JOHN KEYS v. THE BOARD OF SUPERVISORS OF MARIN COUNTY, 42 Cal. 252

By the Court, Wallace, J.: This appeal is taken from the judgment of the District Court of the County of Marin, rendered upon the return to a writ of certiorari, issued by the Judge of that Court upon the petition of Keys, and vacating certain proceedings of the Board, by which it had located and established a public road, commencing near the Town of Tómales. The order of the Board brought under review was entered upon its records on the 5th day of Kovember, 1868, and the application for the writ was made on the 7th day of October, 1870, nearly two years after the entry of the order.

We are of opinion that the District Courts, and the Judges of those Courts, have authority to issue the writ of certiorari (Pr. Act, Sec. 456, and Act of April 20th, 1863, concerning Courts of justice, etc., Sec. 25), and that the late amendments to the Constitution of the State do not affect the question. We think, too, that the proceedings of the Board, in establishing the road, involved the exercise of judicial functions in the sense of rendering those proceedings the subject of review, through the instrumentality of the writ of certiorari. (Pr.

Act, supra.) The objections urged by the appellant in each of these respects must, therefore, be overruled. But the granting or refusal of a writ of certiorari, for the purpose of reviewing such proceedings as those here in question, is to be determined by the exercise of a sound judicial discretion. Considerations of the public convenience are not to be overlooked in its determination. In The People ex rel. Church v.

The Supervisors of Allegany, 15 Wend. 206, the Court said: “ In the exercise of the superintending power of this Court over inferior jurisdictions, the writ of error is a writ of right, and issues on conforming to such regulations as have been prescribed by law.

But the writ of certiorari, especially in those cases where it is used for the purpose of reviewing the acts and decisions of the special jurisdictions which are created by statute, and do not proceed according to the course of the common law, such as Boards of Supervisors, Commissioners of Highways, and the like, does not issue ex debito justitice, but only on application to the Court and special cause shown.

The reason is, that these bodies exercise powers in which the people at large are concerned, and great public detriment or inconvenience might result from interfering with their proceedings.” So, too, in The People ex rel. Agnew and others v.

The Mayor, etc., of New York, 2 Hill, 12, which was a certiorari to review the proceedings of the corporation of the City of Hew York in constructing a public improvement, Bronson, J., in delivering the opinion of the Court, said: “The allowance of the writ rests in the sound discretion of the Court, and it has often been denied where the power to issue it was unquestionable, and where there was apparent error in the proceedings to be reviewed.” In the same case he further observed that it was “ important to notice that the ordinance for making the improvement was passed, the work done, and the assessment made and confirmed more than three years before the certiorari was sued out.

The time for bringing a writ of error from a final judgment is limited by law to two years; and I think a case can rarely happen when it would be proper to allow a certiorari after the lapse of a longer period.. This is a sufficient ground for quashing the writ, aside from other considerations tending to the same result.” It has been observed already that in the case at bar nearly two years were permitted to elapse after the entry of the order complained of before application was made for the writ.

An appeal to this Court from a final judgment of a District Court, is barred by the lapse of one year; and we are of opinion that, unless circumstances of an extraordinary character be shown to have intervened, the remedy through a writ of certiorari should be held to be barred by the lapse of a like period of time.

It appears by the record before us, too, that after the entry of the order complained of, by which this public road was established, or supposed to have been, considerable sums of the public moneys have been expended in the erection of bridges and otherwise rendering the road suitable for the use for which it was intended, doubtless in the belief that the proceedings were free from question as to their legal sufficiency.

Under such circumstances, and after such great delay, it is better that parties injured by the proceedings of the Board, or supposing themselves to be so, should be remitted to the ordinary remedies afforded them by the law, rather than allowed to seek redress through the instrumentality of this writ. The judgment of the Court below must, therefore, be reversed, and the cause remanded, with directions to dismiss the writ; and it is so ordered. Neither Mr. Justice Sprague nor Mr. Justice Temple participated in this decision.