Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1900-12-19

TIE MORNING APPEAL.
i. X. MIGHELS. LHssEr
WLDNESDAY---- DECEMBER ~
SJPREME COURT DECISION.
In tie Supreme Court Of the State of
Nevada (No. 1895,
The southern Development Company
o: Nevada. a corporation,
Petitioner
W. :. Douglas ct AL, constituting the
ard of County Com missioners III
i-.d for Esmeralda County. Nevada,
Respondent.
Orig inal Proceeding. Application for
Writ of Certiorar.
M. A. Murphy,
For Petitioner
G. $. Green, District Attorney,
For Respondent.
OPINION
By Bonnifield, CD.
In he wear 1881 or 1882 the petitioner !
const ucted the Walker Lake and Bodie !
toll r. nd, situated in Esmeralda County, |
and continued from that date up to a re-
cent period to operate the same and col !
lect tolls thereon. The petitioners ran
chise expired in lesl or 1852 by Limitation,
~1Sec. IA, Com. Laws. Upon the expira-
ton Of the franchise the ownership Of
said road with all the rights and privi-
leges heretofore belonging to the same
vested in Esmeralda County. tSec. 459
c. L. and the County Commissioners
were authorized by said last election to
declare said road free highway, ''pro-
rided. that in all cases falling within
this section, the County Commissioners
of the proper county may give lease at
= nominal rental of any such road where
on tolls are now collected to the
prOprietors for q term not to
exceed five years, giving to such lessees
the right to collect tells on such road e
- ;" (Sec. 459.)
On December 4th 1899, the petitioner
made application to said Board for a
lease of said toll road for the period Of
five years with the privilege Of collect
ing tolls thereon. On the next day. De-
cember 5th, the Board ordered that a
lease he and the same is hereby z, anted
10 the Southern Development Co. for a
period Of five years commencing JAN
uary ], 1900 i upon the following
conditions ~ The conditions
were to be performed by the petitioner.
On the 3ro day of February, 1900, the pc
titioner presented to the Board for exc
cution . written lease Of said road for the
above named term. Subsequently the
Board rejected and refused to execute
the lease and notified the petitioner there
OF. At later date, on the LIST day of Oc-
tOber, 1900, the Board ordered that, the
action Of the Beard Of December 5th, 1890
granting the Southern Development Co
q lease Of the Walker Lake and Bodie
toll road for the period Of fvs years com
meucing January lst, 1900, be and the sam
il hereby rescinded.''
Tho contention Of the petitioner il tina
the action Of the Board In making an,
entering the order Of December 5th. 1886
was il its nature judicial, and that th
Board exceeded its authority in rescind
ing said order by the order made on tn
lat day Of October, 1900, and We are aske'
to set aside the latter order.
- tn, 1t h. Ia
complained of was exercising judicis
functions the writ Of certiorari will not lii
(Sec 1851 c. L.) This rule 10 conceded b.
petitioner.
The order Of December 9Th. 1899, we
not lease in contem platiOn of tho pal
ties, but q promise or agreement on til
part Of the Board to lease the road o
certain conditions. Tho petitioner di
not then accept the conditions or agree
perform them so far ~ the record show
1t was 80 understood evidentally by til
petitioner that it was not lease or
would net have subsequently prepare
and submitted to the Board the write
lease for execution. After said promis
or agreement to lease was made, tt
Board refused to execute the lease, n
as stated above, made the order vacatir
or resembling the said former order mac
December 5th, 1899.
We are of opinion, that even if tt
Board had no authority to make the o
der of said date, October LIST, 1900, Il
order cannot be set aside in this procee
ing. as in making the order the Board d
not exercise judicial functions Meth
40. thu Nrdor which wac vacatoA a ind
cial act.
II the petitioner acquired any leg
right under the order of December 1T