1. Itwill not be contended that the county is not a corporation. (See Angell & Ames on Corp. p. 19; 13 Wend. 325; 1 Cowen, 685; 7 Mass. 157; 13 Mass. 198; 10 Pick. 188; 18 Johns. 407; 2 Day, 259; 2 Kent's Com. 224, 225, 278.) But the counties of this State are expressly empowered to sue and be sued. (See Cal. Laws, p. 236, Sec. 7, Act of May 11, 1854, Chap. 122.)
The Court of Sessions, claiming to be the authorized agents of the county of San Francisco, and in the open exercise of an apparent agency, created by Act of the Legislature, passed April 11, 1850, made a contract with Edmund Laffan and others, for certain property to be used for the benefit of, and to enure to the county, for its public purposes; and in consideration of the conveyance of this property to this use, as said agents, executed certain obligations on behalf of the county and purporting to bind the county for the purchase-money.
After this contract was made, the board of supervisors was constituted, and with knowledge of the contract and of these proceedings did certain acts which we claim to be a ratification of the contract made by the Court of Sessions.
The question upon these facts which the Courtis called to solve is: Is the county responsible for the purchasemoney so agreed to be paid? And this question involves two others:
1. Could the board of supervisors ratify a contract made by the Court of Sessions?
2. If so, do these facts amount to a ratification?
In this case the Court of Sessions, claiming to be the agents of the county, made this contract in her name; but the Court of Sessions were not the agents of the county; the board of supervisors were the agents of the county, as much authorized to bind her by adopting a contract already made, as by making a new one for themselves; they did ratify this contract so made. Why is not this ratification equivalent to an original authority? Can it be doubted that if the board of supervisors, coming into office and finding this contract made by the Court of Sessions, and seeing that it was not binding, because not legally made, had then desired to make the contract, and get the benefit of it; can it be questioned that if the board of supervisors had passed an order for the purchase of this property, and confirmed this contract, that it would have been as valid as if the whole thing had been gone over again ab initito? If that be so, then the power of ratification is of course conceded, and this leaves open only the question of the mode of ratification.
The rules of law which determine the power of corporations to affirm contracts, and which fix the effect of particular acts of affirmation are well settled. By the modern decisions, the contracts of corporations rest upon the same footing as those of natural persons and are governed by the same rules and laws. (Bank of Columbia v. Patterson, 7 Cranch, 299; Flecker v. The Bank of the U. S., 8 Wheat. 338; Bank of the U.S. v. Dandridge , 12 Id. 64; Mott v. Hicks, 1 Cowen, 513; Chestnut Hill Co. v. Rutter, 4 Serg. & Rawle, 16; School District v. Wood , 13 Mass. 199; Union Bank v. Ridgley, 1 Har. & Cull. 324.) Or arising by implication of law, either from the acceptance of an executed consideration. (Bank of Columbia v. Patterson, 7 Cranch, 299; Kennedy v. Baltimore Ins. Co., 3 Har. & Johns. 367; Dunn v. St. Andrew's Church, 14 Johns. 118; Episcopal Church Society v. The Episcopal Church, 1 Pick. 372; Proprietors of Canal Bridge v. Gordon , 1 Id. 297.) Orfrom ratification of acts done on behalf of the corporation by parties assuming to act as agents, although without sufficient authority. (See Episcopal Society v. Episcopal Church, supra ; Randall v. Van Vechten, 19 Johns. 60.) Or from long silence and acquiescence. (Story on Agency, Sec. 255, and authorities there cited.) And that any one of these things will work a ratification, besides the authorities above cited. (See Angell & Ames on Corp. p. 132, 212, 213, 214, 215, 216, 217, 218, 239, 269, 298, 308; Story on Agency, 250, Secs. 251, 253, 256, 259; Burrill v. The Nahant Bank, 2 Metcalf, 167; Hayden v. The Inhabitants of Madison, 7 Greenl. 76; Abbott v. The District of Hermann, Id. 121; Trott v. Warren, 2 Fairfield, 234; Despatch Line of Packets v. The Bellamy Man. Co. & Trustees, 12 New Hamp. 206; Damon v. The Inhabitants of Granby, 2 Pick. 345; Thayer v. The City of Boston , 19 Id. 511; Bulkley v. The Derby Fishing Co. , 2 Conn. 252; Fuller v. Naugatuck Railroad Co. , 21 Id. 557; Danford v. Scoharie Turnpike Co., 12 Johns. 237; Randall v. Van Vechten et al. , 19 Id. 60; Brown v. Bell , 20 Id. 338; Gale v. Nixon & Nixon, 6 Cowen, 445; Moss v. Rossie Lead Mining Co., 5 Hill, 137; Mulford v. Trustees of Baptist Church, 3 Halsted, 182; Gordon v. Preston, 1 Watts, 385; Bank of Penn. v. Reed, 1 Watts & Serg. 101; Fox v. Northern Liberties, 3 Watts & Serg. 103; Alleghany City v. McClurkan, 14 Penn. 83.)
