Thomas v. Armstrong

7 Cal. 286

• Court: California Supreme Court
• Decided: July 1, 1857
• Status: Published

Opinion

Murray, C. J.,

delivered the opinion of the Court—Burnett, J., concurring.

This was an application for a 'mandamus in the Court below to compel the supervisors to renew a ferry-license.

It appears from the record that the plaintiff was, and had been for a long time previous, running a ferry across the Yuba River; that he applied to the supervisors for a renewal of his license, and made the necessary proof that he had kept and run the said ferry according to law. The supervisors refused the application, on the ground that the franchise or privilege had been sold on execution against the petitioner, and that the purchaser, to whom they awarded the license therefor, was subrogated to the rights of the plaintiff.

In the case of Catherine Monroe v. L. W. Thomas, we held that a franchise was not the subject of levy and sale by execution. From this it follows that the sale of the plaintiff’s privilege was a nullity, and that the purchaser acquired no right thereby.

The twenty-seventh section of the act concerning public ferries, provides that every person to whom a license to keep a ferry shall have been granted, and who shall have kept the same in accordance with law, shall be entitled to have such license renewed, etc. Ye think that this section confers a right upon the party which cannot be arbitrarily divested or disregarded. If it were a case in which there was any doubt, and the supervisors had exercised their discretion, and had determined, on testimony, that the ferry had not been properly kept, there would be no authority to interfere with their determination; but when they act under a mistake of law, and award the license to a stranger, under the supposition that he has succeeded to the rights of the plaintiff, their orders may be reached and the error corrected by mandamus or any other proper proceeding.

We are satisfied that the correct remedy in this case is by mandamus. The party is entitled on his showing, the facts of which are not controverted, to a renewal of his license. The supervisors refuse to award it to him, and he has no other remedy within or knowledge for the assertion of his rights.

Judgment reversed, and cause remanded.