98 Cal. 427, 19092, Capron v. Hitchcock

Docket Nº:19092
Citation:98 Cal. 427, 33 P. 431
Opinion Judge:VANCLIEF, Judge
Party Name:JOHN G. CAPRON, Respondent, v. GEORGE N. HITCHCOCK et al., Appellants
Attorney:William Darby, and Oscar A. Trippett, for Appellants. D. C. Collier, Haines & Ward, and Collier & Haines, for Respondent.
Judge Panel:JUDGES: Vanclief, C. Searls, C., and Haynes, C., concurred. McFarland, J., De Haven, J., Fitzgerald, J.
Case Date:June 03, 1893
Court:Supreme Court of California
 
FREE EXCERPT

Page 427

98 Cal. 427

33 P. 431

JOHN G. CAPRON, Respondent,

v.

GEORGE N. HITCHCOCK et al., Appellants

No. 19092

Supreme Court of California

June 3, 1893

Page 428

Department Two

Appeal from a judgment of the Superior Court of the County of San Diego, and from an order denying a new trial.

COUNSEL:

William Darby, and Oscar A. Trippett, for Appellants.

As plaintiff was an officer of the city, he was prohibited from being interested in any contract with the city, and therefore the contract under which he claims to have done the work was null and void. (Act March 13, 1883, sec. 628, Stats. 1883, p. 232; Civ. Code, sec. 1667; Gardner v. Tatum , 81 Cal. 370; Swanger v. Mayberry , 59 Cal. 91; Ladda v. Hawley , 57 Cal. 51; Fowler v. Scully, 13 Am. Rep. 699; Collins v. Blantern, 1Smith's Lead. Cas., 9th Am. ed., 668; 5 Lawson's Rights, Remedies, and Practice, secs. 2392, 2393; 9 Am. & Eng. Encycl. of Law, 880-883, 909, 910.) A contract between the contractor and the superintendent of streets is jurisdictional, and if illegal, as we contend, nothing of any validity can grow out of it. The alleged contract was void, and that which was void does not become valid by reason of a failure to appeal to the common council. (Dougherty v. Hitchcock , 35 Cal. 512; Burke v. Turney , 54 Cal. 487; Manning v. Den , 90 Cal. 610; Freeman on Judgments, sec. 523.) Where statutes declare an act or contract to be void, courts have no discretion in construing the statute or the intentions of the parties; the contract is void by force of the act in such case, whether the contract prohibited be illegal or not, and cannot be enforced by an innocent party. (Bayley v. Taber , 5 Mass. 286; Vallett v. Parker, 6 Wend. 615; 9 Am. & Eng. Encycl. of Law, 909; Richardson v. Crandall , 48 N.Y. 362.)

D. C. Collier, Haines & Ward, and Collier & Haines, for Respondent.

The competency of the plaintiff to enter into a contract with the city was a question for the city council to decide, and their decision was conclusive in the absence of petition of remonstrance. (Laws, 1885, secs. 3, 11, pp. 148, 156.) No appeal having been taken there was no jurisdiction in the superior court to entertain the supposed incompetency of the plaintiff. (Nolan v. Reese , 32 Cal. 484; Himmelmann v. Hoadley , 44 Cal. 213; Spaulding v. Homestead Ass'n , 87 Cal. 40; Chambers v. Satterlee , 40 Cal. 520.)

JUDGES: Vanclief, C. Searls, C., and Haynes, C., concurred. McFarland, J., De Haven, J., Fitzgerald, J.

OPINION

VANCLIEF, Judge

Page 429

Action to enforce the lien of an assessment on the lot of defendants in [33 P. 432] the city of San Diego, for street work, alleged to have been done by plaintiff under a contract awarded to him by the city council and executed on the part of the city by the superintendent of streets. The complaint is in the usual form.

The answer, after denying the allied contract, averred, and the court found: "That, at all the times mentioned in plaintiff's complaint, the city of San Diego was a municipal corporation of the fourth class, organized and existing under an act of the legislature of the state of...

To continue reading

FREE SIGN UP