The herald., 1895-01-30
The PASADENA FRANCHISE
Board of Trustees Had a Right
to Grant It.
The Writ is Quashed and the Case
Dismissed.
Judge Shaw Optnes Thas the Trustees
. Did Not Exercise Jadicial
Functions.

liam Morgan ayainst the board OF trustees Vt
the city OF Pasadena. In the opinion filed by
the court, which is given in FULL owing to its
importance, the judge saga:
sThisis q proceeding to review, vacats and set
ssde certain sets OF the city council Of the city
OF Pasadena and of the presiden. thereof relat-
ing to the sale of franchise to construct and
operate a steam railroad along certain public
streets in that city. ..t
The defendants Lukers and Hamilton, in
their answer, join in the prayer OF the petition
or The other defendants have made their re-
turn to the writ on the merits CT the case, and
haye aluo interpose1 preliminary motion to
Quash the writ. a-
This question has bsen deliberately and ably
argued on both sides, but no argument has
been ms de upon the rner is of the case. and the
Gonclusioh l have reached on the motion to
auash will preclude any inquiry into the mer-
it,. The defendants object to the issuing OF the
writ on the following grounds:
Frst--Thst the petition does not show that
the Petitioner has beneficial Interest in the
proceedings eought to be reviewed.
second It the party to whom the fran
chise is proposed to be granted 10 q necessary
party to the proceeding, and is NOT made par
Third That the proceedings are not yet
completed and that review will not he had
OF an incomplete act
FoQrth.-That the acts of the council. which
are sought to be vacated are not Judicial acts.
Al Of these objections have been fu ly pre-
benteQ ana nave 0een cOuSl0oreo Dy tho court,
butt will be necessary to consider only the
last objection. Section 1864, o. G. P, provides
that q writ OF review may be granted when .
board exerciaing judicial functions has exceed
ed its jurisdiction. II, therefore, the acts
sought to be reviewed are not of judicial ma
ture the writ cannot be granted and the pro-
csedinga must he dismissed.
1t IL difficult to see how the act of o munich
pal corporation In granting the public property
which IT controls and has power 10 grant 10 any
more Judicial in character than fs q grant by \
controls. 1t is said that board ex .rcises judi
cial functions whenever 1t acts in such way
Is to determine or fleet the rights OF third par
ties. In this case 1t appears that the petitioner
Is citizen and taxpayer Of the city Of Pasa
dena, and ID the owner of certain resi- p operty
Of one OF the streets Included in the line of the
proposed franchise, and that the road, II built
8 proposed, would cover part of his land in the
street; and he AYERS that its operation would
prevent his free use and enjoyment thereof 1t
has been decided that the Interest of person
s e sitiSen ana taxpayer is not .uflcient to
review OF grant of such a franchise.
His interest must be some special and
citizens. Ache v. the Board, II Cal, 236. 1t
il claimed that the fact that he owns the land
and that the operation Of the road will inter
lation to the proceedings that the granting of
the franchise must ba considered Us a direct
Anterfsrsnce with, and adjudication of his
failure to distingui.h between the effect of
granting the franchise and the effect OF the
operation OF the road.
struct and operate the road 1t must acquire the
rights OF two distinct classes of persons. That
Is TO say, first. IT must acquire from the public
authorities the right to appropriate so much of
the public easements In the highway ss is NEG
essary TO the operation of the road; and sec
oSq y m so ,S scqnIs rom the
/. property, 80 far az the same is necessary, for
the purpose Of constructing and operating the
onlyto give to the RAILROAD com psuy the rights
: which the public own III that street as publi3
easement Before. the road can acquire
must exercise the right Of eminent do
main which is given to 1t by the law, and must
compensate the owners in advance for the
properly 1r rights taken and damaged The
CITY council, In granting franchise in tn ,
public streets, il presumed to intend to grant
only part OF the public easem s1ts-to do that
which Z has power to .do-And ia not to
be considered az attempting or intending to
deal with the privae property of any person.
franchise siong a street Tor = steam railrosd
which will be good conveyance asagatnst the
: public usf, but such grant will not affect nor
convey private rights, and Is not to be treated
~ intending to do SO. II the council makes .
Mistake as to the extent of the public easement
ono executes grant purporting to give what 1t
doe, not possess,, the grant Is to that xtent
void II. on the other hand. tho grantee claims
more than the council has power to give, and
80 intetfsres With private property. the private
There Is nothing in the franchise referred to
that In terms purporis to dispose of or include
the petitioners rights, estate or property, and
think II must bs construed as grant of the
public easement only-a grant which the law
requires shall be made before q railroad can use
the public streets Civil code, sectloo 40: First
Deertng codes, page 1872, section 862, ubdi-
vision 49,. This grant, there fore. does no. pur-
port 70 adiudicate or determine anyt6tn relat-
N TIE EosH
against this petitioner to build or operate itl
read alonR the street. There are no corfl c:ing
rights or claims of right to be determined in the
matter a. 4 preliminsry to the grant II 10 81
ply aquestion of policy. The council decides
whether, with view to this public welfare a
franchise should be granted. snd do no. deter.
mine any private rights at ALL
Primarily the power to graft auch franchises
feposes In the Legislature, and its exercise ID
may delegate the power, and in this instance
1t has delegated it to this municipal corpora
ton; but the power when exercised, is more
v The Board, 101 Cal. is, 10 not in conflict
with this view, bnt 10 in harmony with 1t. In
that case the board OF supervisors made an
order declaring q certain tt-eot to be an OPP en-
public street, and then proceeded to say that
the land situated within The deAned boundaries
OF the street .'ls hersby condemned appropria-
ted acquired, set apart and taken for public
use." 1t was held that the portion OF the order
declaring the street to be a public and open
that il sought to condemn for public use the
land embrsced thersin ii was q judicial oct, an
attempt to decide upon the rights OF private
The case Of Murray " The Bord, % Gal. 495
relating to tho grant Of ferry franchise. de.
cidesth8t such grant IL a Judicial act; but an
examination OF the law then in force shows
that n case fs not CONTRARY 10 the rules above
stated. The law then provided that no new
ferry should be allowed within p mile of one
aireAdy esta blished except in certain conttn.
gsnctes; aud TINT before givfuga new franchise
within that disteDca notice should be- served
on thaoyner Of the old ferry and a hearing
hn6Ir nh .fI7a 1r1,a
the, owner o. the. old franchise had
: conditional risht to the patronage Of q
frontsge. OF two Mills IN the stresm; and he
fore aypert Of this could be taken f.om him DC
was entitled TO, q hearing. Itwas to that ex-
tent ataklng OF his property for pubic use
He hada,right to have the facts judiciaiIy de.
term tined and such a deter mination was clear
there Is IN this case no Infringement on or dis
petition OF any vested private rights
THE con ciusion OF ecourt, therefore, IL that
the acts which' q e sought to be annulied are
not judicial In their character; that tina city
oSuncii was not exercising ju icial func lions;
aud that the motion to quash the writ must be
granted, -, s{
However much the parties may wish o ha We
the power of the conncii to d. the acts com.
planned of discussed and decided on the
merits. am clearly of the opinion til at the
court has no power TO do 10 by means of this
proceeding. 7
The motion to quash the writ will DO granted
and the case dismissed,
~ ~. ----7-- ----7- .
In FuliertDr,
Three scro block right in town, 0et 10 bearing
j soft sheiled wainute, plenty OF watcr, charming
location and living from those trees alone
f%t Ga a rnfta nd 1nta in, hju