Stowe v. Maxey

This is an action in equity brought to restrain the defendant, as the auditor of the county of San Joaquin, from drawing his warrant upon the treasurer of said county, in payment of a certain claim allowed by the board of supervisors in favor of the San Joaquin County Fair As

The transcript shows that in 1919 the,San Joaquin County Fair Association was incorporated as a nonprofit corporation, for the purpose of advertising, exploiting, and making known the resources of San Joaquin County, etc. During that year a county fair was held by said association in said county at a site called “Oak Park.” Prior to the incorporation of the association just referred to and at all times since said date the county of San Joaquin was and has been the owner of certain premises known as and called the Fair Ground site near the city of Stockton, upon which are located a race-track, stables, exhibition buildings, and a grandstand. During the years 1920, 1921, 1922, 1923, and 1924 the San Joaquin County Fair Association has conducted fairs upon the premises last herein referred to. These fairs have been conducted upon said premises with the knowledge and consent of the individual members of the board of supervisors of San Joaquin County, but it does not appear from the transcript that the board of supervisors either expressly or impliedly took any legal action in reference to the use and occupation of said grounds by the San Joaquin County Fair Association, or with reference to the improvements and expenditures thereon made by the association.

The transcript shows that after taking possession of the fair grounds the association proceeded to make many improvements thereon in the erection of buildings, fences, bams, turnstiles, installation and conduct of a cafeteria, and generally doing all those things necessary to the conduct of a county fair upon said premises. It further appears from the transcript that the fair association proceeded to collect moneys from the sale of admission tickets and otherwise, and applied the same toward the payment of the expenses of conducting the fair and in the erection and furnishing of the buildings referred to, and in the purchase of personal property deemed necessary in the conduct and maintenance of county fairs.

It further appears that with the conclusion of the county fair held by the San Joaquin County Fair Association in the year 1924 the expenses at that time showed an excess of some $15,000 over receipts. For the purposes of paying off

“Whereas, the County of San Joaquin is the owner of that certain real property, and the improvements thereon, known as Agricultural Park, which said property has been heretofore acquired by said County and improved with exposition buildings, race track, stadium, and other recreation and amusement park features; and

“Whereas, the San Joaquin County Fair Association, a private corporation heretofore, with the sanction and consent of said Board of Supervisors, took charge of and made certain improvements in and about said Agricultural Park for the purpose of improving same as a public recreation ground and park and rendering same more suitable for the carrying on of a County Fair for the purpose of collection, preparing and maintaining exhibitions of the products and industries of the County of San Joaquin as a domestic exposition, and for the purpose of exhibiting and advertising the agricultural, mineral and other resources of said County, and did, in the month of August, 1924, hold, at said Agricultural Park, in said County, a domestic exposition known as the San Joaquin County Fair, for the purposes aforesaid; and

“Whereas, said San Joaquin County Fair Association, a private corporation, has presented, or caused to be presented to this Board of Supervisors certain demands against the Treasurer of the County of San Joaquin for allowance and payment for certain debts incurred by said San Joaquin County Fair Association for and on behalf of the County of San Joaquin; and

“Whereas, it further appears to this Board that the hereinafter specified claims and demands are legal charges against the county of San Joaquin pursuant to subdivision VI, of Section 4041 of the Political Code of the State of California empowering Boards of Supervisors to pay out of the general fund the expenses of improving public

“It is hereby resolved and ordered that the incurring of the hereinafter designated claims and demands heretofore incurred by the San Joaquin County Fair Association, a private corporation, as aforesaid, be, and the same hereby arc ratified by the Board of Supervisors of the County of San Joaquin as having been incurred for its use and bene- , fit for and on its behalf and the same are hereby approved, allowed and ordered paid to the following named persons, firms and corporations, in the amounts set out after their respective names, from the General Fund and the Immigration Fund of said County of San Joaquin, as hereinafter designated.”

This resolution is the first official action taken by the board of supervisors in relation to the county fairs held in said county by the San Joaquin County Fair Association, a corporation.

The manner in which the fair association took general charge of the fair grounds and proceeded with its improvement of the same, the erection of buildings, and the holding of county fairs, is fully shown by the testimony of W. L. Douglas, the manager of the fair association. His testimony is as follows: “My introduction to the board of supervisors was in June, 1920, when they came out to the Fair

In 1924, in preparation for the 1924 fair, the transcript shows that the association furnished materials and supplies, constructed fences about the race-track, eared for the grounds, repaired the buildings, installed a pump and turnstiles, and performed other work considered necessary in connection with the holding of the county fair.

The first official action of the board of supervisors relative to the expenditures made and indebtedness incurred by the Sail Joaquin County Fair Association, a corporation, was the passage of the resolution which we have herein set forth.

