Kimball v. Board of Supervisors of Alameda County

This is an action to enjoin the Board of Supervisors from opening a road in Alameda County; and there are annexed to the complaint copies of all the proceedings had before the Board. A demurrer to the complaint was sustained, and a final judgment entered for the defendants, from which the plaintiff appeals.

*23The first point made by the appellant is, that one of the parties over whose land the proposed road was to pass was not served with a notice of the intended application, as required by the statute, and it is contended that the Board acquired no jurisdiction of the proceeding, unless all the land owners were served. But a conclusive answer to this point is, that the omitted party appeared to the proceeding, and raised no objection for want of notice. His appearance dispensed with the necessity for the notice, and all the other parties in interest were duly served.

The next point made by the appellant is, that the statute which authorizes the Board of Supervisors to assess the damages on the opening of a highway violates that clause of the Constitution which provides that no person shall be deprived of his property without due process of law; and it it; claimed that a judgment of the Board of Supervisors is not due process of law in the sense of the Constitution. But as early as the case of the People v. Board of Supervisors of El Dorado, 8 Cal. 58, it was decided that the Boards of Supervisors in this State may exercise judicial powers in certain classes of cases; and this ruling has been steadily adhered to ever since. In Lincoln v. Colusa County, 28 Cal. 662, the action was against the.county for damages alleged to have been sustained by the plaintiff by reason of the opening across his land of a public highway by the Board of Supervisors; and this Court says: “under the Constitution private property cannot be taken for public use except upon compensation made. It is competent for the Legislature to fix the mode of condemnation, the method by which the damages to individuals shall be determined and the proceedings for their recovery. ” This power has been freely exercised in relation to lands taken for public highways under the Act, of 1861.

It has been repeatedly decided that Boards of Supervisors have jurisdiction over roads, ferries, and bridges within their *24respective counties. (Waugh v. Chauncey, 13 Cal. 11; People v. Berchan, 12 id. 50; Miller v. Sacramento, 25 id. 93; Sherman v. Buick, 32 id. 241; Creanor v. Nelson, 23 id. 464.)

We consider it as no longer an open question in this State whether Boards of Supervisors may exercise jurisdiction in opening public highways across public lands.

The only remaining point is whether the Act under which these proceedings were had was operative and in force when they were commenced. Section fifteen of the Act of March 24th, 1862 (Stats. 1862, p. 81), was not repealed, but only amended, by the Act of March 31st, 1866 (Stats. 1865-6, p. 566), and was further amended by the Act of March 27th, 1868 (Stats. 1867-8, p. 374).

Judgment affirmed.

Mr. Chief Justice Wallace did not express an opinion.