[Mr. Fabens' points, though filed in Nos. 3036 and 3038, are here given, because those two cases are made to depend on this, and a separate report of them is unnecessary. Rep.]
I. The attempted redemption was, from beginning to end, the act of E. W. Burr, and not that of the corporation, known as the city and county of San Francisco.
Said " Resolution," under which heacted, appears upon its face to have been both introduced and passed at a meeting of the Board of Supervisors of said city and county, called by the said Burr for that special purpose, and although purporting to authorize an act which the said Burr likewise testifies " involved the expenditure of more than five hundred dollars," to wit: the sum of seven hundred and ninety-five dollars; yet it was not, after its introduction into the Board, published, as is required in all such cases by the sixty-eighth section of the charter. (Statutes of 1856, 164, sec. 68.)
Not only so, but the Board of Supervisors did not possess the power to authorize or direct the making of said redemption on behalf of the city and county of San Francisco, in the manner proved in this case, their power extending only to the authorizing of payment for the specific purposes and in the manner enumerated in the first fourteen subdivisions of the ninety-fifth section of the Consolidation Act, and to authorizing appropriation and application of any surplus moneys remaining in the treasury at the end of any fiscal year, and after all other lawful demands on the treasury had been satisfied as specified in the ninety-seventhsection of said act. Said Board is expressly prohibited from appropriating money in any other manner or for any other purposes than as specified. (Statutes 1856, 169, secs. 82, 84; 174, secs. 96, 97, 98; Statutes 1857, 118-220.)
Said resolution cannot be supported on the ground of its being an appropriation from the Urgent Necessity Fund, for no money is appropriated nor any fund specified, and the fourteenth subdivision of said ninety-fifth section, amended in 1857 so as to create said Fund, expressly limits appropriations therefrom to cases when the amount thereof in each particular case shall have been previously authorized and fixed by the Board of Supervisors in the lawful exercise of their powers.
Nor is it the appropriation of any surplus remaining in the treasury at the end of the fiscal year, for such surplus must be ascertained to exist, and then its appropriation must necessarily specify that it is such and its amount. (Stat. 1857, 218, 220; Stat. 1856, 174, secs. 96, 97, 98.)
Moreover, said resolution not appropriating any money in the treasury nor specifying any amount to be expended, but professedly authorizing said Burr to redeem any and all property ofsaid city and county heretofore sold under judgments against the city of San Francisco, without reference to the sum of money to be expended therein, and impliedly undertaking to render said city and county responsible for whatever sum might be so disbursed, was null and void as an attempt to contract a debt on behalf of said city and county, which is expressly prohibited by said Consolidation Act. (Stat. 1856, 174, secs. 97, 98.)
The money, likewise, delivered to the Sheriff, and by means of which said redemption was attempted, was the money of E. W. Burr, or of third parties, and not the money of said corporation known as the city and county of San Francisco, nor paid out of its treasury.
The resolution, therefore, conveying no authority to redeem said property, and the money with which such redemption was attempted not being that of said city and county of San Francisco, the act of E. W. Burr in depositing it, and a notice of redemption with said Sheriff, though holding at the time the office of President of the Board of Supervisors, was not the act of the city and county.
No question as to the title or amount of interest held by the city of San Francisco in the propertyin dispute, or its salability on execution, has been made in the Court below, and no such question can be raised in this Court. To do so would be virtually to try an action of ejectment upon this application for a Sheriff's deed; in other words, to decide upon the goodness of the relator's bargain in the purchase which he has made, and how much or how little he has acquired under it, when nothing of that kind has been put in issue in the Court below, and when he has neither been called upon nor had the opportunity nor right to introduce any evidence upon those points.
This Court cannot judicially know, nor could the Court below, whether the interest of the city of San Francisco, which has been purchased by the relator, was derived by it under the former pueblo under purchase by said city since its organization or incorporation, or under any of the several Acts of the Legislature which have released and confirmed property to said city, or in what other way. Nor can, nor could either Court know whether this interest is in water property or in upland property; for many lots in San Francisco called water lots are much the larger portion of them dry land; and in like manner, of thosecalled fifty and one hundred-vara lots, a great number are partially and not a few wholly covered with the waters of the bay of San Francisco.
