114 Cal. 578, S. F. 442, Mullan v. State

Docket Nº:S. F. 442
Citation:114 Cal. 578, 46 P. 670
Opinion Judge:VAN FLEET, Judge
Party Name:JOHN MULLAN, Appellant, v. THE STATE OF CALIFORNIA, Respondent
Attorney:Reddy, Campbell & Metson, for Appellant. W. F. Fitzgerald, Attorney General, and W. H. Anderson, Assistant Attorney General, for Respondent.
Judge Panel:JUDGES: Van Fleet, J. Harrison, J., and Garoutte, J., concurred.
Case Date:October 24, 1896
Court:Supreme Court of California

Page 578

114 Cal. 578

46 P. 670

JOHN MULLAN, Appellant,



S. F. No. 442

Supreme Court of California

October 24, 1896

Page 579

Department One

Appeal from a judgment of the Superior Court of the City and County of San Francisco. Charles W. Slack, Judge.


Reddy, Campbell & Metson, for Appellant.

The court erred in sustaining the demurrer to the complaint, because the point that the contract of plaintiff with the state was void cannot be raised on demurrer. The allegation of fact that plaintiff was employed by the state and was its agent is admitted by the demurrer, and if plaintiff's appointment was not in fact made, or made by one who had no authority to make it, that is matter of evidence which cannot be taken advantage of by demurrer to the complaint. (Cook v. Pablo de la Guerra , 24 Cal. 237; Wise v. Williams , 72 Cal. 544; Harmon v. Page , 62 Cal. 448; Cameron v. San Francisco , 68 Cal. 391.) The plaintiff was appointed by the governor, and he had authority to make the contract. (Pol. Code, sec. 380, subd. 5.) But independent of this section of the code, plaintiff's appointment is valid, and the contract is binding on the state. (Const., art. IV, sec. 32; Miller v. Dunn , 72 Cal. 462; 1 Am. St. Rep. 67; Lycoming Fire Ins. Co. v. Wright , 60 Vt. 515; State Bank v. Knoop, 16 How. 375.) The case of Brooks v. Fischer , 79 Cal. 173, effectually disposes of the contention that the legislature can create no law except by a formal bill passed and approved by the executive. The state is now estopped from denying the validity of the contract made with plaintiff. (Davis v. Gray, 16 Wall. 203; Hall v. Wisconsin , 103 U.S. 5; State v. Milk , 11 F. 389; State Bank v. Knoop, supra .)

W. F. Fitzgerald, Attorney General, and W. H. Anderson, Assistant Attorney General, for Respondent.

The employment in question was made without express authority of law, and was and is null and void. (Const., art. IV, sec. 32.) The governor had no authority to make the appointment. (People v. Talmage , 6 Cal. 256; San Francisco etc. Co. v. Banbury , 106 Cal. 130.) The attempted ratification by joint resolution of the legislature did not render the employment valid. No law could be passed except by bill. (Const., art. IV, secs. 15, 16, 32; People v. Toal , 85 Cal. 333; Collier etc. Co. v. Henderson, 18 Colo. 259; Henderson v. Collier etc. Lithographing Co ., 2 Colo. App. 251.) The duties of the state's agents must be defined by statute, and the agent must show his authority to act as such. (San Francisco etc. Co. v. Banbury , 106 Cal. 129.) Therefore, the allegations of the complaint, that appellant rendered services "as the agent of the state of California," is a mere conclusion of law. The demurrer does not admit the truth of such an allegation; and the court can take judicial knowledge of the fact that the appellant acted without authority of law. (Branham v. Mayor , 24 Cal. 585; Code Civ. Proc., sec. 1875, subds. 2, 3; People v. Hagar , 52 Cal. 188; Whiting v. Townsend , 57 Cal. 515; Faekler v. Wright , 86 Cal. 210; Cole v. Segraves , 88 Cal. 105; De Baker v. Southern Cal. Ry. Co ., 106 Cal. 257; 46 Am. St. Rep. 237.) A transaction, imbued with the fatal infirmity of being in violation of law, cannot be purged of the infirmity by means of an estoppel. (Martin v. Zellerbach , 38 Cal. 300; 99 Am. Dec. 365.)

JUDGES: Van Fleet, J. Harrison, J., and Garoutte, J., concurred.



Page 580

[46 P. 671] Appeal from the judgment entered upon failure to amend after demurrer sustained to the complaint.

The complaint is in two counts. The first count alleges the following facts: That between the twelfth day of December, 1878, and the first day of May, 1891, the plaintiff rendered services to the defendant, at its special instance and request, as the agent of said state, in acting

Page 581

in its behalf in the matter of recovering certain moneys paid by the state to the United States under the provisions of a certain act of Congress, approved August 5, 1861, entitled, "An act to provide increased revenue from imports to pay interest upon the public debt, and for other purposes"; that the defendant promised to pay plaintiff therefor twenty per cent of all such moneys collected by him from the United States; that thereafter plaintiff collected from the United States, as such agent, and caused to be paid to said state, the sum of two hundred and sixteen...

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