18 Cal. 590, Grogan v. San Francisco

Citation:18 Cal. 590
Opinion Judge:FIELD, Judge
Party Name:GROGAN et al. v. THE CITY OF SAN FRANCISCO [*]
Attorney:J. B. Felton, for Respondent. Heydenfeldt, for Appellant, in reply.
Judge Panel:JUDGES: Field, C. J. delivered the opinion of the Court. Cope, J. concurring.
Case Date:July 01, 1861
Court:Supreme Court of California
 
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Page 590

18 Cal. 590

GROGAN et al.

v.

THE CITY OF SAN FRANCISCO [*]

Supreme Court of California

July, 1861

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Appeal from the Twelfth District.

This is an action to recover the sum of $ 19,552 74, with interest, for moneys paid by the plaintiffs to the defendant upon bids made by them for lots situated in San Francisco, which were put up for sale by the Mayor and Land Committee of the city under a pretended ordinance of the Common Council, The complaint contains two counts--one setting forth the particulars of the alleged illegal sale, and the other for moneys had and received by the defendant for the use of the plaintiffs. Two answers were filed to the complaint--one in June, 1855, and the other in September, 1859. In the first answer, the defendant, to the allegations of the first count of the complaint, avers, in substance, that the alleged sale was never made by virtue of any ordinance or authority of the city of San Francisco; that the Mayor and Land Committee of the city never had any authority to sell the lots, nor to receive moneys for or on behalf of the city; that the plaintiffs never paid the moneys mentioned in the complaint, or any part of them, to the city, and that the city never accepted nor received the same, or any part of them, from the plaintiffs. To the allegations of the second count of the complaint, the first answer, in substance, denies the receipt of any moneys by the city for the use of the plaintiffs. The first answer also sets up that the city of San Francisco possessed no powers except such as were conferred by the charter, and was not authorized to become a depositary of moneys, or in any other way to receive moneys for the use of the plaintiffs, or to contract any indebtedness or incur any liability in the mode set out in the complaint; and that at the time the indebtedness to the plaintiffs is alleged to have accrued, and long prior thereto, the city was indebted in a sum exceeding $ 50,000, over and above its annual revenues, exclusive of indebtedness which accrued prior to April 15th, 1851, and in consequence had no power, under the prohibitions of the charter, to create, or to permit to accrue, the indebtedness alleged in the complaint. The second answer is a general denial of the allegations of the complaint.

By stipulation between the parties, an order was entered referring the case to a referee to try all the issues, whether of law or fact, and to report a judgment thereon to the Court.

In his report, the referee finds the following facts:

First--That the defendant is a body politic and corporate, incorporated under the laws of the State of California.

Second--That on the twenty-sixth day of December, 1853, the defendant claimed the several pieces or parcels of land described in the complaint as its property, and on that day the same were offered for sale by defendant, at public auction, by virtue of a supposed or pretended ordinance, purporting to be an ordinance of the city; that the said pieces or parcels of land were conveyed to defendant by the State of California, by an act entitled " An Act to provide for the disposition of certain property of the State of California," passed March 26th, 1851.

Third--That said supposed or pretended ordinance was published by the authorized agents of the defendant as being an ordinance legally passed by the Common Council of the city, and was signed and approved by C. K. Garrison, then Mayor, on the fifth of December, 1853.

Fourth--That by the ordinance the Mayor and Joint Committee on Land Claims of said city were in terms authorized to sell at public auction, after not less than ten days' advertisement in the daily newspapers of the city, to the highest bidder, at such time and place as they should think proper, the lots described in the complaint.

Fifth--That the agents of the defendant, on the twenty-sixth day of December, 1853, in pursuance of the terms of the ordinance, offered the lots for sale at public auction, and the plaintiffs attended such auction sale, and bid off four of the lots, embraced and included within the land described in the complaint, and in the ordinance, which lots were known at the sale, and are now known, as lots numbers forty-five, forty-six, forty-seven, and forty-eight, respectively; and at the sale the plaintiffs bid the sum of $ 15,000 for lot number forty-five, the sum of $ 14,500 for lot number forty-six, the sum of $ 9,450 for lot number forty-seven, and the sum of $ 9,450 for lot forty-eight, which bids amounted in the aggregate to the sum of $ 48,400, and the several bids were then accepted by the defendant, and the four lots struck off to the plaintiffs.

