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Leonard v. Darlington

Supreme Court of California
Apr 1, 1856
6 Cal. 123 (Cal. 1856)


         Rehearing Granted 6 Cal. 123 at 125.

         Appeal from the District Court of the Fourth Judicial District.

         This was an action of ejectment for a fifty-vara lot, on the corner of Beale and Harrison streets, San Francisco. The plaintiff derived title from the Commissioners of the Funded Debt of the city of San Francisco.

         The deed from the Commissioners to the grantors of plaintiff was made September 20th, 1852, by P. A. Morse, William Hooper and Beverly C. Saunders, as " the present acting members of the Board of Commissioners of the Funded Debt of the city of San Francisco."

         The Board was composed of five members, of whom only the three above named participated in the action of the Board in ordering the sale of the lot in question, in July, 1852; although on the 15th of May, 1851, immediately after the creation of the Board, all the Commissioners met and passed a resolution that they would sell or lease, at auction, all the real property of the city which should come into their hands, but without any determination of the time, place or manner of the sale, or of the number of lots to be sold. Under this resolution it does not appear that anything was done.

         The transcript of the record in this case occupies nearly four hundred pages, and the brief of appellants occupies fifty printed pages. The above facts, however, are all to which allusion is made in the opinion of the Court; and those points raised by counsel, which are passed upon by the Court, are only reported.


         The deed from Morse, Sanders and Hooper, to Leonard and Gardner, the grantors of plaintiff, was void and insufficient to pass the title, being executed by only three of the five Commissioners. (Laws of 1851, 387, secs. 1, 12; 1 Cruise's Dig., Title 12, Ch. 4, Sec. 37; Sample v. Lamb's Curator, 2 Lon. R. 275; Sutton v. Cole, 3 Pick. 232; Sinclair v. Jackson, 8 Cow. R. 582-3-4; 1 Sug. on Pow. 143 to 146, side paging; Co. Litt. 112 B.; Mills v. Cowper, 2 Ham. R. 124.)

         James B. Townsend, for Appellants.

          John T. Doyle, for Respondent.

         The power given to the Commissioners by the Legislature, was a power conferred on a public officer, and for a public purpose, and though all should meet and consult, a majority may act, andthe act of the majority is the act of the body. (Ex parte Rogers, 7 Cow. 526; 21 Pick. 75; Crocker v. Crane, 21 Wend. 211; Grindly v. Barker, 1 Bos. & Pul. 229; King v. Beeston, 3 D. and East, 592; Orris v. Thompson, 1 Johns. 500; 6 Johns. 39; Grant on Corp. 80; 23 Wend. 324; 17 Johns. 461; 7 Wend. 17.)

         Here the Commissioners met immediately after their appointment, and resolved to sell the whole of the city's property. The fact that the mere ministerial act of executing the deed was only performed by three of them, does not invalidate the title derived under them. (Hall v. Canal Commissioners, 9 Watts, 466; Commissioners of Alleghany Co. v. Lecky, 6 Sergt. & R. 170; 5 Binney, 481; Doe, dem. Read v. Goodwin, 1 Dowl. & Ryl. 259.)

         It being proved that the persons signing the deed were the acting Commissioners, their title to their office, or right to execute its duties, cannot be tried collaterally. (People v. Collins, 17 Wend. 56, People v. Stevens, 5 Hill, 616; People v. White, 24 Wend. 525; 1 Spencer's R. 387; 15 Mass. R. 180.)

         The only party who could object to the conveyance asmade, would be the city, whose property was the subject of its disposition. It does not lie in the mouth of a mere occupant, who does not connect his possession with the city's title, to object to a want of that rigid regularity in the exercise of the powers conferred on public officers, which the city might have exacted. (Jackson v. Dolsen, 5 Johns. 43; 1 Caine's Cas. in Er. 17, 20.)

         JUDGES: This case was decided in the January Term, the opinion of the Court being delivered by Mr. Justice Terry, and Mr. Justice Heydenfeldt concurring.


          TERRY, Judge

         A rehearing being granted, the following opinion was delivered at the April Term by Mr. Justice Terry, Mr. Chief Justice Murray concurring.

         After a careful consideration of the argument and authorities submitted by counsel on the rehearing of this cause, we see no reason to doubt the correctness of the opinion heretofore delivered.

         It is contended by counsel for respondents that the Commissioners of the Funded Debt constituted a public board for public purposes, and therefore the act of a majority is valid and binding, as the act of the board. The authorities all agree that although a majority of public Commissioners may control, yet it is necessary that all should meet and consult, or have notice of the time and place of meeting, that they may attend if they desire to do so.          It appears that on the 15th of May, 1851, the Commissioners met and passed a resolution, to the effect that they would sell or lease at auction all the real property of the city which should come into their hands; no time, place or terms of sale were agreed on, nor was it determined what number of lots should be sold. It does not appear that anything was done under that resolution.

         In July, 1852, three members of the Board met and resolved to sell the lot in controversy, with others, specifying the time, place and terms of the sale, and the character of the funds to be received in payment of lots purchased at such sale. At the time of this meeting, J. W. Geary, one of the Commissioners, had resigned, and D. J. Tallant was absent from the State, and had no notice of the meeting; so that, conceding the point contended for by respondents, the sale is invalid, tested by the authorities cited by himself.

         For these reasons, in addition to those given in a former opinion, we are satisfied that the judgment of the Court below is erroneous. It is therefore reversed, with costs.

Summaries of

Leonard v. Darlington

Supreme Court of California
Apr 1, 1856
6 Cal. 123 (Cal. 1856)
Case details for

Leonard v. Darlington

Case Details


Court:Supreme Court of California

Date published: Apr 1, 1856


6 Cal. 123 (Cal. 1856)

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