Filed: July 1, 1856 (approximate) | Murray, Terry | Author: The opinion of the Court was delivered by Mr. Chief Justice Murray.
Summary
Appeal from the Superior Court of the City of San Francisco.
The plaintiff filed a bill in equity against the county of San Francisco, to enforce a specific performance of the following contract, as set forth in the bill: The Court of Sessions of San Francisco county, acting under the provisions of the Act of April 11th, 1850, purchased, June 20th, 1850, of Edmund Laffan, D. W. Coit and J. W. Morse, a certain lot of land on the west side of Brenham Place, in the city of San Francisco, for a county-building site, for which they agreed to pay the sum of $60,000, payable one-half July 1, 1851, and the balance July 1, 1852, with interest at the rate of three per cent, per month, payable semiannually. The deed for the lot was duly executed and recorded, and possession of the lot surrendered to the county, the Court of Sessions taking possession thereof, and receiving, for some time, the rents accruing therefrom. The Court of Sessions continued to transact the business of the county, and manage and control its affairs until the appointment of a board of supervisors for the county, under the Act of April 29, 1851, who thereafter assumed and continued to take charge of the county affairs. Laffan, Coit and Morse received from the Court of Sessions, upon the execution of the deed, evidences of the indebtedness of the county to them for the agreed price of the lot, and interest, which they presented to the county auditor, who issued to them therefor warrants on the county treasurer for the amount of principal, drawing interest as above stated. These warrants were presented to the county treasurer, but not paid—the treasurer endorsing them “not paid, for want of funds.” Of these the plaintiff is owner and holder of warrants for the sum of five thousand dollars, with interest due thereon to the amount of eight thousand dollars.
The plaintiff further alleges that the board of supervisors, since the first appointment of that body, has constantly retained possession of the land thus conveyed to the county, except so far as it had conveyed it to bona fide purchasers, without notice, and has never offered to re-convey the same to the grantors; and has thus by its acts recognized and ratified the sale of Laffan, Coit and Morse to the Court of Sessions, for the county; that the warrants thus issued were in the market, like other county warrants, and that when the plaintiff purchased his, he had no doubt of their validity, and purchased them upon the faith of the county credit; that they had never been paid, although duly presented and payment thereon demanded. He therefore prays that he may have judgment against the county for the amount called for by his warrants, and that the land, in payment of which the warrants were issued, may be sold, and the proceeds of the sale be appropriated to the payment of his judgment.
The defendant demurred to the complaint; the demurrer was overruled, and the defendant failing to answer, judgment and decree, as prayed for in the bill, were entered in favor of plaintiff. Defendant appealed.
Syllabus
The law conferring other than judicial functions upon the Courts of Sessions was unconstitutional and void; and any contract, not incident to their judicial functions, made by a Court of Sessions, under its provisions, is a nullity.
Such a contract being void, could not be made valid by subsequent ratification of the board of supervisors.
But, conceding that the purchase, by the Court of Sessions, of a lot of land for a Courthouse was not void, but only voidable, the subsequent action of the board of supervisors of the county, in taking care of and preserving the property, is not a ratification of the purchase which will bind the county.
To charge them, it should be shown that they acted with a full knowledge of the facts.
A deliberative body, like the board of supervisors, cannot be bound by acts in pais/ the best and only evidence of its intentions is to be drawn. from the record of its proceedings.
Moreover, such a deed was void for want of competent parties; as, at the time of the sale, there was no person, natural or artificial, in esse, capable of taking it.
Mr. Justice Heydenfeldt concurred. Mr. Justice Terry dissented.
In Burgoyne v. The Supervisors of San Francisco County, 5 Cal. R., we held that the Legislature could not confer other than judicial functions on the Courts of Sessions, and consequently that the ajitejppted purchase of land, in that case, was a nullity, and the county not liable upon the contract.
The plaintiffs in this case have resorted to a different remedy, and by a bill in equity seek to enforce a specific performance of the original contract, on the ground that it has since been ratified by “ the supervisors,” a body legally competent to act on the subject.
As evidence of a ratification, the plaintiff relies upon certain acts of the supervisors in the care, management and disposition of the property.
It is now contended that the original contract was not void, but only voidable, and therefore the subject of ratification. A distinction is instituted in the books, between that which is void and that which is voidable, the former of which is held to embrace such acts as are against good morals or public policy. Now although, in the abstract, there is nothing which would render a contract like the present obnoxious to either of these objections, still, it cannot be denied that it is competent for the law-making power to establish such rule as it may think proper on the subject; and the Constitution of this State having inhibited such contracts, by declaring that they shall not be made by judicial officers, they necessarily are void; because in contravention to the organic law of the land, established for wholesome and wise purposes.
To contend that a law is unconstitutional and not void, would involve a legal solecism and the paradox of an inferior agent of the Government setting aside the solemn mandates of the Constitution by an act of ratification.
If, then, the original act was void, the ratification was equally void. But conceding, however, that the original contract was not void, but only voidable, I do not think the acts relied on in this case amount to a ratification in fact.
The supervisors, in coming into office, found this property in possession of the county. It was their duty to take care of and preserve it, 541 and they are not legally hound by such acts. To charge them, it should be shown that they acted with a full knowledge of all the facts. Nay, more; we are satisfied that a deliberative body, like the board of supervisors, cannot be bound by acts in pais, but that the best and only evidence, of its acts and intentions is to be drawn from the record of its proceedings.
This conclusion renders it unnecessary to consider whether the acts of the supervisors can be considered as * new and independent purchase, because not properly evidenced.
In addition to what has already been said, it may be further remarked that, at the time of the sale, there was no person, natural or artificial, in esse, capable of taking the grant, and that the same was void, for want of competent parties.
Judgment reversed.
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Opinion Details
Court
California Supreme Court
Filed Date
July 1, 1856 (approximate)
Format
XML
Lead Author
The opinion of the Court was delivered by Mr. Chief Justice Murray.
Judges
Murray, Terry
Related Opinions
Opinion 1 (The opinion of the Court was delivered by Mr. Chief Justice Murray.)
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