The Court cannot know anything upon these subjects, except upon proof; and no proof has either been introduced, nor has there been an opportunity for any.
JUDGES: Baldwin, J. delivered the opinion of the Court. Field, C. J. concurring.
OPINION
BALDWIN, Judge
This was a proceeding, by mandamus, to compel the defendant, as Sheriff, to execute a deed to the relator for certain real estate sold under execution as the property of the city of San Francisco. The Court below granted the order, and from it this appeal is taken.
It is suggested that some of this property is upland lots, such as those the title of which was passed upon in Hart v. Burnett , 15 Cal. 530. If this be so, the city has no particular interest in disputing this deed so far as these lots are concerned; for the deed is, as to such property, a mere nullity, passing no title to the purchaser. But probably this is no answer to the application, if the Sheriff sold the property; since the value of the interest sold, or probably the leviable quality of the title, could not be inquired into in this proceeding, to which the city is not a party. The main question arises upon the effect of certain proceedings taken by Mr. Burr, ostensibly on behalf of the Board of Supervisors, of which he was President, to redeem this property from the Sheriff's sale.
By resolution of the Board of Supervisors, Burr, as President, was authorized to redeem this property; and the proof is that the attempted redemption was in virtue of this order. He did make a tender of money with this avowed purpose. But to this tender some objections were made, which we propose briefly to consider. It is said that this resolution gave no authority, because made at a special meeting of this Board called for that particular purpose; and that the resolution, after its introduction, was not published, with the ayes and noes, in some city daily newspaper, at least five days before final action by the Board upon the same, as required by the sixty-eighth section of the Consolidation Act (Stats. of 1856, 164.) But the resolution makes and involves no expenditure of money over five hundred dollars on the part of the city. If it did, possibly the Act charging this sum upon the city and county treasury, or upon the city and county, might be void; though it is not necessary so to decide. But not a word is said in this resolution in respect to a debt or having the effect to create a debt by the city and county, or to expend its money. On the contrary, the proof shows that the money tendered was furnished by other parties for this purpose. The Board did not undertake to contract a debt, or to expend the money of the city and county. By the seventy-fourth section of the Consolidation Act (Statutes of 1856, 165) it is provided, " that the Board of Supervisors shall have power to provide for the security, custody, and administration of all public property in said city and county; " and it would be strange indeed if any government were constituted for a municipality, which had not the power to protect from destruction the title to its own property, when such protection did not cost the Government anything. It would be helpless and impotent, if such a power were denied the authorities. Whenever this money was furnished--it is immaterial by whom, or what the motive or purpose of those providing it--the Board had a right to order an act like this in the same way as it had the power to make any general order; and if this order did not involve the expenditure of the city's money beyond the sum limited, the order was effectual. It was good as an authority, though if money of the city and county were expended, it might not be good as a charge on the municipality; but as no such charge was incurred, no legal objection exists to it.
It results, then, that Burr, as the President of the Board, for and in behalf of the city and county, had a right to make this redemption; and the only question remaining is, whether he did make it in due and legal form.
It is insisted that this money was the money of Burr, and not of the city; and therefore, the tender was of no force. It is enough to say, in reply to this objection, that this question alone concerns Burr and the city, and that third persons have no right to inquire from what source a redemptioner gets the money he proposes to use to effect a redemption which he is entitled to make.
It is next objected that the amount is not sufficient. It is claimed that some taxes were assessed and paid by the relator. But it does not appear that these taxes were just charges on the property, or that they were legally assessed to the city, or to the true owner, nor, in fact, does it appear they were assessed at all, except from the receipts of the Tax Collector offered in evidence. There is no finding of the facts of this case, as there should have been with the legal conclusions, but only a general conclusion stated by the Court that there was no legal redemption. But the facts seem to be set out, and, from these facts, we are unable to see any legal proof that there were any taxes assessed and paid upon this property, which were a charge on the lots before or at the time of the redemption.
Judgment reversed and cause remanded.