4 Cal.App.3d 931, 27061, People ex rel. State of Cal. v. Drinkhouse

Docket Nº:27061
Citation:4 Cal.App.3d 931, 84 Cal.Rptr. 773
Opinion Judge:[10] Devine
Party Name:People ex rel. State of Cal. v. Drinkhouse
Attorney:[7] William A. Howell, Donald G. Kendall, Cassman & Lachina and Andrew C. Lachina for Defendants and Appellants. [8] Thomas C. Lynch, Attorney General, E. G. Benard, Assistant Attorney General, Ralph B. Jordan, County Counsel, and Dennis N. Reid, Deputy County Counsel, for Plaintiffs and Responde...
Case Date:February 26, 1970
Court:California Court of Appeals

Page 931

4 Cal.App.3d 931

84 Cal.Rptr. 773

PEOPLE ex rel. STATE OF CALIFORNIA, and County of Kern, Plaintiffs and Respondents,


Fred DRINKHOUSE and Thomas D. Rutledge, Defendants and Appellants.

PEOPLE ex rel. STATE OF CALIFORNIA, Plaintiff and Respondent,


Walter C. HARBERT, Defendant and Appellant.

Civs. 27061, 27062.

California Court of Appeal, First District, Fourth Division

Feb. 26, 1970.

Hearing Denied April 22, 1970.

William A. Howell, Bakersfield, for Fred R. Drinkhouse.

Donald G. Kendall, Bakersfield, for Thomas Rutledge.

Cassman & Lachina, Los Angeles, for Walter C. Harbert.

Thomas C. Lynch, Atty. Gen., E. G. Benard, Asst. Atty. Gen., Sacramento, for People of the State.

Ralph B. Jordan, County Counsel, Dennis N. Reid, Deputy County Counsel, Bakersfield, for County of Kern.

Page 932

[Copyrighted Material Omitted]

Page 933

[Copyrighted Material Omitted]

Page 934

DEVINE, Presiding Justice.

Summary judgment quieting title of the State of California to certain lands was rendered against appellants Drinkhouse, Rutledge and Harbert, and against other persons who have not appealed or whose appeals have been dismissed. Drinkhouse, Rutledge and Harbert filed separate notices of appeal and have filed separate briefs.

The lands were purportedly conveyed by Leslie W. Weber, the tax collector of Kern County, under a tax sale on April 24, 1964, to appellants Drinkhouse and Rutledge. The complaint to quiet title alleges that on that date the tax collector was financially interested in the sale and that the sale was therefore void. The motion for summary judgment is supported by a declaration of D. N. Reid, deputy county counsel, which recites that Weber, the tax collector at the time of the sale, was charged by indictment with violation of section 1090 of the Government Code, that he was convicted thereof upon trial by jury (as well as of conspiracy with appellant Rutledge to violate the same section), and that the judgment of conviction has become final because appeal, although noticed, was abandoned; that he has served a jail sentence upon the conviction as one condition of a grant of probation; and that the transaction which was described in the indictment was the sale on April 24, 1964, which included the properties which are the subject of this lawsuit.

Section 1090 of the Government Code forbids county officers to be

Page 935

financially interested in any contract made by them in their official capacity, or to be purchasers at any sale made by them in such capacity. A sale is a contract within the conflict of interests statutes. (Salada Beach etc. Dist. v. Anderson, 50 Cal.App.2d 306, 309.) A contract in violation of section 1090 of the Government Code is void. As it was put in Kaufmann and Widiss, The California Conflict of Interest Laws, 36 So.Cal.L.Rev. 186, 199: 'Notwithstanding the language that such contracts 'may be avoided'--the courts have often held that a contract in which a public officer is interested is void, rather than voidable as the statute indicates.' The authors cite cases supporting their statement: People v. Deysher, 2 Cal.2d 141, 147; Berka v. Woodward, 125 Cal. 119, 127; Stockton Plumbing & Supply Co. v. Wheeler, 68 Cal.App. 592, 601. To these many others could be added, among them Stigall v. City of Taft, 58 Cal.2d 565, 569, 25 Cal.Rptr. 441. The principle, as stated in Berka v. Woodward, Supra, is that where a statute pronounces a penalty for an act, a contract founded on such act is void, although the statute does not pronounce it void nor expressly prohibit it (at p. 127). To the same effect are Severance v. Knight-Counihan Co., 29 Cal.2d 561, 568, 172 A.L.R. 1107, and a host of other authorities.

The Rutledge Appeal

Rutledge was convicted not only of conspiracy with Weber to violate section 1090 of the...

To continue reading