89 Cal.App. 47, Civ. 6218, Noble v. City of Palo Alto

Docket NºCiv. 6218.
Citation89 Cal.App. 47, 264 P. 529
Opinion JudgePARKER, Justice pro tem.
AttorneyNorman E. Malcolm, City Atty., of Palo Alto, for appellant. Louis Oneal and Maurice J. Rankin, both of San Jos
Judge PanelWe concur: TYLER, P. J.; KNIGHT, J.
Case DateFebruary 07, 1928
CourtCalifornia Court of Appeals

Page 47

89 Cal.App. 47

264 P. 529




Civ. 6218.

District Court of Appeals of California, First District, First Division

February 7, 1928

Appeal from Superior Court, Santa Clara County; J. R. Welch, Judge.

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[264 P. 530] Norman E. Malcolm, City Atty., of Palo Alto, for appellant.

Louis Oneal and Maurice J. Rankin, both of San José , for respondent.

PARKER, Justice pro tem.

This is an action brought to determine the ownership of certain personal property, to wit, cash in the sum of $308. Plaintiff and defendant, city of Palo Alto, by appropriate pleading set up their respective

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claims to the said amount, and after trial before the court judgment was rendered in favor of plaintiff. From this judgment defendant appeals.

The record discloses that at all times involved herein plaintiff was chief of police of the city of Palo Alto, and the money in dispute here is money derived from the sale of certain bicycles admitted to have been found on the streets and highways of Palo Alto, and in some few instances outside of the limits of said city. Many of these bicycles were found by plaintiff, and the others were found by other police officers and by them brought to the city hall of Palo Alto and there stored. It appears from the record here that there was a standing order in the police department of the city of Palo Alto directed to the members thereof that each officer should in his territory take up abandoned personal property of value and deliver the same to the city hall. In the period covered by this controversy a large number of bicycles were accumulated, and from time to time private sales were made, the amount of money realized being as heretofore stated. No accounting was made of these sales nor was notice thereof given. The custom was that as a purchaser appeared the sale was consummated and the transaction closed. All of these sales were made by the plaintiff chief of police and the moneys derived therefrom retained by him.

There was no ordinance or regulation of the city of Palo Alto or any board or commission of said city making it the duty of the plaintiff or any member of the police department to gather lost property, nor is there any such express direction in the general law of the state. Nor is there any ordinance or general law in terms directing the turning over of the funds in question to the public treasury.

The plaintiff chief of police contends here, as he did in the court below, that the money thus received belongs to him without the duty of accounting to the city, and urges that whatever may be the right or claim of the original owners of the lost property the city of Palo Alto is not concerned therewith, and the claim of the city to the funds in dispute is without right. In this the plaintiff was sustained by the court below. There are many principles discussed in the briefs on file. At the outset defendant attacks the form of action and the right of an individual to prosecute an action

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against the city. This we pass for the present. The ground upon which the claim of plaintiff was upheld seems to be that the property named, the bicycles, being lost property, belonged to the finder, subject to the provisions of the general law; that the finding and retention of the property was not within the actual or implied duties of the police department or the members thereof; and that the fact that in this case the finder happened to be a police officer does not in any manner abridge his right or claim to the property found, or place upon his possession any different status from that of any individual finder.

As an additional fact it may be here stated that the testimony discloses that the officers on patrol were ordered to bring all property found to the city hall, and make a record of the delivery, together with an identifying description. The chief of police testified further that one of the purposes in collecting the bicycles was to recover any that might have been stolen and concerning which the usual police bulletin had been circulated. It further appears that in some cases, after sale, of a bicycle, the original owner would appear and make claim, and in this event settlement would be made with him personally and a refund allowed the buyer; all of these negotiations being conducted through the chief of police personally and in his individual capacity.

From the foregoing sufficient appears to fully present the case-made. We do not feel that it requires any minute analysis of all of the points urged. It is our conclusion that the claim of plaintiff cannot be upheld, and that to establish the doctrine contended for by him would lead to a result in contravention of a sound public policy, and on this ground alone we deem it necessary to reverse the judgment of the court below.

Public policy is a vague expression, and few cases can arise in which its application may not be disputed. Mr. Story, in his work on Contracts (section 546), says:

" It has never been defined by the courts, but has been left loose and free of definition in the same manner as fraud."

By " public policy" is intended that principle of law which holds that no citizen can lawfully do that which has a tendency to be injurious to the public or against the public good, which may be termed the policy of the law. Likewise, it

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has been defined as:

" The principles under which freedom of contract or private dealing are restricted by law for the good of the community"

-the foregoing definitions being supported by respectable authority. 32 Cyc. 1251. Public policy means the public good. Anything [264 P. 531] which tends to undermine that sense of security for individual rights, whether of personal liberty or private property, which any citizen ought to feel, is against public policy. It is the evil tendency and not the...

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