People ex rel. Macpherson v. Board of Supervisors

By the Court,

Wallace, C. J.:

This is an application for a peremptory writ of mandamus requiring the Board “ to pass the necessary and proper resolutions and orders, and give the notices required by law, to grade Beale street from Folsom street to Bryant street, and Harrison street from Fremont street to Main street, to the newly established grade, of said Beale street and Harrison street, between said Folsom street and Bryant street, and said Fremont street and Main street, and to proceed and execute the prayer of the petition of the property owners praying for the grading of said streets, * * * presented * * * October 24th, 1870.”

It appears that in January, 1869, a petition signed by certain persons, owners of lots in San Francisco, was presented to the Board of Supervisors, praying that a change in the grade of Beale street from Folsom, street to Bryant street, and also a correspoiltling change in the grade of Harrison street, an intersecting street, be ordered by the Board. The petition was presented under the provisions of the Act of March 28th, 1868, p. 463, authorizing the Board to modify and change the grade of streets in San Francisco, and it purported to be signed by the owners of three fourths of the property to he affected by the proposed change. In response to this petition, the Board, on the 23d day of February following, adopted a resolution reciting the substance of the petition presented, declaring their intention to accede to its prayer, designating certain limits within which the lots of land would be benefited by the proposed change, and directing that the resolution be published for the period of thirty days in the official newspaper as a notice of such intention, under Section 2 of the statute. The publication was had accordingly—the first publication being made upon the 26th day of February, 1869—and within twenty days after such first publication, some nine persons, owners of lots of Iand5 filed their several duly verified petitions under subdivision two of Section 2 of the statute, setting forth the damages which they claimed they would respectively sustain by the proposed change of grade, and asking the appointment of Commissioners to assess such damages, etc.; of the filing of which petitions the County Clerk gave immediate notice to the President of the Board. The County Court thereupon proceeded to appoint three proper persons to be Commissioners to assess the benefits and damages growing out of the proposed change of grade. This was on the 16th of April, 1869, and on the 4th of October following the Commissioners filed their report, in which they awarded damages not only to the nine persons who had so petitioned therefor, but to divers other persons, owners of lots, who had filed no petitions in that behalf. One of the nine persons who had duly filed petitions claiming damages Vas the present petitioner, A. W. McPherson, and there was awarded ¿o him by the Commissioners in their report some thirty-three thousand dollars as damages which he would sustain by the change of grade proposed. On the filing of this report the County Clerk notified the Board of Supervisors of the fact that it had been so filed, and the Board thereafter, on the 11th of October, 1869, by its ordinance, duly passed for that purpose, confirmed the report, of the fact of which confirmation the Clerk of the Board in turn gave notice to the County Court, and the County Court thereupon by its order fixed the 1st day of November, 1869, as the day for hearing parties feeling aggrieved by reason of the proceedings.

On that day the “ Union Lumber Association,” who, as owners of certain premises, had been assessed by the report in some sixty-five thousand dollars for supposed benefits to their property by the proposed change of grade, made objections to the report upon several grounds; among others, upon the ground that damages had been allowed to non-petitioning owners; that the damages as awarded were exorbitant in amount, and that the assessment imposed upon the property of the association for supposed benefits was excessive, etc. These objections coming on to be heard before the County Court, on the 17th of February, 1870, that Court held that the report of the Commissioners was correct in undertaking to award damages to non-petitioning owners, and that the Court had no authority to hear evidence or entertain an inquiry as to alleged errors committed in the estimates made by the Commissioners respecting benefits to be received or damages to be sustained, but that the estimates contained in the confirmed report, in the absence of fraud, were conclusive, and all objections being overruled, judgment was thereupon rendered against the several lots of land in accordance with the report on file.

From this judgment of the County Court the Union Lumber Association brought an appeal here, and this Court considering ¿that, in so far as an award of damages had been made in favor of non-petitioning lot owners error had intervened, thereupon delivered its opinion to that "effect and reversed the judgment and remanded the cause “ with directions to render judgment, omitting the damages awarded to parties not filing petitions therefor as required by the statute, and for such further proceedings as may be necessary and not inconsistent with this opinion.” (In The Matter of Beale Street, 89 Cal. 495.)