The transcript further shows that during all the times mentioned herein the county of San Joaquin had a duly appointed and acting purchasing agent, as provided for in subdivision 21 of section 4041 of the Political Code, and, therefore, as provided for in subdivision 7 of said section, in order to require bids for furnishing materials, supplies, and work for the county, the aggregate sum to be expended under the contract must exceed the sum of $1,000. The court in this case has found that the contracts exceeded said sum.

The appellant’s contention in the first instance is based upon the provisions of subdivisions 6 and 33 of section 4041 of the Political Code and section 4056b of said code. The inapplicability of subdivision 6 of section 4041 is apparent, however, as it nowhere relates to the holding of fairs or performing the acts generally done and performed by the

Subdivision 6 of section 4041 of the Political Code empowers the board of supervisors to purchase, receive by donation, lease, or otherwise acquire water rights, or real or personal property necessary for the use of the county, for a courthouse, jail, hospital, historical museum, art gallery, art institute, stadium, and almhouse, an exposition building or buildings, public pleasure ground, public parks, and other public purposes, and also property upon which to sink wells, etc. Provision is made as to the manner of acquiring such property. The method therein provided for was not followed in the case at bar, if the section were otherwise applicable.

Subdivision 33 of section 4041 authorizes boards of supervisors to levy a special tax not exceeding two cents on the hundred dollars of the assessed valuation of all property within the county to be used for advertising, exploiting, and making known the resources of the county for the purpose of inducing immigration to, and increasing the trade and commerce of, said county, or for the purpose of exhibiting or advertising the agricultural, mineral, or other resources of the county, and further specifying that if the taxes so levied do not raise the sum of $5,000, the board of supervisors may appropriate from the general fund of the county an amount sufficient to make up the deficit between the amount received from the taxes and the said sum of $5,000.

Section 4056b of the Political Code empowers the board of supervisors of the several counties of the state of California to levy a special tax ón the taxable property within their respective counties for the purpose of creating a fund to be used for collecting, preparing, and maintaining an exhibition of the products and industries of the county at any domestic or foreign exposition, etc., specifying, however, that the total tax for any such purposes in any one year shall not exceed six cents on each one hundred dollars of taxable property, and providing that such taxes shall only be levied by a two-third vote of the members of the board.

The transcript does not show compliance with any of the sections or subdivisions of sections of the Political Code.

There is no allegation in any of the pleadings in this action, nor in the briefs, indicating compliance with the sections of the code relative to raising money for the holding of expositions, but it would inferentially appear that no such action was taken by the board of supervisors of the county of San Joaquin, from the fact that the first official act in relation thereto or pertaining to any of the matters involved in this action was the passage of the resolution dated January 12, 1925.

We are thus brought to a consideration of the questions whether the board of supervisors of the county of San Joaquin could legally delegate to the San Joaquin Fair Association the performance of the work, the holding, conducting, management of county fairs, making such expenditures as the association saw fit, exercising its own judgment, as found by the trial court, and then after all such expenditures have been incurred, ratify the same so as to make the difference between the money received and the money paid out by the San Joaquin County Fair Association, a corporation, a valid claim upon the treasurer of the county of San Joaquin.

The answers to these questions are so clearly and distinctly set forth in the opinion filed by the learned judge of the trial court that we take the liberty of quoting therefrom in extenso:

“This is an action brought by the plaintiff, a citizen and taxpayer of this county, to restrain the County Auditor from drawing on the County' Treasurer of this county warrants in payment of certain claims that were, on or about the 12th day of January, 1925, approved and allowed-by the Board of Supervisors of this county in the sum of $14,988.25, all of which were in favor of San Joaquin County Fair Association, a Corporation, with the exception of $95.25 in favor of one F.

“As already noted, it appears in this case that the ownership of the Fair Grounds property with all its improvements, valued at over two hundred thousand dollars, was vested in the County of San Joaquin, and the duty of the care and control thereof during the year 1924 was vested in the Board of Supervisors. Furthermore, the power and duty of the making of improvements thereon, together with the manner of proceeding thereunder, was by statute delegated as a trust by the people, through their legislature, to the Board of Supervisors. Section 4041, paragraphs 6 and 7, specifically provide that ‘the boards of supervisors in their respective counties shall have jurisdiction and power, under such limitations and restrictions as are provided by law, to purchase, receive by donation, real or personal property necessary for the use of the county for ... an exposition building, or buildings, public pleasure grounds, public parks, and other public purpose, . . . and to improve, preserve, take care of, manage and control the same ... to construct . . . build or rebuild, furnish or refurnish, or repair exposition building or buildings for exhibition and advertising, farming, mining, manufacturing, livestock raising, and other resources of the country . . . and to provide all the necessary officers, employees, attendants and supplies for the maintenance of the same . . . Whenever the cost of construction of . . . exposition building or buildings, stadium or other public buildings, or the cost of any repairs thereto, or furnishing thereof, shall exceed the sum of five hundred dollars, such work shall be done by contract, and any contract thereof shall be void unless the same shall be let as herein provided.’ Then follows specific directions touching plans, specifications and bids, and proviso that ‘in counties employing a purchasing agent, that furnishings, materials and supplies used in the work mentioned in this subdivision, costing more than one thousand dollars, may be purchased by said purchasing agent, etc.’ And also to the board of supervisors is delegated the trust ‘to purchase, acquire, construct, equip and

