25 Cal. 117 | Cal. | 1864
This is an appeal from an order refusing to dissolve an injunction.
The injunction was improperly granted, and therefore the Court erred in overruling the motion to dissolve. The difficulty with the case made in the complaint is, that it has not too little, but too much strength.
Assuming the allegations of the complaint to be true, McCammon is Supervisor, neither de jure nor de facto; on the contrary, he bears no other character than -chat of a naked usurper. As to Quine, the complaint charges that he is a member of the Board, and the affidavits used in support of the motion to dissolve do not deny the averment. As to Edgcomb, he is not represented in the complaint as having, or as pretending to have, any official character whatever, but he is brought in simply as the owner of a building which he is seeking to sell to the county for a Court-house.
As to defendant Mussel*, the complaint charges that he is County Treasurer of Trinity County, and as such has in his possession the money belonging to the “ Court-house Fund.”
It is further stated that, at the filing of the complaint, the Board of Supervisors of the County of Trinity was in fact composed of the defendant Quine, and A. Gr. Price and Henry Martin, neither of whom is made a party.
The bill, then, was filed for the purpose of restraining Edgcomb from selling his bailing to the County of Trinity, and to restrain one Supervisor only, out of three, from making the purchase.
To guard against the purchase effectually, the action should have been brought against two members of the Board at the least. The co-operation of McCammon with Quine in the matter of the threatened purchase, does not vary the matter, for McCammon was a mere pretender by averment, and in view of the Act of March 31, 1857, (Wood’s Dig. 697,) we consider that he was a pretender in fact.
At the expiration of the time for which McCammon was
But if the charges were made against those who constitute the Board of Supervisors, in an action brought for the purpose of restraining them frpm making the purchase in question, there is great doubt whether the action could be maintained. Boards of Supervisors under the general law (Wood’s Dig. 694, sec. 9) have no power to purchase real property on behalf of the counties they represent, except where the value of the property has been previously estimated by three disinterested persons appointed for that purpose by the County Judge. This important check has not been removed by the Act of 1863, (Stats, p. 55,) authorizing the Board of Supervisors of Trinity County to levy .a tax for a county “ Building Fund.” It is true that in that case three persons were appointed by the County Judge to estimate the value of the building in question; but instead of reporting an estimate of value they reported that the building was in their judgment wholly' “ unsuitable for a Court-house.” Under such circumstances the members of the Board of Supervisors would themselves be as powerless to make the purchase as any or all of the present defendants.
The bill, then, cannot be maintained, for the reason that the purpose of Quine and McCammon to purchase in the name of Trinity County the building named, for a Court-house, is one that is impossible of accomplishment. Ho irreparable damage, and no damage at all, can result to the county if Quine and McCammon are left to follow their own devices. (De Witt et als. v. Hays, 2 Cal. 463 ; Robinson v. Gaar, 6 Cal. 275.) There is no defect so fatal as a want of power;
From- what -'has .been said, it follows that, if Quine and McCapmipn skould.-make the purchase of Edgcomb, and draw on the .Treasurer iiiffiis favor for the purchase money, the order would- be void on' its face, as having been drawn by parties
The order appealed from is reversed, and the Court below is directed to dissolve the injunction.
By the Court, Shatter, J., on petition for modification of opinion.
Since the decision of the appeal taken in this action a petition has been presented on the part of the appellant, asking not for a rehearing, nor for any modification of the judgment, but for a modification of the opinion, on the ground that the opinion is to some extent obiter; and on the further ground that the Court has misapprehended the contents of the report made by the committee appointed by the County Judge to pass on the value of the building owned by Edgcomb, and which he proposed to sell to the county.
In so far as the opinion passes upon any question not necessary to the decision of the appeal, it will interpose no obstacle to a re-investigation of such question upon its merits in any case that may hereafter come to this Court in which the point shall be directly presented. In so far as the misapprehension of the contents of the committee’s report is concerned, the document, as such, was not in the transcript, and we were therefore justified in assuming that it had no contents, aliunde the contents set out in the proceedings. Any case coming here hereafter showing that the report comprehended topics other than those to which the present record confines it, will be a case, to that extent, different from the present, and of course one to which the opinion in this case cannot be considered as having any just application.
Petition denied.