At a subsequent day, the remittitur not having issued, the counsel upon either side of that cause presented to this Court a stipulation to the effect that the judgment theretofore entered in the above entitled cause should be changed and modified so as to read as follows: “The judgment of the County Court is reversed and the cause remanded with directions to render judgment in favor of the nine persons who filed petitions for damages, omitting the damages awarded to parties not filing petitions therefor as required by the statute, and to deduct from the several assessments for benefits their respective proportionate part of the sum of two hundred and fifteen thousand and eighty dollars and fifty-seven cents, that had been awarded to persons not-filing petitions for damages, and to apportion the amount of the several awards of said nine persons, together with the expenses of these proceedings, upon the lands and premises assessed for benefits, as reported by the Commissioners, and take such further proceedings to carry out the decision of this Court, not inconsistent with the opinion herein as may be necessary,” and the order of modification was accordingly entered here.

The cause having been remanded to the County Court, that Court, on the 29th day of August, 1870, entered an order reciting the several steps which had been theretofore taken, including the proceedings had in this Court upon appeal, and thereupon, without setting aside or recommitting the report of the Commissioners, or correcting the report itself in any wise, the County Court rendered a judgment by which it awarded damages to the nine petitioning owners only, and by its judgment reduced the assessment for benefits in a like proportion, and upon the basis which had been here indicated as correct. The amount awarded by this judgment to McPherson, the petitioner here, as damages, was not reduced below the amount the Commissioners had reported in his favor, and upon the entry of judgment in the County Court he applied for an order of sale to enforce the collection of the sum so awarded to him, but the County Court denied the application on the ground that no such process could be lawfully issued until the work of actually grading said streets had been done and the fact of its completion ascertained by the Court. The petitioner, McPherson, thereupon presented to the Board of Supervisors a written petition, subscribed by himself and other owners of property fronting on the work proposed to he done, in which petition they prayed the Board to cause the work of grading of these streets to be done, in accordance with the resolution and notice of February 23d, 1869, and the Board refusing to accede to the petition, he now makes application for the writ of mandamus to compel them to do so.

The judgment of this Court, reversing that of the County Court, and remanding the cause, with directions, placed the cause, upon its return to the County Court, in the same situation as to the further proceedings to be had thereafter, as.though that Court had itself finally sustained the objection of the Union- Lumber Association in respect to the award of damages to non-petitioning lot owners. Had that Court itself sustained the objection made in that behalf, it must have resulted that - any judgment thereafter to be rendered by it must have been one confining the award of damages to the nine petitioning owners, and reducing, of course; the assessment for benefits in a relative proportion.

The directions given here, that judgment should be rendered in favor of certain persons, and that a reduction of damages awarded, as well as of benefits assessed, should be made, were but the - announcements of results to be ultimately reached, and had no reference, of course, to the mere procedure to be pursued in the County Court for that purpose. The mandate of this Court directed that Court to take such further proceedings as might be necessary to carry into effect the decision rendered here. That Court was thus thrown back upon the statute to ascertain for itself what proceedings were necessary to be pursued for that purpose, for no question upon that subject had been made, or considered, or decided here. And it is clear that had the objection of the association as to the allowance of damages to the non-petitioners been sustained in the County Court, without the resort to an' appeal to this Court, the Commissioners must have been directed to modify their report, and to reduce the amounts therein set forth for damages to be sustained, and for benefits to be received as well. That objection being sustained in the County Court in the first instance, or here on appeal in the second, it unavoidably resulted that' an excess of damages awarded, aggregating more than two hundred thousand dollars in amount, would appear upon the face of the report itself. As, under the statute, the judgment to be rendered must be one rendered in conformity with the report on file, it is obvious that the ascertained errors of the report itself should be first eradicated before proceeding to final judgment thereon. The means to be availed of by the County Court for the correction of a report, ascertained to have been made upon an erroneous basis of law or fact, are not pointed out in the statute, nor is it important that they should be so pointed out. An order directing the particulars in which, or enunciating the principles upon which, a modification should be made is all that would be necessary in that respect. This is mere practice, and the particular procedure adopted, whatever it be, nothing more than form. But the duty to direct the modification of the report in some form is clear, and had it been observed in this instance another duty, and one which is important in its consequences, must have thereupon arisen—the duty of resubmitting the modified report for the confirmation or rejection of the Board of Supervisors. There can be no doubt that the intent of the statute is, that no report shall become the basis of the judgment of the County Court, in proceedings to change the grade of streets, except such report shall itself have first received the approval and confirmation of the Board. Unless this be the correct interpretation of the statute, the provisions of the ninth subdivision of the second section amount to a mere delusion and a snare. It is there enacted, that before the County Court shall be authorized to hear any objection to the proceedings by persons aggrieved, it must have been notified “ that the Board have confirmed the report.” Of course if the Board reject it, it must fail—the Board has thus an unqualified veto power over the proceedings in this respect, for these proceedings are in reality their own, and not the less so because carried on through the instrumentality of the County Court. When the report upon which judgment is to be rendered is filed there, the Board must have notice of the fact. The report is first for them to consider. They are to determine whether, in view of what is now' developed, the proposed change is still advisable; whether the results anticipated at the passage of the resolution, in the first instance, appear to have been attained, or to be indeed attainable; to inquire what proportion the aggregate damages to be suffered bear to the aggregate benefits to be accomplished; whether a reasonable measure of substantial justice among the property holders affected has been observed by the Commissioners; in fine, the projected measure is, so far as the public is concerned, now brought up before the Board for definitive disposal, by the light of all the reasons which influence public bodies in the discharge of public duties involving high considerations of policy and justice.

