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tive department of the city government, could not, by express enactment, ratify a contract made without this pre-requisite, and, of course that the city could not be made liable for work not thus contracted for upon a quantum meruit, or otherwise. But the citations made above only go to the general doctrine of ratification of contracts by municipal corporations, irrespective of the particular provision of the charters referred to. That doctrine is, that a municipal corporation can only be bound in the mode prescribed by the charter; that is, in ordinary cases, by ordinance. If the corporation may contract by ordinance, it is clear it may ratify by ordinance, and the ratification would be as good to effectuate the contract as if the contract had been originally authorized' by ordinance. But the ratification must be in the mode in which the corporation is authorized to contract. No action of the legislative department, much less of any of the other departments, in any other mode, would be binding.
In Herzo vs. San Francisco, 33 Cal., 145, the case of Zottman vs. San Francisco, 20 Cal., 96, is cited, and expressly approved, the court saying: “It was held in the opinion delivered by Mr. Chief Justice Field, and which is remarkable for its logical clearness and the conclusiveness of its arguments, and has since been regarded by the profession as a leading case upon the propositions therein discussed, that the city was not liable for the extra work, and could not incur an obligation in that manner; and this on the ground that the rule applicable to the corporate authorities of all municipal bodies is, that *uhu-n the mosle in whih their power on any given subject can be exercised is prescribed by their charter, the mode must be followed. The mode in such cases constitutes the m-asure of the
power.' In this case of Herzo vs. San Francisco, the facts were, that the Common Council undertook, by ordinance, to sell some of the reclaimed lands in the bay, and Herzo became the purchaser, and paid the purchase money, which passed into the city treasury, and was used as other funds of the city. The charter required a vote of the majority of the members of the council to make a valid sale. The Bard consisted of eight members, one of whom resigned, and before the vacancy was filled the seven members met, and by a vote of four to three, ordered the sale. The courts afterwards held the sale void upon the ground that the ordinance was not passed by a majority of the whole council. After the sale was decreed to be void, the purchaser brought suit against the city for the money paid by him, but judgment was given against him upon the grouvd, that, although traced to the city treasury, it was not shown that it had ever been appropriated by the city by a specific ordinance referring to it.
“The city, in our opinion,” say the court, “not being responsible for the acts of her assumed agents up to and including the placing the money in the treasury, and the money being then the money of the plaintiff, responsibility for the money does not attach to her till she has converted it to her own use. The unauthorized act of the Treasurer in paying it out to a third person is not the act of the city, and it makes no difference in this respect, whether he pays it to a creditor of the city, or to any other person. The city could not rightfully do anything with the money; and to be responsible for it she must have wrongfully converted it to her own use, and this she must have done by some corporate act, and the only act competent for that purpose was an appropriation, for that is the only manner in which she can dispose of money. The report of the Secretary of the Land Committee and of the Treasurer, and the acceptance of the reports by the Common Council, neither changed the ownership, the custody or control of the money-it still remained in the hands of the Treasurer and continued the property of the plaintitf.”
"It is not intended,” add the court, “to controvert the position of the plaintiff, that if the city received the plaintiff's money, she is liable in an action for its recovery, for it is correct beyond a doubt; but the important question in the case must first be decided: did she receive the money? Nor is it intended to deny it to be a rule of law that the principal, whether a natural or an artificial person, is responsible for the acts of his agents while they are acting within the scope of their employment; and, as a necessary inference therefrom, that when they are not so acting, he is not responsible.”
“The immunity of the city from responsibility for the unauthorized acts of her assumed agents can work no greater hardship than would occur if the present principal were a private corporation or person, for in each case, those who deal with those professing to be agents, must see that they are such agents and invested with proper authority; and if they are not what they assume to be, they are responsible for their acts, and in the one case as well as in the other, the person dealing with the pretended agent may follow the property improperly obtained from him.”
“ The fact that the treasurer may have paid portions or all of the money to the creditors of the city, can make no difference in principle; for if he was not empowered and directed by the city authori
ties to make such payment-and the only mode in which she could act in conferring such authority, was through the medium of an ordinance appropriating the money-it would amount to no more than a voluntary payment made by any other person, or the same officer out of other funds of which he may have procured the possession, either rightfully or wrongfully, but without the direction, aid or assent of the city government or any of its authorities.”
