21 Cal. 642 | Cal. | 1863
Cope, J. and Norton, J. concurring.
By an act of the Legislature, passed May 4th, 1852, the town
In May, 1853, at the second election under the act of incorporation, five Trustees were again elected, and of them also only four ever qualified. The Board, consisting of the four who qualified, by an ordinance, passed in August, 1853, ratified and confirmed the ordinance of the previous Board, reciting that the consideration, upon which such previous ordinance had been passed, had been “ in
By an act of the Legislature, passed March 25th, 1854, a municipal corporation by the name of the “ City of Oakland ” was created, and invested with all the rights, claims, and .privileges, and subjected to all the obligations and liabilities of the “ Town of Oakland.” The present suit is brought by the new corporation, and its object is to set aside and cancel the grant or conveyance to Carpentier, and enforce a surrender of the interests and property transferred or claimed to be transferred thereby.
The suit is, of course, for equitable relief, and the grounds alleged for the interposition of equity are that the grant or conveyance was obtained by fraud on the part of Carpentier, and was made without authority on the part of the Trustees, and that it constitutes a cloud upon the title of the city, and embarrasses her in the exercise of her legitimate functions.
The fraud alleged is that Carpentier obtained the act incorporating the town of Oakland without the consent or knowledge of the people of the town, and for the purpose of acquiring the franchises and lands subsequently granted to him; that at the election held under the act of incorporation he procured the election of himself and “ partners in land speculations ” as members of the Board of Trustees, and declined to qualify himself, in order to remove a legal obstacle to his obtaining the grant in question; and that the conveyance to Mm by the President of the Board was, according to an understanding with the Board, to be executed upon the delivery of a bond to reconvey the franchises and lands to the town when requested, but that it was obtained without such bond, upon representations that it was important to the interests of the town that it should be executed at once, in order to be filed before the Board of Land Commissioners, then in session, and that he would give the bond at some future period. Ho matters are stated in support of the allegation that he “ fraudulently procured the election of Ms tools and agents” in the year 1853, when the confirmation of the ordinance was obtained. It is very evident that the matters thus
Stripped of the charges of fraud the whole claim for equitable relief falls to the ground. The grant was either valid, or void, or voidable. If void, as contended by the counsel of the respondent, there can be no occasion for the interference of a Court of Equity. If void, the condition of things—of the rights, privileges, and estate of the city—remains as though no transfer had been attempted. Ho cloud is cast upon her title, and no embarrassment can attend the exercise of her legitimate functions. She has only to proceed and assert her privileges and claim her interests, and whoever interferes with them will be a trespasser. If, however, the grant
The conclusion which follows from the views we have expressed is evident. The charges of fraud, as a ground for the equitable interposition of the Court, are fully answered, and must be left out of the case. If the ordinances of the Board, granting the franchises and lands to Carpentier, are void, there is no occasion for the interference of equity. If they are only voidable, that interference cannot be invoked until equity is done by the party claiming it—that is, by placing or offering to place the party relying upon the acts of the agents of the town in the same position which he would have occupied but for his rebanee upon their validity. These views dispose of the case, and render it unnecessary to consider the other points made by the appellants.
The judgment of the Court below must therefore be reversed, and that Court directed to dismiss the suit, and it is so ordered.
The plaintiff asks a rehearing in this case, upon the ground that when the case was before this Court on a former occasion it was decided: first, that the action could be sustained without an offer by the plaintiff to do equity ; and, second, that although the transfer to the defendant was void, it was a proper case to ask the transfer to be set aside by the equity powers of the Court, and that these decisions have become the law of the case, and cannot now be reversed.
In the former decision the complaint was held to be sufficient, upon the ground that the transfer was absolutely void. Nothing was said as to whether it would have been sufficient without an offer to do equity, if the Court had considered the transfer not void, but only voidable. Afterwards the opinion was modified, by reserving for future revision the question of the validity of the contract with Carpentier. This was a reservation of the whole question as to its validity, as well whether it was voidable as whether it was void. The question whether or not the transfer was voidable being thus withdrawn, no decision can be inferred as to what would have been necessary to render the complaint sufficient, in case the Court should consider the transfer only voidable.
It may be argued that when this question was "withdrawn from the opinion, there was no ground specified in the opinion upon which the decision was made; but if this may be so, it does not follow that the decision necessarily involves a determination of a question which was not only not mentioned, but the basis for which was withdrawn from the opinion; and so, although it was said in that opinion that it was a proper case for equitable relief, considering the transfer absolutely void, yet when the ruling that the transfer was void was withdrawn from the opinion, the remark that it was a proper case for equitable relief became merely obiter, and
Rehearing denied.
Mr. Field having been appointed an -Associate Justice of the Supreme Court of the United States resigned the office of Chief Justice May 20th, 1863. Mr. Cope succeeded him as Chief Justice. The opinion on the rehearing was not filed until June following.