Board of Fire Commissioners of the Lower Sweetwater Fire Protection District v. Board of Supervisors

BURCH, J. pro tem.* This is an appeal from an order of the Superior Court of San Diego County dismissing an application for a writ of certiorari to review the action of the board of supervisors of said county in granting a petition to withdraw an area from the Lower Sweetwater Fire Protection District after a hearing upon a petition by the majority of the residents and freeholders of the area seeking to be allowed to withdraw.

The question presented for consideration is whether the board of supervisors, after hearing evidence on the petition, had the power to grant the request. The superior court dismissed the application after sustaining a demurrer thereto without leave to amend.

The application alleges that there was evidence before the board that the area sought to be withdrawn was contiguous and closer to the Bonita-Sunnyside Fire Protection District and that the residents and freeholders were desirous of joining that district. The two districts involved are in unincorporated areas and adjoin each other. They were organized under the provisions of section 14001 et seq. of the Health and Safety Code.

The proceedings had before the board of supervisors are those provided by sections 14250-14256 of that code. Any portion of a district which will not be benefited by remaining within the district may be withdrawn from the district (§ 14250). A majority of the persons who are both freeholders and residents within the portions sought to be withdrawn from the district may file a petition with the board of supervisors, requesting the withdrawal of that portion from the district on the ground that the portion will not be benefited by remaining in the district (§ 14251). The board of supervisors shall fix a time for hearing the petition and for hearing protests to the continuance of the remaining territory as a district (§14252). Any person interested may appear at the hearing and object to the withdrawal, or may object to the continuance of the remaining territory as a district (§14255). The board of supervisors shall consider and pass [277]upon all objections, and if it finds that the portion of the district sought to be withdrawn will not be benefited by remaining within the district, and will not serve as a fire hazard to the remaining portion of the district, and that the territory not sought to be withdrawn will be benefited by continuing as a district, then it shall grant the petition (§14256).

The object implicit in these sections is to keep fire protection abreast of changing conditions in unincorporated areas, without violating the demands of justice to the residents and freeholders of an established district. The demands of changed conditions impart adjustments here as elsewhere. The board of supervisors is empowered as the tribunal to conduct the hearing, with notice to interested parties, and decide. The jurisdiction granted it is judicial. (Birch v. Board of Supervisors, 191 Cal. 235 [215 P. 903].) Its powers are statutory and its proceedings are in invitum and the board must act in the manner provided by statute, otherwise their action is void. {Birch v. Board of Supervisors, supra. ) While the writ of certiorari is discretionary it will be granted where the board has exceeded its powers. (Birch v. Board of Supervisors, supra.)