Grogan v. County Court

CROCKETT, J. — This is a proceeding by certiorari to review the action of the county court in proceedings pending before it for the extension of Montgomery and Connecticut streets, in the city of San Francisco, under an act passed in 1864, authorizing the board of supervisors to extend streets: Stats. 1863-64, 347. At the time when the writ of certiorari issued from this court the proceedings in the county court [618]were in fieri; the court having proceeded no further than the appointment of commissioners to assess the damages and apportion them on the property to be benefited by the improvement. Bat the commissioners had not made their report, and it is claimed on behalf of the relator that the county court never acquired jurisdiction of the proceeding, and that it exceeded its jurisdiction in undertaking to appoint commissioners. It is this alleged excess of jurisdiction which is sought to be corrected in this proceeding.

In reply, the respondents claim that the writ of certiorari cannot properly issue in such a ease, because, as they allege, section 456 of the Practice Act defines the only cases in which the writ can issue, to wit, where the inferior court, board or officer has exceeded its or his jurisdiction, ‘ ‘ and there is no appeal, nor in the judgment of the court any plain, speedy and adequate remedy”; and it is insisted that the act under which the proceedings were instituted expressly provides for an appeal, in which the whole action of the county court, including the appointment of commissioners, can be reviewed and set aside, if in any respect erroneous or even void for want of jurisdiction. On the other hand, the counsel for relator claims that the constitution confers on this, court the power to issue writs of certiorari; that the necessary inference is that it was to be the writ as known at common law, and the legislature has not the power to restrict or trammel us in the exercise of a jurisdiction conferred by the constitution; that at common law the writ could issue to correct a usurpation of jurisdiction by inferior courts at any stage of the proceedings, and even though an appeal would lie from the final judgment, and that this court can issue the writ in like cases even though the statute attempted to prohibit it; but that in fact no appeal lies from the action of the court in the appointment of commissioners, but only for errors in the report and the proceedings subsequent' to the appointment of commissioners.

He further claims that the act of 1864, under which the proceedings were commenced, has been wholly repealed by a subsequent statute (Stats. 1867-68, 555), and that though there is a proviso in the repealing act which might preserve from its operation the proceeding to extend Montgomery street, the proviso does not include the proceeding to extend