Sixth--That in consideration of the bids, and the acceptance of the same by the defendant, and thereby the supposed sale of the lots, the plaintiffs paid to the defendant, on account of the bids, the sum of $ 19,551 74, in installments, as follows: $ 12,680 on the thirtieth of December, 1853; $ 5,637 74 on the twenty-seventh of February, 1854; and the sum of $ 1,234 on the second of May, 1854.

Seventh--That no part of the said sum of $ 19,551 74 has been paid back to the plaintiffs by the defendant.

Eighth--That said ordinance was passed by the Board of Assistant Aldermen of the city, by a vote of four in favor to three against it; that at the time of its passage there was a vacancy in the Board of Assistant Aldermen, one member thereof having previously resigned, and no person had been elected or qualified in his stead.

Ninth--That shortly after the twenty-sixth of December, 1853, the plaintiffs went into the possession of lots so, as aforesaid, struck off to them, and they, or one of them, have ever since continued in the possession of the same.

Tenth--That the lots have, from time to time, subsequent to the first of January, 1855, been assessed for taxes, and the taxes have been paid by the plaintiffs or by one of them.

Eleventh.--That on the fifth of April, 1855, one Kelsey Hazen commenced an action against the defendant upon an implied contract for the recovery of money, payable in this State, for the sum of $ 7,000; and afterwards, on or about the thirteenth of April, 1855, an attachment was issued in the action, commanding the Sheriff of the county to attach sufficient of the defendant's property to satisfy the sum of $ 7,000, and on the same day the Sheriff, by virtue of the attachment, seized certain real estate belonging to the defendant, to wit: the several pieces and parcels of land described in the complaint, and in said ordinance, including the four lots struck off to the plaintiffs; and afterwards, on or about the twelfth day of August, 1855, the action was removed from the Fourth District to the Twelfth District Court, and such proceedings were had that judgment was rendered and docketed therein, in the county of San Francisco, in favor of said Kelsey Hazen and against the defendant, on the fifteenth of December, 1860, for the sum of $ 11,870 83 damages, and one hundred and twenty-one dollars and seventy-five cents costs and disbursements.

Twelfth--That prior to the first of January, 1856, twenty-six attachments were issued in twenty-six actions now or lately pending in the Twelfth District Court, and two attachments in two actions now or lately pending in the Fourth District Court, which actions were severally commenced upon implied contracts for the direct payment of money, payable in this State, and the several attachments were issued to the Sheriff of the county, and each commanded him to attach sufficient of the defendant's property to satisfy the sums in each of said attachments mentioned, amounting in the aggregate to $ 451,442 50, and the Sheriff, by virtue of the attachments prior to the day and year last aforesaid, seized all the real estate described in the complaint in this action, including the four lots struck off to the plaintiffs, which several actions, and the amounts mentioned in each of the attachments, are set forth and described in an exhibit annexed to the report.

Thirteenth--That on the seventh of April, 1855, an attachment was issued in this action in favor of the plaintiffs herein and against the defendant, to the Sheriff of the county of San Francisco, commanding him to attach sufficient of the defendant's property to satisfy the sum of $ 19,552 74, and the Sheriff, under and by virtue of the attachment, seized all of the real estate described in the complaint, and in the ordinance.

Fourteenth--That prior to the twenty-sixth of December, 1853, the Common Council of the city, by an ordinance legally passed and approved, set apart and dedicated to public use, as a free and public dock for ships and other vessels, the pieces and parcels of land described in the complaint, which ordinance has not been repealed.

Fifteenth--That the plaintiff, Alexander B. Grogan, by deed dated March 3d, 1860, for a valuable consideration, conveyed to one J. Mora Moss his interest in and to the four lots, which deed was afterwards duly recorded.

Sixteenth--That on the first of March, 1859, the plaintiffs paid to William H. Tillinghast, then Treasurer of the city and county of San Francisco, the residue of the bids made by them and accepted by the defendant, not theretofore paid, and the said William H. Tillinghast on the first of March...

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