We have already seen in Zottman vs. Sm Francisco, 20 Cal., 96, that a contractor failed to recover for extra work done for the city by a change in the original plans, although expressly authorized to do the extra work by the committee entrusted with the supervision of the original contract; and although all the members of the Common Council must have been aware of the order for the extra work, and the work itself was the subject of general conversation and approval by the members at their various sessions and elsewhere, and no opposition to it was ever expressed by any menuber. This is a very strong case upon the rule that a ratification can only be in the mode in which the act could have been originally authorized. The same subject was cousidered by the same court in Pirel'in vs. County of Sin Frinciso, 6 Cal., 531. There a particular act which the law required to be done by the supervisors of the county, was sought to be sustained by showing that, although the supervisors had not acted upon it collectively, they had each individually approved it. The court say : “ We are satisfied that a legislative body, like the Board of Supervisors of a county, cannot be bound by acts in pais, but that the best and only evidence of its acts and intentions is to be drawn from the record of its proceedings.” This is cited approvingly in Arg‘nti vs. San Francisco, 16 Cal., 272, and is perhaps the only sound rule.
The weight of authority seems, therefore, to be, that the officer of a municipal corporation can not bind the corporation without ordinance, where the charter specifies that as the mode in which the corporate powers shall be exercised.
And every person who deals with such officer, or becomes the holder of negotiable securities purporting to be issued by the corporation, must, at his peril, see to the authority under which the officer acts, or the paper is issued. Any other doctrine, to use the words of the Supreme Court of the United States in the case of the Floyd Acceptances, would enable the officers of a municipal corporation, for the time being, “to flood the country with bills of exchange, acceptances, and other forms of negotiable paper, without authority and without limit.”
Taxes, and Sale of Real Estate for Non-payment of, &c., &c.
The principle upon which taxes upon real estate are levied and collected, and the modes adopted to attain this end, should be, in some measure, known to all men. To the jurist it is important, because he is called upon, either as a lawyer or judge, to argue, expound and decide questions arising herein, full of minute and technical difficulties, and involving at the same time, principles reaching back to the theory of government, and the relation of the citizens ; to the legislator it is important because it devolves upon him to pass the act by which the government is to be supported, its obligations clischarged, and each citizen made to contribute equally, in one sense, and proportionately to his wealth, in another sense, to discharge these general and common burdens ; to the citizen it is of deepest consequence, because his property is involved, and it is in his name that the legislator and jurist act, and upon his rights, and the error of each, directly or consequentially, affects him or his property.
It is somewhat astonishing that a subject demanding the thought and attention of all classes of citizens, and involving so many and such varied interests, sometimes appealing to the honor and good faith of the State, always appealing to the honor and sense of justice of each citizen, should have been so neglected that to-day, no lawyer could pronounce confidently to his client that any particular tax-sale communicates a good and perfect title, and there are but few who could not file a bill or issue a writ of ejectment, for the recovery of any piece of real estate, the title to which was claimed by virtue of a tax-sale, without clearly scrutinizing the records of the sale. Of all the methods known to the law by which the title to real estate may be acquired, this arising from a sule for taxes is the most uneertain and doubtful, if it be possible at all.
These sales are made at the instance of government, are based upon governmental necessity, originate at the hands of government officers, conducted through the courts by sovereignty or its agents, and yet, the character of the title communicated, is of such small regard and carries with it such little respect, that the defaulting owner does not give a second thought to the matter upon seeing the land adver
tised for sale, and in most cases has not the curiosity to attend the auction.
This is not the feeling by which he is actuated if the sale has been ordered at the instance of his individual creditor; then he bestirs himself, and the whole family is aroused by the fact that the home is about to be lost, and efforts are made to postpone the sale, or discharge the debt.
The want of interest in, or respect for, a debt due from the citizen to the government, if the debt be based upon a right of taxation, we greatly suspect originates in the feeling that such debts are unnatural, and could never arise out of man's natural condition, but springs alone from social and governmental reasons; and before these debts will ever receive other than indifference, if not positive hatred, the feelings of the tax-payer must be changed. He must be educated to the point, both in head and heart, to realize his relation to his government, and his personil and individual necessity for governmenit.
Let him ask himself the question, How is it that I alone have the right to use and cultivate this parcel of land upon which my house stands in part, and I alone, of all the millions of men, have this right, and can stand upon it and forbid all others from coming upon it. Standing upon it I am equal to all the rest of mankind--and in this respect I am a majority of one as against any and every body. He can well say not only is it mive to have, use and enjoy while I live, but mine to do with as I please when I come to die, mine“my heirs and assigns forever.” Vain man! Standing alone, or standing upon any naturul rights, could you so defiantly and proudly huve asserted your claims, and could not your vain boast have arvused the envy and hatred of some natural “ bully, "who, in a feat of fisticuffs, would nuturally try titles with you?
The legal fiction called “ title,” carries with it absolute rights to, and a well defined property in " land or other thing," which may be the subject of ownership, was never found in a state of nature, but is purely a contrivance of government, which creates the factum, defines it, confers and enforces it. It is an ideal thing which no man in a state of nature could ever have conceived, as are also evidences of this title such as deeds, wills, &c. A man who is the possessor of these evidences, government through all its departments, declares the land to be his; whether he is truthfully and honestly the owner of these evidences, or another is, becomes a question