“The foregoing being the powers delegated to the board of supervisors, it appears without conflict, and, in fact, by the direct testimony of the Manager of the Fair Association Corporation, as well as by the recitals in the Resolution of the Board of Supervisors of January 12, 1925, that all the expenditures which form the basis of the Fair Association’s claim were made upon the initiative and judgment of the directors of such Association, and under the sole direction of their manager, as regards the determining of the amount thereof, the kind, character and extent thereof, as well as the cost thereof, and from whom and by whom purchased, and the manner and method of the purchase thereof, and that at no time and in no manner did the Board of Supervisors, acting as a Board, assume any control thereof, or exercise any discretion in regard thereto, or in any way assume any authority or control thereof, or by original resolution or otherwise, authorize or direct the activities of the Fair Association in regard thereto. And furthermore an examination of the many various items and the general subject matter of the claims, fully shows that the purchase of the articles set forth therein, and the making of the improvements shown by the testimony to have been made through the use of the labor and material set forth therein, comprised and consisted of, to the extent of every dollar thereof, improvements, repairs, furnishings and equipment upon county property which the law provides could be made only by the board of supervisors, and furthermore only by the supervisors by the use, in a legal

“It is a canon of law, as well as of common sense, that a subsequent ratification cannot give validity to an act or a conduct which, in the first instance and in its inception, was without validity, or, as stated in our Civil Code (Section 2312), ‘a ratification is not valid unless at the time of ratifying the act done the principal has power to confer authority for such an act.’ Now, as already indicated, the act which the Besolution of January 12, 1925, seeks to ratify, is the act of the Fair Association (in every respect

“Now, it may be conceded (without reference to any questions involving advertising or the use of the Purchasing Agent), as contended by learned counsel, that the Board did, as a matter of fact, have authority under the statute to have in the first instance planned and carried out this work, and to have made all the expenditures that were made. But from this it does not follow, in law or in fact, that the Board had the power to do the act indicated above, and which the Resolution itself of January 12th, clearly implies was done; which act was an attempted unlawful vesting in an unofficial body of the judgment and discretion vested in and delegated by the law to the Board of Supervisors. Also learned counsel placed some reliance upon language used by Justice Henshaw in the case of Power v. May, reported in 114 Cal. 207 [ 46 Pac. 6 ], and 123 Cal. 147 [ 55 Pac. 796 ], That was a case where an attorney-at-law applied for a writ of mandate against the Treasurer of Tulare County to pay his claim based upon professional services rendered by him to the County. It was conceded in that case that the county had, in the first instance, power under the law to employ an attorney to render his professional services. And it further appeared that the only informality in regard to his employment (in addition to some matters of fraud and collusion which were afterwards satisfactorily explained) was ‘that there was no previous formal resolution of the Board authorizing plaintiff to perform services; that there was an understanding to that effect, which for some unexplained reason was not entered upon the minutes of the Board. ’ And it was in reference to this informality that the following language relied upon by counsel was used by the Court: ‘Can the board of supervisors legally allow a claim for the beneficial use of money,

“And in the final decision of the case the Court disposed of the matter in the following language: ‘While in all matters of such importance we think the board should act formally by resolution spread upon the minutes, still, as they had the power to act and the services were performed, and the board did in fact subsequently approve the bill for the services and order it paid, we know of no reason why the subsequent ratification and order of payment should not be treated as equivalent to previous authority regularly given.’

