Phelan v. City & County of San Franciso

Field, C. J. delivered the opinion of the Court—Cope, J. concurring. This case grows out of the alleged purchase by the Court of Sessions of San Francisco county, in 1850, of a tract of land situated in the city of San Francisco, as a site for the buildings of the county. The purchase was the subject of elaborate consideration by this Court in Burgoyne v. The Board of Supervisors of San Francisco, (5 Cal. 9) which was an action brought upon the warrants for the payment of the purchase money. It was there held that the Legislature was incompetent to confer upon the Court of Sessions other than judicial functions, and that the jurisdiction of that Court was restricted by the Constitution to criminal cases alone; and as a consequence, that the Act of 1850, so far as it authorized the Court to purchase real property for the use and benefit of the county, was unconstitutional and void. The judgment for the defendants upon the warrants was accordingly affirmed. In the present case the plaintiff seeks to avoid the ruling in that case by 'aheging a ratification of the purchase by the Board of Supervisors of the county, and with judgment for the amount claimed, asks a decree for the sale of the premises, and the application of .the proceeds to its payment. Final judgment having passed for the plaintiff upon the demurrer interposed to the complaint, the case was brought to this Court on appeal. The ratification was alleged in the complaint to have been made by the neglect of the Supervisors to reconvey the premises to the vendors or their assigns, or .to offer to reconvey them, and by their exercise of acts of owner.ship over and disposing of the property, or portions thereof. And .it was contended that the Supervisors were authorized to ratify the purchase, .and that the matters alleged amounted to a ratification. But this Court held, upon the authority of Burgoyne v. The Supervisors of San Francisco, that the original act of purchase was void; and further held, using in that particular hypothetical language, that if void, the ratification was equally void, and that if the origi[43]nal contract was not void, but only voidable, the acts relied upon did not amount to a ratification in fact; and the judgment was accordingly reversed. After the return of the case to the Court below the complaint was amended, the amendment consisting, so far as it is deemed to be material, in the greater particularity with which the ratification is set forth; and in the allegation that the ratification was made with knowledge of the previous contract and acts of the Court of Sessions. As amended, the complaint first alleges that the Supervisors, with full notice and knowledge of the contract and acts mentioned, “ assented to, affirmed and ratified ”■ the purchase, both by their acts and their dealings with the land, and by formal proceedings evidenced by their official records; and then proceeds to set forth such acts and proceedings. These consisted, according to the statement of the complaint, in the fact that the Supervisors did not reconvey or offer to reconvey the premises to the vendors, or to release any right or title acquired by the county under the deed from the vendors, but that they had retained possession and control of the premises, used the same and the buildings thereon for the purposes of the county, and had alienated a portion of the premises to the city of San Francisco for the use of the Fire Department, and had delivered possession of such portion. A demurrer interposed to the complaint thus amended was sustained, and the plaintiff waiving any right to further amend, final judgment was rendered for the defendant. It is from this judgment that the present appeal is taken.