Having shown that the contract of corporations, unless restrained by law, rests upon the same footing as those of natural persons; and having shown that in this case there is no such restraint, it only remains to consider whether these facts, in case of an individual, would create a ratification of such contract. To state such a proposition is to answer it.
If the contract be affirmed, it takes effect in all its parts as a binding contract, good from its date; the agents of the county making these contracts in its name, are held to have been fully empowered to have made them; that contract was an obligation to pay money for land; the land was bound for the purchase money, and the assignment of the debt was an assignment of the security, pro tanto; for the lien which the vendor has adheres tothe note, bond, or bill, which is given for the purchase money, and passes with it wherever it goes, and that, too, in cases where the assignee has no knowledge of the existence of any lien.
In the case before us, the vendor has no longer any claim. He has no claim to have the land restored to him, nor has he any lien. He has been paid; paid by the assignee. How inequitable would it not be then to refuse to the assignee the same rights and remedies which the vendor had.
It is said that though these rules as to ratification apply to some corporations, they do not to others; and that is a political corporation to which they are not applicable. I deny the proposition. There is no such distinction. Wherever a corporation can contract or be sued, the same rules as to the making and as to the enforcement of contracts, apply.
The case of municipal corporations are numerous in the books. (See McClachen v. Alleghany City, 14 Penn. R, 83; Ross v. City of Madison, 1 Carter, 282; Mayor of Ludlow v. Chaulton, 6 Mees & Welby, 815, and note by American editor; also, Randall v. Van Vechten and others; also, Lee v. The Trustees of Flemingborough, 7 Dana, 29, 30; Fox v. Northern Liberties, 3 Watts & Serg. 103; Hayden v. Inhabitants of Madison, 7 Greenleaf, 76; Abbott v. District of Hermann, 7 Greenleaf, 121; Thayer v. The City of Boston, 19 Pick. 511.)
Finally, we beg to suggest to the Court that this claim is presented under circumstances of peculiar equity. There is no pretense of fraud in this contract; it was made when every man was well warranted in believing that the Court making it was possessed of the requisite authority; the Court making it so supposed, and were justified by the plain letter of the statute law in supposing that they had the power; the contracting party so supposed, and relied upon the law which proclaimed the authority of the officer and the safety of the purchaser; the county received the property mentioned in the contract; the officers of that county, duly accredited by law, issued their evidences of indebtedness; these, upon their face, were negotiable, and were put into the market for sale, and innocent purchasers invested their money, some of them their all, upon the faith of these public, authentic, accredited acts and securities, and in reliance upon thefaith of the county thus solemnly plighted by the contract of the Court, the Act of the Legislature, the acquiescence of the people, and the recognition of the supervisors.
JUDGES: The opinion of the Court was delivered by Mr. Chief Justice Murray. Mr. Justice Heydenfeldt concurred. Mr. Justice Terry dissented.
OPINION
MURRAY, Judge
In Burgoyne v. San Francisco (5 Cal. 9), we held that the Legislature could not confer other than judicial functions on the Courts of Sessions, and consequently that the attempted 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, and they are not legally bound 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 a 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.
DISSENT:
TERRY
Mr. Justice Terry. I dissent.