. Humphrey, 24 Mich. 175; People v. Marx, 99 N. Y. 377; 52 Am. Rep. 34.) Where a return on a writ of review admits or is silent as to the facts stated in the writ or petition, or the papers on which the writ was granted, then such facts become important, and must be considered and have effect upon the hearing. (People v. Commissioners etc., 106 N. Y. 64.) Where the return to a writ of certiorari is silent in respect to the averments of the petition, those averments must be taken to be true. (People v. Commissioners etc., 106 N. Y. 676.)
A writ of review must be heard and determined upon the record alone, and evidence cannot be received to contradict or vary the return. (Central Pacific R. R. Co. v. Placer County, 34 Cal. 361; 46 Cal. 670; Roe v. Superior Court, 60 Cal. 93; In re Grove Street, 61 Cal. 453; Reynolds v. County Court, 47 Cal. 604; Fraser v. Freelon, 53 Cal. 644; Ex parte Sternes, 77 Cal. 163; 11 Am. St. Rep. 251; Hoffmann v. Superior Court, 79 Cal. 476; De Pedro-rena v. Superior Court, 80 Cal. 145; Sayers v. Superior Court, 84 Cal. 642; Farmers’ etc. Bank v. Board of Equalization, 97 Cal. 327.) The action of the board in laying out the road was purely legislative, and cannot be inquired into on a writ of review. ( Wulzen v. Board of Supervisors, 101 Cal. 15; 40 Am. St. Rep. 17.)
Opinion — Vanclief
Vanclief, C. On the petition of plaintiff the superior court of Glenn county issued a writ of review to the defendant board, commanding it to certify and return to that court all its proceedings in laying out and establishing a public road upon plaintiff’s land.
It is not disputed that the defendant obeyed the writ by returning certified copies of all matters of record, and all matters required to be recorded relating to the laying out and establishing of said road, showing, among other things, that the board duly appointed three persons — Stockwell, Knock, and Armstrong — as viewers of the proposed road, a majority of whom — Armstrong and Knock — reported to the board that they had viewed and surveyed the proposed road, and that they recommended that it be established and opened; The board approved the report of the viewers, and ordered the road “ to be opened as a public road according to law,” and declared the amount of damages awarded to each non-consenting landowner; and that the amount awarded to plaintiff for damages was ten hundred and ten dollars.
The court below found that, in the matter of laying out the road, the defendant had not, in any respect, exceeded its lawful jurisdiction, and thereupon dismissed the writ.
For the alleged purpose of showing that the report of the viewers was null and void the plaintiff on the trial offered as evidence the ex parte affidavit of W. H. Sale, clerk of the board, to the effect that, on the hearing of the report of the viewers by the board, he heard Armstrong, one of the signers of that report, testify under oath that he (Armstrong) did not “ survey or lay out, or help to view or survey or lay out said road as contained in the report of the viewers upon which said board of supervisors was acting.” This affidavit was objected to by defendant on several grounds; the court sustained the objection, and plaintiff excepted.
[393]Whether or not the court erred in excluding Sale’s affidavit is the only question properly presented for decision on this appeal. The bill of exceptions shows, however, that after Sale’s affidavit was ruled out plaintiff “ offered to prove” by additional affidavits, and by parol testimony that Armstrong did not view the road, and that the official written report of the viewers was false in that respect; but it does not appear that any witness or additional affidavit was produced or offered for this purpose, nor that there was any ruling by the court or exception by plaintiff relating to this offer.
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