In the year 1881 or 1882 the petitioner constructed the *Page 53 Walker Lake and Bodie toll road, situated in Esmeralda county, and continued from that date up to a recent period to operate the same, and collect tolls thereon.
The petitioner's franchise expired in 1891 or 1892 by limitation. (Section 454, Comp. Laws.) Upon the expiration of the franchise, the ownership of said road, with all the rights and privileges theretofore belonging to the same, vested in Esmeralda county (Section 459, Comp. Laws); and the county commissioners were authorized by said last section to declare said road a free highway, "provided, that in all eases falling within this section, the county commissioners of the proper county may give a lease at a nominal rental of any such road whereon tolls are now collected * * * to the proprietors * * * for a term not to exceed five years, giving to such lessees the right to collect tolls on such road." * * * (Section 459.)
On December 4, 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 collecting tolls thereon.
On the next day, December 5th, the board "ordered that a lease be, and the same is hereby, granted to the Southern Development Company for a period of five years, commencing January 1, 1900, * * * upon the following conditions: * * *." The conditions were to be performed by the petitioner.
On the 3d day of February, 1900, the petitioner presented to the board for execution a written lease of said road for the above-named term. Subsequently the board rejected and refused to execute the lease, and notified the petitioner thereof.
At a later date, on the 1st day of October; 1900, the board ordered that the action of the board of December 5, 1899, granting the Southern Development Company a lease of the Walker Lake and Bodie toll road for the period of five years, commencing January 1, 1900, "be, and the same is hereby, rescinded."
The contention of the petitioner is that the action of the board in making and entering the order of December 5, 1899, was in its nature judicial, and that the board exceeded its authority in rescinding said order by the order made on the *Page 54 1st day of October, 1900, and we are asked to set aside the latter order. Unless the board in making the order complained of was exercising judicial functions, the writ of certiorari will not lie. (Section 3531, Comp. Laws.) This rule is conceded by petitioner.
The order of December 5, 1899, was not a lease in contemplation of the parties, but a promise or agreement on the part of the board to lease the road on certain conditions. The petitioner did not then accept the conditions, or agree to perform them, so far as the record shows. It was so understood evidently by the petitioner that it was not a lease, or it would not have subsequently prepared and submitted to the board the written lease for execution. After said promise or agreement to lease was made, the board refused to execute the lease, and, as stated above, made the order vacating or rescinding the said former order made December 5, 1899.
We are of opinion that even if the board had no authority to make the order of said date, October 1, 1900, the order cannot be set aside in this proceeding, as in making the order the board did not exercise judicial functions; neither was the order which was vacated a judicial act. If the petitioner acquired any legal right under the order of December 5, 1899, it cannot enforce it by writ ofcertiorari. It the order made October 1, 1900, infringed any such right of petitioner, its remedy is not by writ of certiorari. The writ will not lie to compel the performance of the promise or agreement made by the board, or to set aside its order revoking said promise or agreement.
*Page 55The writ is dismissed.