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for not less than par, does not render it a special law in a constitutional sense.
In Bank. Mandamus by the city of Redlands and others against A. E. Brook. Writ granted.
F. A. Leonard, for plaintiffs. Henry J. Willis, for defendant.
BEATTY, C. J. This is an original pro(eeding in which the plaintiffs pray for a writ of mandate to compel the defendant to sign certain municipal bonds which the plaintiffs propose to issue. The cause has been
. submitted upon a general demurrer to the complaint for want of facts. The material facts alleger, and by the demurrer admitted, are that Redlands is a city of the sixth class. That its board of trustees at a regular meeting duly adopted, by a vote of more than two-thirds of all its members, a resolution declaring it necessary to incur an indebtedness of $50.000 for the following purposes: “For electric lighting of said city to be furnished by private company for the fiscal year 1907; and for the care and maintenance of streets and public parks of said city for said fiscal year (not including, however, any municipal improvements of any kind or nature whatever)." That said resolution was approved by the executive of said city. That an ordinance was duly passed calling for a special election at which the electors of said city should vote on the question of the issuance of the bonds. That the election was duly held and out of a total of 852 votes 7.33 were in favor of issuing the bonds. That thereupon an ordinance was duly passed providing for the issuance and sale of the bonds by which it was made the official duty of the defendant to sign the bonds and coupons. That demand was made upon him to sign said bonds and coupons, but he refuses to do st), alleging as his reason for such refusal that said bonds are invalid and void and would not create a legal obligation against said city if signed or executed by him." It is further alleged that said proposed indebtedness of $30,000 will not exceed, together with all the indebtedness of said city, in the aggregate, 15 per cent. of the assessed value of all the real and personal property in said city. These, with other allegations of the complaint, it is conceded, show that all the constitutional and statutory requirements as to procedure in the matter of the issuance of municipal bonds bave been fully complied with; but it is objected that the purposes for which the proceeds of the bonds are to be used are not among those for which municipal corporations are authorized to borrow money.
The declared purposes to which the proceeds of the bonds were to be applied, no less than the concluding portion of the resolutiun to incur the indebtedness—the part in
which was carried into the ordinance subsequently passed, show that the proceedings were not intended to be based on the act of February 25, 1901 (St. 1901, p. 27, c. 32), which confers authority to create a bonded indebtedness for the sole purpose of acquiring, constructing, or completing permanent improvements, the cost of which will be too great to be paid out of the ordinary annual income and revenue of the municipality. The limited authority granted by this act would seem to indicate an intention on the part of the Legislature to withhold the power to borrow money to pay for current expenses, and if it was the only law relating to the subject it would seem very plain that the bond issue in question here is illegal. But section S60 of the municipal incorporation act of 1883 (St. 1883, p. 271, C. 49) is far more liberal in terms and effect. It is therein provided that municipal corporations of the sixth class may incur a bonded indebtedness in the method here followed whenever the board of trustees shall deem it necessary for the purpose of supplying a deficiency of the funds in the treasury applicable to the payment of any expense which they are empowered to incur in behalf of the municipality. And by section 862 (page 209) of the same act they are empowered to "lay out, alter, keep open, improve and repair streets, sidewalks, alleys, squares and other public highways, and places within the city or town, and to drain, sprinkle, oil and light the same." In view of this provision there can be no question as to the power of the board of trustees to incur the expense of purchasing electric lighting from a private company or the expense of the care and maintenance of the streets and public places in the city. And if they can lawfully inr.::r such expenses it is very clear that seot. a 860, by its terms, confers the power to supply any deficiency in the funds applicable to these purposes by the issuance of bonds.
