Finch v. Board of Supervisors

By the Court, Sawyer, J. We are asked upon certiorari to review the action of the Board of Supervisors of Tehama County in denying a renewal of a ferry license to Finch, and in granting a license to one Harvey. The only question of which we can take cognizance is, whether the Board in the action taken exceeded its jurisdiction. The proceedings in the two applications of Finch and Harvey were separate (Finch’s application having been first made and disposed of,) and they must be separately considered in their proper order. That the Board of Supervisors is a body with limited jurisdiction, aud that its jurisdiction must appear in the record of its proceedings is not doubted. Jurisdiction over the subject matter is expressly conferred upon the Board of Supervisors by the second section of the Act of 1855. (Laws 1855, p. 183.) Finch gave the statu [456] tory notice and filed his petition, in which he stated the granting of a license to him for the preceding year; that he had “ exercised said right by operating said ferry till the [then] present time,” and that , he was “ desirous of continuing to operate said ferry,” and thereupon asked a renewal of the license. On the first day of May, the day for which the application was noticed, Harvey, who had also given notice of an application for a license to run a ferry at the same point, appeared before the Board to contest the application of Finch, and filed a remonstrance, alleging, among other things, as objections to the renewal of the license, that Finch had abandoned the ferry in the preceding August, and that he had not kept said ferry according to law. The applicant, Finch, introduced testimony an.d rested. The contestant, Harvey, then introduced the testimony of several witnesses, and the applicant examined several others in rebuttal. After the testimony was closed the Board adjourned, holding the matter under advisement till the next day, when the application was denied. The applicant moved to strike out the objections of the contestant, Harvey, and opposed the introduction of all the testimony offered by him substantially on the ground that no citation had been issued to, or served on the applicant, and he had no notice; and, also, that the Board had no jurisdiction of that portion of the proceeding taken under the objections of the contestant. Contest concerning a ferry license. The applicant, and not the contestant, was the actor in this case. He was applying for a new license, to commence on the expiration of the term for which a license had already been granted—not defending against a proceeding to revoke a license instituted under the provisions of section twenty-four. If he had kept the ferry “ in accordance with law,” and “ in all respects complied with the terms and requisitions of this Act,” section seven gave him a preference in an application fora further license “over any party making original application.” But his application for a renewal was a new pro [457] ceeding, and it devolved upon him to show affirmatively all the facts necessary to entitle him to preference. On a proceeding against him to revoke the existing license, undoubtedly, the party seeking the revocation would be called upon to show that he had not kept his ferry as required by law, because he would be the attacking party. The presumptions would then be that the party resisting the proceeding had performed his duty till the contrary should be shown. But no such presumption exists in favor of a party who is seeking a further privilege on the ground that he has faithfully discharged his duty in respect to a privilege before granted. The party seeking the right must affirmatively show all the facts which are necessary to entitle him to the thing sought. In this case the petition of Finch does not even distinctly allege that he had kept his ferry “ in accordance with law,” but no point was made on this defect. He was the actor, however, and not the defendant. The law required him to give notice of his intended application. It is true no particular mode is pointed out by which objections shall be made, nor is it said who may object. But for what end is the notice required, unless it be that objections may be made by anybody who may be interested in defeating the application ? If a ferry is necessary for the convenience of the public, the public convenience and the convenience of every man who has occasion to use it require that it shall be kept in all respects in a manner to render it most subservient to such public convenience, and every man in the community is interested in having the franchise conferred upon a proper person. It is for this reason that a notice is required to be given of an intended application for a ferry license, that any one interested may have an opportunity to present any valid objection to the application, or to the applicant. The notice is to everybody, and calls upon any one who has a substantial objection to appear and make it known. The contestant, then, was one of the parties to be notified of the intended application ; and, in response to the notice, he appeared on the appointed day, [458] and put his objection in a specific form in writing upon the records of the Board. And the objections, if well grounded, were such as would and should defeat the application. We think that the Board of Supervisors not only had jurisdiction to consider the objections and the evidence introduced upon the issues raised by them, but that it was its duty to do so. It is true that in the final order, made after taking the matter under advisement, the Board do not specify the facts found from the testimony, but they rejected the application after a full and patient investigation of the issues presented. There was no arbitrary action. There was a petition and objections presenting material issues filed. Evidence was taken and the parties were heard in person and by counsel, and, after due deliberation, the Board were of the opinion that the applicant was not entitled to a renewal of the license, and it was therefore denied. This was a question which it had jurisdiction to determine. But, if we look into the record of the case, there is nothing, conceding the petition to be sufficient, after an issue was raised upon the petition by the objections filed, to show to this Court that the petitioner made out even aprima facie case, and the onus of proof, as we have seen, was on him. We think there was no excess of jurisdiction in denying the application of Finch. The application of Finch having been rejected, the Board of Supervisors proceeded to take up and dispose of the independent application of Harvey, and a counter application made by one Ward, who contested Harvey’s application. After having heard the testimony of the contesting parties, the Board awarded a license to Harvey. We are also called upon by Finch to review the action of the Board in this proceeding, on the ground that there was an excess of jurisdiction. Finch’s own application having been before rejected, it is not clear that he is in a position which entitles him to question the action of the Board in the proceeding on Harvey’s application. His claim of precedence had been adjudged against him, and there was nothing in the way of granting a license to any suitable original applicant. He did not file any [459] objections, or in any manner make himself a party to the application of Harvey. Ward contested it, but Finch did not. What right has he to complain ? But conceding his right to be heard, we find no excess of jurisdiction. This was not an application for the establishment of another ferry within a mile above or below a ferry already established and licensed under the provisions of section six. It was an application for license to run a ferry at a point where there had been a lawful ferry, after the license for such ferry should have expired—to run a ferry at a point where there was no ferry authorized to be run during the same term for which the application was made. It was not contemplated that there would be two ferries. This not being an application under section six, the notice required by that section was -not required. Still, to obviate all doubts, a notice of the intended application was actually served on Finch; but he did not see fit to appear and contest it. The proper petition was filed and due notice given. The Board thereby acquired jurisdiction of the subject matter, and, upon a full investigation of the contest between Harvey and Ward, found all the necessary facts (which were recited in the order) in favor of Harvey, and awarded him the license. We think the Board of Supervisors regularly pursued its authority in both cases. Its action is therefore affirmed.