“But, as already noted in the case at bar, there was neither any original contract of employment, nor was the act sought to be ratified anything more than an implied delegation, at the most, of authority to the claimant to give employment in the use of its discretion to other people. And therefore, in principle, the case at bar should not be governed by the case cited; but the doctrine applied in the later case of Knight v. City of Eureka, 123 Cal. 194 [ 55 Pac. 769 ], That also was a ease where an attorney-at-law brought suit against a municipality to recover compensation for professional services of concededly high value and benefit to the city. But in that case the claimant was not obliged to rely upon mere ratification of a previous contract of employment. He was able to rely upon a resolution of the council which was passed before he accepted the employment or entered upon the duties thereof, and it was conceded in that case also that the city had authority, if properly exercised, to initiate the employment, and to be obliged to pay therefor. But in that case the resolution

“Also, in deciding the case, the Court enunciated and relied upon basic principles of law wdiich it would seem are specially applicable in the case at bar, the following being some of the language used:

“ ‘Practically, the authority here delegated left with the agent of the council the discretion to determine the necessity for employing an assistant and to fix his compensation. These were the powers which, in our opinion, the council alone could exercise, and therefore, could not be delegated. ’

“We think the true doctrine is correctly stated by Mr. Dillon at Section 96: ‘ The principle is a plain one, that the public powers or trusts devolved by law or charter upon the council or governing body, to be exercised by it when and in such manner as it shall judge best, cannot be delegated to others.’ (123 Cal., at pages 194, 195 [ 55 Pac. 769 ].)

“And furthermore, if it is contended that the implied direction given to the claimant herein was not, in effect, as the facts seem to indicate, a mere attempted delegation of authority, but was a direct employment of the Fair Association Corporation to itself do the work, then and in that event, it is evident that such act of implied direct employment failed absolutely to come within the rules laid down by the statute for the guidance and control of the Board of Supervisors in the letting of contra,cts or the making of purchases involving such a large sum as fifteen thousand dollars, and pertaining to the kind and character of the

“Section 4056b and Subdivision 33 of Section 4041 of the Political Code are intended simply to give the Board power to levy taxes for the purposes indicated therein, to-wit: to advertise, exploit and make known the resources of the county, etc., and to create a fund to be used for collecting, preparing and maintaining an exhibit of the products and industries of this county at any domestic or foreign exposition for the purpose of encouraging immigration. But it is to Subdivision 7 of Section 4041 that we must look when we desire to ascertain the conditions and limitations under which the Board of Supervisors must act when they desire to exercise their powers in the way of making permanent improvements and refurnishing of the kind in the case at bar. By the Amendment of 1923 there was specially included in Subdivision 7 matters pertaining to the rebuilding, furnishing or refurnishing of ‘exposition building or buildings for exhibiting and advertising farming, mining, manufacturing, livestock raising and other resources of the county, stadium, and such other public buildings as may be necessary to carry out the work of the County government and supplies for the proper maintenance of the same.’ It therefore follows that the doing of the work by the Supervisors for which compensation is sought herein, could only be done under the restrictions touching plans, specifications and bids laid down in Subdivision 7.

“Likewise, as regards the acquiring of the personal property if it be assumed that the property was acquired directly from the claimant here, and not as the result of any delegation of authority to the claimant, then such acquisition should have been had through the purchasing agent designated by the legislature in Subdivision 21 of the Act.”

In addition to the foregoing, we may add, quoting the language of the text-writer, in 18 Cal. Jur., page 1002, section 273:

“It is generally recognized that ultra vires contracts of a municipal corporation are absolutely void, and cannot be the subject of ratification or estoppel in pais.' And the decided weight of authority is to the effect that when, by charter or statute, the mode in which contracts of a municipal corporation may be entered into is prescribed, and any other

The citations set forth as supporting this statement of the law are too copious to be here inserted. And further upon the same subject, we may quote from 7 Cal. Jur., page 512, section 86:

“Inasmuch as a county has power to make only such contracts as are expressly authorized or such as may be necessary to the exercise of its powers, it follows that any contract made in excess of this power is ultra vires and therefore void. . . . Also where duties are enjoined by law upon county officers specially designated for their discharge, the board of supervisors is entirely without authoritly to contract with private parties for their performance,” citing a number of authorities.

The entire transcript in this case shows that the board of supervisors delegated its authority to a private corporation, even if we assume that it had authority to expend the money in the first instance. In making this statement, we must disregard what we have heretofore said, that the transcript shows no compliance with the law relative to the raising of money for the purposes of holding a county fair. That boards of supervisors may not delegate the performance of acts involving an exercise of judgment or discretion, see, also, 15 Corpus Juris, 465; Mechem on Agency, 2d ed., p. 84, par. 124.

We see no escape from the conclusion that the board of supervisors had no authority to delegate to the San Joaquin Fair Association, a private corporation, the performance of the acts which it did perform so as to render the county liable for any deficiency between the receipts and expenditures of such private concern in the handling of a county fair. Having no authority to make the delegation, the ratification is absolutely void.

The judgment of the trial court is affirmed.

Glenn, J., pro tern., and Finch, P. J., concurred.