The only question that suggests itself is whether section 866 is still in force; whether, in other words, it may not have been repealed by the passage of the later act of 1901, in which, as above shown. the power of municipal corporations to incur a bonded indebtedness is limited to the acquisition, construction, or completion of permanent improvements the benefit of which will inure to the future inhabitants of the city or town, in contradistinction to those things which are properly deemed a current expense payable out of the revenue of the year in which they are consumed. This is a question of very serious import, which does not seem to have engaged the attention of counsel, and in the absence of argument we are not willing to decide it. We merely direct attention to the fact that here is a general law applicable to all municipal corporations organized under the law of 1883, later in date than that act,
and covering the subject of municipal bonds.
(151 Cal. 479) Such laws, notwithstanding repeals by im- NEW LIVERPOOL SALT CO. V. WESTplication are not favored, have sometimes
ERN SALT CO. (L. A. 1,820.) been held to operate such repeal of older (Supreme Court of California. July 2, 1907. statutes to which they make no express ref
Rehearing Denied Aug. 1, 1907.) erence.
1. TROVER AND CONVERSION EVIDENCE TO We are, however, relieved of the necessity
Defendant contracted for the sale of all the of deciding this question in the present case
salt in its possession to a salt company, the by reason of the enactment of a curative
title to vest at once in the purchaser. It then statute approved March 4, 1907 (St. 1907, p. sold a part of the salt to other parties. The 104, c. 80), by which the proceedings in this
salt company thereafter sold the entire salt
covered by the contract to plaintiff. All of the and all similar cases have been validated.
payments were made to defendant as provided In the absence of constitutional restric- by the contract. Held, that defendant was liations, the power of the Legislature to vali
ble to plaintiff for the conversion.
[Ed. Note.For cases in point, see Cent. Dig. date past transactions which it could have
vol. 47, Trover and Conversion, $ 119, 120.) authorized in advance is restrained only by
2. SALE-CONSTRUCTION OF CONTRACT-PAYthe necessity of protecting vested rights.
MENT OF PRICE-EFFECT OF DEFAULT. Here are no vested rights to be guarded, and A contract for the sale of a certain salt prothe only constitutional restrictions to which
vided that it be paid for in certain payments
made at stated times, and also that the seller our attention has been called are contained
be allowed 25 cents per ton for expenses of dein subdivisions 14 and 18 of section 25 of livery, payable each month, the amount thus article 4 of the Constitution, which forbid
paid being deductible from the last payment to
be made on the salt, and that on default in paythe enactment of special laws giving effect
ments the title should revert to the seller. Held, to invalid deeds, wills, or other instruments, that the provision for forfeiture referred only or legalizing, except as against the state, the to those sums which constituted a part of the unauthorized or invalid act of any officer.
purchase price, and not to the charge allowed
for expenses of delivery. The answer to the objection based on these
3. SAME – ACTION BETWEEN SELLER AND .provisions is that the act of March 4, 1907, THIRD PERSON. is not a special law. It is a curative act,
Where defendant sold salt to a company
which before delivery the company sold to plainand, of course, is retroactive in its operation,
tiff, in a suit against the defendant for convertapplying exclusively to past transactions; ing a part of the salt to its own use after the but it embraces all municipal corporations, sale to the company, the defendant cannot comand every case in which not less than two
plain that the plaintiff has failed to pay the
company for the salt, and that according to his thirds of the qualified electors voting at a
contract of sale the title to the salt has reverted special election called for the purpose have to the salt company, since the enforcement of approved the proposed issue of municipal the forfeiture of plaintiff's title to the salt could bonds. The fact that the law is limited in
be waived, and the salt company had taken no
action to enforce the same. its application to bonds sold after its pas- 4. TROVER AND CONVERSION-DAMAGES-VALsage, and for not less than par, does not UE OF PROPERTY-EVIDENCE. render the law special in a constitutional In an action to recover a large quantity
of salt or its value converted by the seller, a sense. There was an excellent reason for
wholesale merchant, after the sale, the defenddiscriminating between such bonds, and oth- ant is liable for the wholesale price or value ers that might have been marketed prior to only, and evidence of the market value at rethe statute for less than their value, for the
tail, unsupplemented by proof of the difference
between the wholesale and retail prices, was invery reason that there was a doubt as to
sufficient. their validity.
[Ed. Note.-For cases in point, see Cent. Dig. We do not deem it necessary to discuss vol. 46, Trover and Conversion, $ 212.) this matter more in detail, or to cite the cases
Department 1. Appeal from Superior Court, referred to in the briefs. It is enough to
San Diego County; N. H. Conklin, Judge. say that there is no constitutional objection
Action by the New Liverpool Salt Comto the validating act, and that the proceed
pany against the Western Salt Company to ings of the plaintiffs in ordering the issue of
recover possession of a quantity of salt or these bonds, if not originally valid, certainly
its value. From a judgment for defendant became valid immediately upon the passage and an order denying plaintiff's motion for of the act of March 4, 1907. A very instruc
a new trial, plaintiff appeals. Reversed. tive opinion of the Supreme Court of Minne
Purcell Rowe, C. H. Rippey, and A. Haines sota in a case closely resembling this, and in
(J. S. Chapman, of counsel), for appellant. which the authorities are extensively review
Victor E. Shaw and Titus, Wright & Creed, ed, is City of Minneapolis v. Brown, 106 N.
for respondent. W. 477, 97 Minn. 402. It is ordered that peremptory writ of man
SHAW, J. The plaintiff appeals from the date issue as prayed.
judgment and from an order denying its mo
tion for a new trial. The action was for the We concur: HENSHAW, J.; McFAR- possession of 4,600 tons of salt, or its value, LAND, J.; SLOSS, J.; LORIGAN, J.
if possession could not be recovered.
The salt in controversy consisted of salt sold by the Western Salt Company to another corporation, known as the “Amalgamated Salt Company," by a written contract executed December 20, 1902. At the time of the sale the salt was left in the possession of the Western Salt Company in accordance with the terms of the contract. Afterwards, on January 2, 1904, the Amalgamated Salt Company sold the salt embraced in that contract to plaintiff. The following is a statement of the material parts of the agreement of sale of December 20, 1902, between the Western Salt Company and the Amalgamated Salt Company: The Western Salt Company, which was the party of the first part, thereby sold to the Amalgamated Salt Company “all salt now owned by the party of the first part which is now lifted from the vats, sacked and stored in piles, bins and warehouses on the premises of the party of the first part," at the head of the bay of San Diego. The buyer agreed to pay for this salt $8,000 of its capital stock, to be transferred to the Western Salt Company, and, in addition thereto, as follows: “Twenty-three hundred dollars ($2,300.00) on or before January 13, 1903, and the further sum of thirty-four hundred and fifty dollars ($3,450.00)
($3,450.00) on or before the 13th day of April, 1903. And the party of the second part further agrees to pay to the party of the first part twenty-five cents (25) per ton, on the 13th of each month for the salt delivered by the party of the first part and taken by the party of the second part in the preceding month, said 25 cents per ton to represent the sewing, sacking and delivery of said salt on board cars at the works of the party of the first part on said premises ; • providing however, that the party of the second part agrees to further pay to the party of the first part on or before January 1, 1904, the further sum of eleven hundred and fifty dollars ($1,150.00), after deducting from said sum the amount which the party of the second pårt may have paid under the provision in this contract for the payment of 25 cents per ton upon the 13th of each month for sewing, sacking and delivery of said salt. It is further understood and agreed, that said party of the second part has the right to the immediate possession of said salt and that it shall be lawful for said party of the second part, its agents and employés, to enter any premises on which said salt may be stored, or such other places as said salt is, or may be stored, and take and carry away said salt, and to occupy and use so much of any place where said salt may be stored so far as is necessary tor use for such purpose while preparing said salt for transportation, without any charge therefor by way of rental or otherwise, but nothing in this clause shall be a waiver on the part of the party of the first part to the compensation as hereinbefore agreed upon. The title to said salt is hereby vested in the party of the second part, and it
is further agreed between the parties hereto that in case any of the payments aforesaid shall not be made as above specified, then the title to said salt shall revert to the par. ty of the first part, and it shall have the right to sell the same for the amount due it under this agreement, and no salt shall be removed from said premises by the party of the second part until said sums, amounting to $5,750.00, shall be paid."
1. The findings are that the salt on the premises on December 20, 1902, at the time of the sale to the Amalgamated Salt Company, amounted to only 1,788 tons; that after that date, and prior to the sale to the plaintiff in January, 1904, the defendant had sold, shipped, and converted to its own use 963 tons of the said salt, leaving only 825 tons remaining on the premises at the time of the latter sale. The court concluded that the effect of the agreement by which the salt was sold to plaintiff in 1904 was that the plaintiff thereby acquired title only to the salt then remaining upon the premises; that is, to the 825 tons aforesaid. In this, we
. think, the court was in error. The contract of sale in 1904, by its terms, purports to sell to the plaintiff "all that certain salt, 4,600 tons or more, which said salt was purchased by the party of the first part (Amalgamated Salt Company) of the Western Salt Company, and is particularly described in that certain agreement made and entered into by and between the said Western Salt Company (and) the party of the first part, on the 20th day of December, 1902." This clearly describes and purports to sell and transfer title to all the salt included in the act mentioned, wherever it might then be situated. The defendant contends that the previous sale and conversion of the 963 tons, involving, as it is claimed, the removal of that salt from the defendant's premises, or its destruction, excludes that part of the salt from the operation of the contract of sale to the plaintiff. There is no evidence that any part of the salt was destroyed. The evidence merely shows, as the court found, that it had been sold, shipped, and converted by the defendant. It is therefore unnecessary to determine what would be the effect upon the validity of the sale if it had been actually destroyed at the time. Under the contract with the Amalgamated Salt Company, the defendant was the bailee of all the salt, and that company was the bailor. Civ. Code, 88 1748, 1822. It was the defendant's duty, as bailee, to safely keep the salt bailed and deliver it to the bailor, or its successor in interest, on demand. Lawson on Bailments, $ 22; Story on Bailments, $ 122. Neither the wrongfu conversion of property to his own use by a bailee, nor his wrongful transfer of the possession thereof to another, can divest the title of the true owner. This is settled in this state by the decision in Howe v. Johnson, 117 Cal. 41, 48 Pac. 978, and Faulkner v. Bank, 130 Cal. 258, 62 Pac. 463. The title
thus remaining in the Amalgamated Salt does not lie in his mouth to set up his wrongCompany, after the conversion, was a species ful act in answer to such action, or to say of property, and as such it was subject to that he is unable to comply with the demand sale and transfer by the owner. Civ. Code, for possession because of his own breach of $8 1044, 1047; Rice v. Whitmore, 74 Cal. duty, and that the burden is on him to show 623, 16 Pac. 501, 5 Am. St. Rep. 479; Curtin any excuse, such as that his possession v. Kowalsky, 145 Cal. 434, 78 Pac. 962. The ceased before suit brought, by accident, or contract of sale by that company to the plain- some means beyond his control and without tiff described the salt converted, as well as his fault. The opinion proceeds to say that that remaining in the defendant's possession, these principles "are eminently just, and are and therefore its effect was to transfer to founded on the maxim that no man can take the plaintiff the title to all the salt in con- advantage of his own wrong, and they are troversy wherever situated, and notwith- as applicable now to an action based on a standing its previous removal by the defend- contract of bailment as they were to such ant. The plaintiff, by virtue of its purchase action when it had to be brought under the of all the salt embraced in the contract of special form of detinue." The following auDecember 20, 1902, above quoted, and the thorities are of similar effect: 14 Cyc. 259, extension of the time of making the $1.150 260; 5 Cyc. 188, 189; 3 Am. & Eng. Ency. payment from January 1, 1904, to February
of Law, 703; Lawson, Bailments, $ 23; Schou1, 1904, was entitled to the immediate pos- ler, Bailments (2d Ed.) p. 30, note; Cobbey session of all the salt at the time of its pur- on Replevin, $ 212; Howe r. Johnson, supra; chase thereof. The payment of $1,150 was Serat v. Utica, 102 N. Y. 681, 6 N. E. 795; not a condition precedent to the existence of · Rogers v. Windoes, 48 Mich. 630, 12 N. W. the right of immediate possession, at least 882; Brady v. Wnitney, 24 Mich. 156; Tome not until February 1, 1904, when it became v. Dubois, 73 U. S. 548, 18 L. Ed. 943. due. To avoid all question upon this point, 2. The two payments amounting to $5,750, however, the plaintiff paid it before that day,
called for by the contract of December 20, and thus complied with every condition that
1902, were duly made as agreed, but no salt could at any time become necessary to entitle
was delivered under the contract, prior to it to demand delivery of the salt from the
February 1, 1904. The plaintiff made the defendant, including that removed and con
final payment of $1,150 to the defendant in verted as well as that remaining on hand.
January, 1904, and thereupon demanded deIt made the demand, and possession was re
livery of the salt. During the months of fused. A right of action for possession, or
February, March, and April, after the suit for the value of the salt, if possession could
was begun, the defendant delivered the renot be recovered, immediately accrued to the
maining 825 tons. The plaintiff has not paid plaintiff.
any additional sum for the expenses of deThe fact that the defendant had, before
livering this salt The court below held that the demand, or before the action was begun, the 25 cents per ton, for delivery expenses of parted with the possession of the salt, was the salt thus subsequently delivered, was not no defense. Nor would the fact that plain
included in the final payment of $1,150, but tiff was vendee of the original bailor affect was additional thereto, basing this concluthe case in this particular. This question
sion upon the fact that the delivery was was fully considered in Faulkner v. Bank, made after the making of said final payment. supra. It was there held that an assign- The court was of the opinion that the proviment of a note by the owner, after the bailee
sion that the delivery expenses were to be had parted with its possession to a stranger, deducted from the final payment applied only transferred the title and right of possession to
in case the salt was delivered before that the owner's assignee, and that the bailee could payment was made, and that, if it was denot defend an action by the assignee for its livered after that payment, the charge was possession or value, on the ground that, be
to be an addition to the price. From this it fore the demand by the assignee, he had de- concluded that the failure to pay $206.25 for livered it to a third person who claimed to
expenses of delivering the salt delivered aftbe the owner, and that he was therefore er the suit was begun caused the forfeiture unable to deliver possession in compliance of the plaintiff's title to that part of the salt with the demand. The opinion declares that 1 and defeated its right of action, and that the the action is of the character formerly known defendant was therefore entitled to judg. as an action in detinue, and that the rights
ment. The contract should not be thus conof the parties are to be determined by the strued. A contract is not to be construed to principles of the common law applicable to provide a forfeiture, unless no other interthat form of action. It then quotes passages pretation is reasonably possible. The 25 from 1 Chitty's Pleadings, 139; Haley V. cents per ton for experses of delivery was Rowan, 5 Yerg. 301, 26 Am. Dec. 268, and not to be due until after delivery, and then Reeve v. Palmer, 5 Com. B., N. S. 84, to the only to the extent of the salt delivered. Deeffert that, if a bailce wrongfully deliver the livery could not be enforced until after the goods to another, he will continue liable in first two money payments, amounting to detinue for the goods or their value, that it $5,750, were made. The defendant was given
power to sell the salt that might be for- and warehouses," as stated in the contract, feited, a power which ordinarily requires de- nor that any specific quantity was described livery of possession to make the sale com- in the contract. The contention is, in this plete, thus implying that the forfeiture was behalf, that one Wadsworth and one Bab to be of salt in its possession, and not salt cock, as agents of the defendant, negotiated clelivered to the purchaser. It was evidently the sale of the salt to the Amalgamated Salt expected that all the salt would be delivered Company; that they then represented to that long before the $1,150 became due. If so, company that there was at least 1,600 tons the amount to be deducted for delivery ex- of salt situated as described; that, because penses woull be ascertained before that in- of these representations, the defendant is, stallment was paid. Considering all the pro- as a matter of law, estopped to deny that visions of the contract, together with the any less quantity was so situated and sold; surrounding circumstances, we think its true and that this estoppel operates not only in construction is that the provision for a for- favor of that company, but also in favor of feiture upon failure to make any payment plaintif, as defendant's vendee. We need specified in the contract, referred only to not determine the soundness of the proposithose sums which constituted the part of the tions that the representations created an purchase price of the salt payable in money, estoppel, and that the estoppel operates in and which might become due before delivery, favor of the vendee. There was evidence and not to the charge of 23 cents per ton for from which the court may have concluded sewing, sacking, and delivery of the salt on that Wadsworth was not the agent of the board cars, which was not to be paid until Western Salt Company, but was the agent the 13th of the month succeeding such de- and promoter of the Amalgamated Salt Comlivery. It is unnecessary, in this action, to pany; that in that capacity, and before the determine whether or not the defendant is latter company was incorporated, he visited entitled to further charges for these delivery the salt works of defendant and saw the salt expenses, after having received full payment there on hand; that whatever statements of the final installment of $1,150. Our con- were made to the Amalgamated Salt Company clusion is that, after having paid the final were made by him in his report to that cominstallment, the failure of the plaintiff to pany after its incorporation, as its own agent; pay delivery charges for subsequent deliver- and that the principal object of the Amalgaies did not cause the title to such salt to mated Salt Company in making the contract revert to the defendant.
was not to purchase any particular quantity 3. The contract of sale from the Amalga- of salt, but to buy the stock of salt which the mated Salt Company to the plaintiff also Western Salt Company then bad ready for contained a provision that, if payment of the market so as to prevent the continued comprice was not made as specified, the title petition of the latter in the salt business. should revert to the Amalgamated Salt Com- Upon such facts the court might justly hold pany. The court found that at the time of that the contract should be taken literally, the trial the plaintiff had not yet paid that as its words imply; that is, as a sale of the company for the 825 tons of salt received by salt on hand at that place ready for market, it under the contract. It would seem that without especial regard to its quantity. We from this fact the court believed that the express no opinion upon the question whethplaintiff's original title to the property had er it could, under different circumstances, be been defeated, and that it could not recover construed otherwise. If the court believed possession. We think this was a matter of the facts were as above indicated, there could no concern to the defendant. If a forfeiture be no estoppel. took place, as was claimed, it was after the 5. The plaintiff further contended that the suit was begun. The enforcement of such pleadings admitted that the amount of salt forfeiture could be waived. Some affirma- on hand at the time of the sale on December tive action by the Amalgamated Salt Com- 20, 1902, was 4,600 tons. We need not decide pany would be necessary as evidence of an this proposition. It may be conceded that intention to enforce it. It does not appear the pleadings are somewhat ambiguous upon that any such action was taken, and its en- that point; but, as the judgment must be forcement will not be presumed in favor of reversed and a new trial had, the defendant the defendant for the purpose of defeating may be allowed to amend its pleadings, if this action.
it so desires, so as to remove all doubt upon 4. There is a claim by the plaintiff that that subject. the finding that the salt which was the sub- We may add, with respect to the value of ject of the sale of December 20, 1902, was the salt, that evidence of the market value of only 1788 tɔns, is not sustained by the evi- salt at retail, in lots of less than a ton, in dence, and that the court should have found the city of San Diego, would be a very unthat it consisted of 4,000 tons. It was not satisfactory measure of value of salt in lots seriously contended that the evidence was of 1,000 tons or more at wholesale, and that, such as to require a finding that there was unless such evidence was supplemented by at that time 4,600 tons of salt on the prem- proof of the difference between the wholesale ises "lifted, sacked and stored in piles, bins and retail prices, it would not. of itself, en