Gauld v. Board of Supervisors of San Francisco

54 P. 272, 122 Cal. 18, 1898 Cal. LEXIS 519

Opinion

GAROUTTE, J.

The present litigation was inaugurated upon application for a writ of review to annul the proceedings of the board of supervisors of the city and county of San Francisco, looking toward the future granting of a franchise for the conduct of the telephone business. A demurrer was sustained to the petition of Gauld, and the ease is now before the court upon the sufficiency of the facts set forth in that petition to justify the issuance of the writ. The sufficiency of the petition is attacked from many points, and we need notice hut a single one. At the time this proceeding was inaugurated no franchise had been granted by the hoard of supervisors. The matter was m fieri. No final action of the hoard had been had, and for this reason certiorari was not the remedy. The office of this writ is in no sense that of a restraining order. It is not the purpose of the writ to restrain or prohibit, hut to annul. And until the proceedings of the inferior tribunal or board have culminated in a final order there is nothing to annul. Conceding, for present purposes only, that the writ of review would lie to annul an order of the hoard of supervisors granting a franchise, we have no such case here, for no franchise had been granted when the application was filed, and it necessarily follows the application for the writ is premature. There is an abundance of authority in this state supporting these views. (Wilson v. Board of Supervisors, 3 Cal. 386; People v. County Judge, 40 Cal. 480; Lamb v. Schottler, 54 Cal. 321; Sayers v. Superior Court, 84 Cal. 645.)

For the foregoing reasons the judgment is affirmed,

Harrison, J., and Van Fleet, J., concurred.