This approval of the Board, accorded to the report, constitutes the warrant and the authority of the Court to proceed further. Without that approval the proceedings must halt. The approved report is indispensable to the taking of further steps in the business. A mere report filed, one which has not been sanctioned by the Board, as affording the requisite authority to proceed, is as worthless as though the signatures of all the Commissioners had been omitted upon its face.

And though a report be filed, and even if, upon consideration, it be approved by the ordinance of the Board, yet if through any agency, or by any means subsequently occurring, in the judicial proceedings to follow, the report itself be modified in a material point, has it not thereby ceased to be the report approved by the Board? Or is it to be said that the approval of the original report filed in the case is to be applied by operation of law to any modified or substituted report by which the original report may be thereafter supplanted or superseded?

We think that these questions can be answered in but one way, and that is that the report upon which the judgment of the County Court is to he rendered must be, one which, as a whole and in all its parts and details, has received the approval and confirmation of the Board.

But the judgment of the County Court of August 29th, 1870, was not a judgment in accordance with the report on file, which had received the approval of the Board—that report, as we have said, must have been first amended before the judgment directed by the mandate of this Court could be properly entered—the amendment of the report, in the respects indicated here,, was one of the further proceedings directed by the judgment of this Court, and then, if the Board had by ordinance approved the report as so amended, and its approval had been notified to the County Court, the judgment of that Court might have been appropriately rendered thereon. Had the report, as thus amended, been resubmitted to the Board, new considerations of a grave character must have unavoidably been thereby presented for determination.

It would then have appeared, for the first time to the Board, by the amended report, that only nine persons were to receive their damages occasioned by the proposed change; that a large number of persons, having claims probably equally as meritorious as those nine, were about to lose them by reason of a mere misapprehension upon their part of the terms of the statute requiring them to present their petitions therefor; that the omission of these claims, amounting, as we have seen, to upwards of two hundred thousand dollars, would be a great hardship upon the claimants, from which the Board alone had the power and the discretion to relieve them, by withholding its approval from the amended report, and thus, by forcing proceedings de novo, have promoted substantial justice in that respect. But whatever view the Board might have entertained upon this, or any other matter appearing upon the proceedings at that point, the statute contemplated that the amended report should pass the ordeal of their judgment, and receive an approval or rejection at their hands, as the case might be, before it could become the subject of further action in the Courts.

The petition and exhibits, constituting the record upon this application for the writ of mandamus, failing, as they do, to show that final proceedings have yet been had in the County Court, pursuant to the mandate of this Court, it results that there was no absolute duty upon the part of the Board to accede to the petition of the applicant, demanding that it begin the work of grading the streets referred to.

The application for the writ must, therefore, be denied; and it is so ordered.