People ex rel. Dean v. Board of Supervisors of Contra Costa County

GAROUTTE, J. This is an application for a writ of certiorari to review the action of the board of supervisors of Contra Costa county in granting to one McNear a franchise to construct and maintain a wharf upon the southern shore of the straits of Carquinez. It is claimed by the petitioner that the action of the board in granting the franchise was wholly without the law.

[422]Section 1 of an act of the legislature, approved March 33, 1893, declares: “Every franchise or privilege to erect or lay telegraph or telephone wires, to construct or operate railroads along or upon any public street or highway, or to exercise any other privilege whatever hereafter proposed to be granted by the board of supervisors, common council, or other governing or legislature body of any county, city and county, city, town, or district within this state, shall be granted upon the conditions in this act provided, and not otherwise.” This language is broad in its terms. It is difficult to imagine language broader in significance and more explicit upon the subject with which the act is dealing. It includes franchises such as is here before us.

It iá now claimed upon the part of McHear that the board of supervisors in no degree, and to no extent, followed the law laid down in this act, and required to be pursued by the board in the granting of this franchise; but it is insisted that the board made a grant of the franchise under certain provisions of the Political Code, and, therefore, it is claimed that the act of the legislature passed in 1893 cannot furnish the test upon which to base a decision as to an exercise or nonexercise of judicial functions upon the part of the board in granting the franchise. This position cannot be maintained. This franchise should have been granted by the board of supervisors under the provisions of the act of 1893. If the granting of a franchise under the act by the board demands the exercise of judicial functions, then the granting of this franchise in disregard of the provisions of the act is an act performed in excess of judicial power. If a franchise may be granted lawfully only by the exercise of judicial power, then any other mode or manner of granting it would be an act of trespass upon that power, and outside of and beyond it.

It is contended that the action of the board of supervisors in granting the franchise under the act of 1893 in no sense calls for the exercise of judicial functions, and therefore certiorari is not the proper remedy. Let us pause a moment to examine this act. It will be observed that it is an act simply providing the course to be followed by the board in granting the franchise, and but two things are required to be done by that board: