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cution, though such statute authorizes it to sue and be sued.

[Ed. Yote.--For cases in point, see Cent. Dig. vol. 2, Agriculture, $$ 7, 8.] 2. LIMITATION OF ACTIONS - FRAUD - CONPLAINT.

The complaint in an action to vacate a judgment because of fraud in not interposing a certain defense does not show a right to more than three years for bringing it, under Code ('iv. l'roc. $ 3:38, subd. 4, providing that the limitation of three years for relief from fraud does not begin to run till discovery of the facts constituting the fraud, by the mere allegation that the failure to interpose the defense was not discov. ered till within two months before commencement of the action to set aside the judgment; no reason fo failure to make the discovery being given, and it not being stated that any dilirence was exercised, or that with reasonable diligence the discovery would not have been marle sooner.

TEd. Yote.--For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, $ 668.]

Department 1. Appeal from Superior Court, San Joaquin County; Paul W. Bennett, Judge.

Action by the people, on the relation of Fred J. Post and others, against the San Joaquin Valley Agricultural Association and others. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed and remanded.

Rehearing denied; Beatty, C. J., dissent

ing

U. S. Webb, Atty. Gen., Aug. Muenter, and Aug. E. Muenter, for appellant. Nicol & Orr

. and Budd & Thompson, for respondents.

under the act of April 15, 1880 (St. 1880, p. 62, c. 69). A consideration of the provisions of that act, in connection with the previous legislation on the subject of agricultural societies, the provisions of the Constitution of 1879, and the subsequent legislation concerning corporations of the character of the defendant corporation, clearly shows that the association is a public corporation engaged in carrying on one of the objects committed to the state government by the Constitution. In 1859 a general law was enacted authorizing the formation of local agricultural societies. St. 1839, p. 101, c. 110. Under this act, prior

, . to 1880, some 12 societies were formed in various parts of the state. Among them was one in San Joaquin county, known as the "San Joaquin Valley Agricultural Association.” In 1851 the “California State Agricul. tural Society" was incorporated by the Legislature. Neither this corporation, nor any of the societies formed under the act of 1859, was a public corporation, or, at all events, neither of them was a state institution, or under the control and management of the state, but were either private corporations, or quasi public corporations formed to promote an object in which the general public was interested and by which the public would be benefited, but for the profit and emolument of the persons interested therein. Melvin v. State, 121 Cal. 19, 53 Pac. 416. Under the Constitution of 1849, the legislative power to appropriate money directly to such institutions, and to authorize counties to give them pecuniary assistance, was unfettered. It became customary at every session of the Legislature to pass laws appropriating money to the State Agricultural Society and to each of the several subordinate societies organized under the act of 1859. Appropriations of this character were made to the San Joaquin Valley Agricultural Association aforesaid in the years 1861, 1863, 1872, and 1878. St. 1861, p. 107, c. 385; St. 1863, p. 522, c. 348; St. 1871-72, p. 442, c. 333; St. 1877–78, p. 332, c. 271. The Legislature at almost every session from 1860 to 1872 also authorized the county of San Joaquin to donate money to said society. Similar aid was authorized to other societies in other counties. In 1893 San Joaquin county was authorized to issue its bonds to the amount of $20,000, and give or loan the money thus raised to that society (St. 1863, p. 7, c. 4), and in 1865 a special tax was authorized to pay these bonds.

This was the situation when the present Constitution was framed and adopted in 1879. Article 4 of this Constitution contains radical measures concerning such legislation. Section 22 provides that "no money shall ever be appropriated or drawn from the state treasury for the use or benefit of any corporation, association, asylum, hospital, or any other institution not under the exclusive management and control of the state as a state institution, nor shall any grant or donation of property ever be made thereto by the

SHAW, J. The court below sustained a demurrer to the complaint, and thereupon gave judgment in favor of the defendants, from which the plaintiff appeals. By the action the plaintiff seeks to recover from the defendants R. W. Russell, Louis Gerlach, James H. Budd, M. A. Moore, Lotta Moore, and Nellie E. Jordan the possession of certain tracts of land, and to set aside a judgment rendered in favor of defendants Louis Gerlach, R. W. Russell, James H. Budd, and M. A. Moore against the defendant, the San Joaquin Valley Agricultural Association. The relators are members of said association and the action is prosecuted for said association's benefit to restore to it the possession of the land and to relieve it from said judgment. The defendants in possession of the land hold it under a sheriff's sale and deed, made in the enforcement of an execution issued upon the judgment. The plaintiff claims that the association is a public corporation created for the local administration of a part of the affairs of the state, and that, as such, its property is not subject to execution, unless made so by statute, that there is no such statute, and, hence that the sale and deed aforesaid are void. As to the judgment, the claim is that it was procured by actual and constructive fraud on the part of the judyment plaintiffs, extrinsic and collateral to the action in which it was given.

1. The association is a corporation formed

state." Certain exceptions were made rela- known as agricultural associations (St. 1880, tive to the support of orphans which are im- p. (.2, c. 09). In many respects these statutes material to the present discussion. Section were similar, and both were obviously pass29 was as follows: "The general appropria- ed to carry out the same public policy and tion bill shall contain no item or items of achieve the same general result. The generappropriation other than such as are required al purpose of the first-mentioned act is shown to pay the salaries of the state officers, the ex- by the duties enjoined on the state board, penses of the government, and of the institu which were "to collect and disseminate all tions under the exclusive control and man- kinds of information calculated to educate. agement of the state.” Section 31 took from and benefit the industrial classes, develop the the Legislature the power to give, lend, or resources, and advance the material interests authorize the giving or lending of the state's of the state," and to obtain and publish "such credit, or that of any county, city, and coun- suggestions and recommendations as experity, city, or township, or other political corpo- ence and good policy may dictate for the inration or subdivision of the state, in aid of provement and advancement of the agriculturor to any person, association, or corporation, al and kindred industries." The general municipal or otherwise, or to pledge the cred- | purpose of the district associations was deit thereof in any manner whatever, for the clared in the latter act to be “the improvepayment of the liabilities of any individual, ment of the material industries of the state." association, municipal, or other corporation In every legislative year thereafter, until whatever, or to make or authorize the making, 1903, the general state appropriation act has of any gift of any public money or thing of contained items appropriating from the state value to any individual, municipal or other treasury various sums of money to the State corporation whatever. These limitations di- Agricultural Society thus constituted, and to vested the Legislature of all power to make each of the several district agricultural assoappropriations of money to any private or qua- ciations that became organized under the si public corporation or to make any gift to any act here involved. In 1895 the items relatmunicipal or public corporation not under the ing to these district agricultural associations exclusive control and management of the state. were vetoed by the Governor. The LegislaIt also deprived the Legislature of the power ture of 1903, and succeeding Legislatures, to authorize counties to make donations, or have, perhaps wisely, refused to appropriate gifts or pledges of credit to such associa- inoney for these associations. tions. The Constitution does not give to any

In the case of selvin v. State, supra, it department of the state governnient any pow

was held that the State Agricultural Society, er whatever to engage in private business or

as incorporated by the act aforesaid, was enterprise or to manage and control private

neither a private nor quasi public corporacorporations or quasi public corporations for

tion, but was a public corporation, an agency private profit, although such corporations may of the state to carry out one of the functions, be carrying on enterprises or performing

of the state government, and that as such, functions which are for general public bene

in the absence of a permitting statute, it was fit and which tend to promote the general

not subject to suit by a private person. It welfare. Our state government has no such

was said in the opinion that the Legislature

of

such public corporations in section 1 of article general welfare in that manner or by that

, ,

general diffusion of knowledge and intelligence governmental powers, and by means of agencies which constitute part of the state govern

being essential to the preservation of the

rights and liberties of the people, the Legisment. These previously existing societies formed no part of the state government, and

lature shall encourage by all suitable means

the promotion of intellectual, scientific, morhence further aid to them by appropriations

al, and agricultural improvement.” Whether of money from the state was impossible.

this provision was intended to give this Under these circumstances, and for the

power or not, it is undoubtedly within the manifest purpose of creating such agencies to

power of the state to organize and carry on carry on the same public work, agencies to

such institutions. In the opinion in Re Mawhich money could be appropriated from

dera Irr. Dist., 92 Cal. 313, 28 Pac. 275, 1+ the state treasury by the Legislature, the next

L. R. A. 755, 27 Am. St. Res. 106, the court succeeding Legislature in 1885 enacted two

says: "Whatever tends to an increased proslaws, one declaring the state agricultural so

perity of one portion of the state, or to prociety to be a state institution, organizing the mote its material development, is for the state board of agriculture and charging it advantage of the entire state; and the right with the exclusive management and control

of the Legislature to make provision for deof the state agricultural society as a state in- veloping the productive capacity of the state, stitution (St. 1880, p. 19. c. 00),' the other, the or for increasing facilities for the cultivatact here in question, dividing the state into tion of its soil according to the requirements 11 agricultural districts, to be composed of of the different portions thereof, is upheld by certain named counties, and providing for the its power to act for the benefit of the peoorganization of corporations therein, to be ple in affording them the right of 'acquiring.

powers. It is not organized to promote the found ample authority for the organization or means, but only by and through its public 9 of the Constitution, which declares that, “a

possessing, and protecting the property,' | persons, representing a majority of the counwhich is guaranteed to them by the Constitu- ties within one of the districts, were authortion." And again, on page 315 of 92 Cal., ized to form an association for the purposes on page 270 of 28 Pac., 14 L. R. A. 753, 27 of the act. The association was to have perAm. St. Rep. 100: "The means by which the petual succession and certain enumerated Legislature may exercise this power is left powers. Its real estate was to be used for to its own discretion, except as it may be the purpose of holding exhibitions of the live limited by the Constitution. * * * It may, stock and products of the district, "with view too, by general laws, authorize the inhabit- to the improvement of all industries in the ants of any district, under such restric- same." It was to be managed by a district tions, and with such preliminary steps as board of agriculture, consisting of eight it may deem proper, to organize themselves members, who were to be resident citizens into a public corporation, for the purpose of of the district, were to hold office four years, exercising those governmental duties, upon and were to be appointed by the Governor the same principle that it authorizes the in- of the state, who was also authorized to corporation of any municipal corporation fill vacancies. Each member of such boards under general laws.” And again (page 317 was required to qualify by taking the oath of 32 Cal., page 276 of 28 Pac., 14 L. R. A. of office of public officers prescribed by sec755, 27 Am. St. Rep. 106): "Although in this

:

tion 3 of article 20 of the Constitution withstate the Legislature is required to provide in 10 days after his appointment. Section such agencies under general laws, it is au- 17 (page (1) of the act is in part as follows: thorized, under its general power of legisla- "Each association so formed and organized tion, to invest such corporations, when creat- is hereby declared and shall be recognized a ed, with the same powers which, without state institution, and the board so appointed such restriction, it could itself have exercis. and qualified shall have the exclusive control ed; and in providing for such organizations and management of such institution for and it need confer upon them only such powers. in the name of the state, and shall have the as in its judgment, are proper to be exercised possession and care of all the property of the by them in the discharge of the particular association and shall fix the terms of office functions of government which may be con- and the bonds of the secretary and treasurer, ferred upon them. Being the representatives and determine their salary and duties." The of the Legislature in the various localities Legislature in subsequent acts assumed to of the state, the requirements for organiza- exercise full power over these associations. tion, as well as the powers to be exercised, The original act designated the counties of vary with the character of the purpose for San Joaquin, Calaveras, Fresno, Kern, Merwhich they may be created." The carrying ced, Mariposa. Stanislaus, Tulare, and Tuolout of the purposes prescribed by these stat- umne as "Agricultural District No. 2." By utes regarding agricultural associations is a subsequent acts the district has been chang. matter of general public interest, and would ed and reduced, and in 1893 it was made to tend to increase the productive power of the consist of San Joaquin county alone. land, the growth of the state in population, 1893, p. 282. The number of districts in the and the wealth of the people. It is as much state has been increased from time to time, a matter of state concern as are school dis- until there are now 45. St. 1901, p. 304, c. tricts formed to carry on the public schools, 112. In 1891 a new statute was enacted, sanitary districts for the protection and pres- substantially the same as that of 1880, deervation of the health of the inhabitants claring that all associations formed under thereof, reclamation and levee districts to the previous act should be continued in force drain the swamp lands therein or to protect and made associations under the new act. them from overflow, or irrigation districts St. 1891, p. 138, c. 126. In 1897 a similar act to procure and distribute water for irriga- was enacted, and the previously established tion of lands within their limits, all of which associations were continued in force and have been declared to be public corporations made agricultural associations under the or agencies of the state. See cases herein- latter act. This statute also provided that after cited. Although some of these institu- such associations should have the option of tions may be authorized by express provi- converting themselves into stock companies sions of the Constitution, all are not so au- anıl issuing certificates of stock. St. 1897, p. thorized, and the power to create such agen- 304, c. 123. It does not appear that the decies to carry on such operations exists in the fendant association has ever availed itself government of the state without a more par- of this privilege. If it had done so, interest. ticular constitutional grant than those em- ing questions would arise concerning its braced in section 1 of article 4. In re Ma- status and its character as a corporation dera Irr. Dist., 92 Cal. 307, 28 Pac, 272, 14 L. which are not presented as the case stands. R. A. 755, 27 Am. St. Rep. 106.

All these considerations conclusively demThe provisions of the act providing for onstrate that these associations are public district agricultural associations clearly agencies of the state. within its exclusive erince an intention to make thein public management and control, and charged with corporations. The entire state was divided the performance of a part of the functions of into agricultural districts. Fifty or more the state government. Such corporations in

St.

this state have always been held to be public corporations. Dean v. Davis, 51 Cal. 410; People v. Reclamation Dist., 53 Cal. 348; People v. W'illiams, 56 Cal. 647; People v. Larue, 67 Cal. 528, 8 Pac. 8t; People v. Reclamation Dist., 117 Cal. 119, 48 Pac. 1016; S. F. Sav. Union v. Reclamation Dist., 141 Cal. 613, 79 Pac. 374; Hoke v. Perdue, 62 Cal. 516; People v. Levee Dist., 131 Cal. 30, 63 Pac. 676, holding reclamation districts and levee districts to be public corporations; Hughes v. Ewing, 93 Cal. 417, 28 Pac. 1067; Estate of Bulmer, 59 Cal. 131; Kennelly v. Miller, 97 Cal. 432, 32 Pac. 558, declaring school districts to be public corporations; Turlock I. D. v. Williams, 76 Cal. 3118, 18 Pac. 379; Irrigation Dist. v. DeLappe, 79 Cal. 333, 21 Pac. 823; People v. Selma, etc., Dist., 98 Cal. 208, 32 Pac. 1047; Crall v. Poso Irr. Dist., 87 Cal. 145, 26 Pac. 797; l'eople v. Turnbull, 93 Cal. 632, 29 Pac. 2:24, holding irrigation districts to be public corporations; In re Werner, 129 Cal. 567, 02 Pac. 97, declaring sanitary districts to be public corporations. These institutions are public corporations “formed for the government of a portion of the state" as defined in section 281 of the Civil Code, but, as is pointed out in Dean v. Davis, supra, “to constitute a public corporation, it is not essential that it shall exercise all the functions of government within the prescribed districts. * It is but an instrumentality of tlie state, and the state incorporates it that it may the more effectually discharge its appointed duty." See, also, Dillon on Mun. Corp. § 23.

The case of Downing v. Indiana State Board of Agriculture, 129 Ind. 113, 28 X. E. 123, 614, 12 L. R. A. 661, holding that institution to be a private corporation, is cited as opposed to these views. There is, however, a marked distinction between the laws of Indiana organizing that corporation and our statutes and constitutional provisions above referred to. There was in that case no necessity for making the institution a public corporation in order to authorize the making of appropriations to carry on the same. And the intention that it should be a public corporation under the management and control of the state was not manifested by the provisions of the statute there under consideration as it is by the terms of our statute. The property of such corporations or stage agencies, wbich is used to carry on the purposes for which such institutions are formed, is so far public property that it cannot be taken in execution and sold thereon to enforce payment of a judgment, unless the state has manifested its assent thereto by a law permitting it to be done. S. F. Sav. Union v. Reclamation Dist., 144 Cal. 618, 79 Pac. 374; Hensley v. Reclamation Dist., 121 Cal. 96, 33 Par. 101; Skelly v. School Dist., 103 Cal. 0.32, 37 Pac. 613; Emeric v. Gilman, 10 Cal. 410, 70 Am. Dec. 742; Mayrhofer v. Board, 39 Cal. 110, 26 Pac. 646, 23 Am. St. Rep. 51; Witter v. School Dist., 121 Cal. 350, 53 Pac.

905, 66 Am. St. Rep. 33; Whittaker v. Tuolumne, 96 Cal. 100, 30 Pac. 1016; Reclamation Dist. y. Sacramento, 134 Cal. 480, 66 Pac. 068; Ruperich v. Baehr, 112 Cal. 193, 75 Pac. 782; Gilman v. Contra Costa, S Cal. 58, 68 Am. Dec. 290; Ilunsaker v. Borden, 5 Cal. 290, 63 Am. Dec. 130; Sharp v. Contra Costa County, 31 Cal. 290; Hart v. Burnett, 15 Cal. 583; 1 Dillon, Mun. Corp. $ 100; 2 Dillon Mun. Corp. 576, 577.

The statute under which these associations were organized provides that they may sue and be sued. This, however, does not imply that the public property which such association holds and uses for the public purposes which it was created to serve can be seized on execution to pay a judgment recovered in such suit. This is abundantly shown by the authorities last cited. The complaint alleges that the real property in question has always been used by the defendant association for the purpose of holding the exhibitions which the association is required to hold annually by the provisions of the statute, and that it is needed for permanent use for that purpose. By the demurrer this allegation is admitted to be true. It follows that the property was not subject to execution; that the sale and sheriff's deed under which defendants claim title and possession are void; that plaintiff is entitled to recover possession; and that, as to this point, the demurrer was improperly sustained.

2. The right of action of plaintiff to vacate the judgment against the association on the ground that it was procured by fraud is barred by the statute of limitations. The date on which the judgment sought to be set aside was rendered does not expressly appear, but it is alleged that an execution was issued thereon on the 3d day of October, 1900, and consequently it must have been rendered prior to that date. The present action to set aside the judgment was begun on July 14, 1.905, four years and nine months after the execution was issued. By subdivision 4 of section 338 of the Code of Civil Procedure, an action for relief on the ground of fraud must be begun within three years, but the period of limitation does not begin to run until the discovery of the facts constituting the fraud. It is alleged that the failure of the district board of agriculture of district Xo. 2 to allege, in their answer in the action in which the judgment was rendered, certain facts which it is claimed would have constituted a good defense to said action, was fraudulent, and that it was by means of this fraudulent neglect that the judgment against the association was obtained. The attempt was made to bring the action within the period of limitation above mentioned by the bare averment that the failure to include the socalled defense in the answer "was not discovered by the plaintiff, or the said relators, or any of them, until within two months next before the commencement of this action." This is not a sufficient allegation to excuse

the delay. It gives no reason for the failure tiffs were the owners thereof, is that they were to make the discovery, and does not state

tenants in common. that any diligence had been exercised, nor

3. DAMAGES-PLEADING.

The averment that the loss of plaintiffs by does it show that, if reasonable diligence had

the destruction of the property was a certain been exercised, it would not have been dis- sum is the equivalent of the allegation that they covered sooner. The answer in the action were damaged in said sum. was filed on May 23, 1899, so that the act

4. NEGLIGENCE-SUFFICIENCY OF EVIDENCE

SETTING FIRES. constituting the fraud, if fraud it was, was

Evidence as to time and circumstances of actually committed at that time, which was setting fire on defendant's land, which spread to more than six years before the present action

plaintiff's' land, held sufficient to authorize a was begun. “It is not enough to assert mere"

finding of negligence in starting it. ly that the discovery was not sooner made.

[Ed. Note.-For cases in point, see Cent. Dis.

vol. 37, Negligence, $ 267.) It must appear that it could not have been

5. APPEAI-HARMLESS ERROR. made by the exercise of reasonable diligence.

Error in admitting evidence is harmless : And that which reasonable diligence would other evidence to the same effect having been adhave disclosed plaintiff is presumed to have

mitted without objection. known; means of knowledge in such a case

[Ed. Note.--For cases in point, see Cent. Dig. being the equivalent of the knowledge which

vol. 30, Appeal and Error, $ 4161.) it would have produced." Truett v. Onder

6. PLEADING-ANSWER-ISSUE AS TO VALUE.

No issue as to the value of the property dedonk, 120 Cal. 589, 53 Pac. 29. “ 'Discovery' ,

stroyed is raised by the pleadings; the complaint and 'knowledge' are not convertible terms, being verified and specifically alleging the value and whether there has been a 'discovery of

of each article, and the answer, which denied the facts constituting the fraud, within the

that plaintiffs were the owners of the property

or that fire destroyed it, or that defendant was meaning of the statute of limitations, is a guilty of any negligence, containing no other dequestion of law to be determined by the court nial as to the amount of damages than that "defrom the facts pleaded. As in the case of

fendant denies that the loss of plaintiffs, by

reason of the destruction of the property deany other legal conclusion, it is not sufficient

scribed in said complaint as therein alleged, was to make a mere averment thereof, but the $1,025," and not denying that it was of any sum facts from which the conclusion follows must

less than that. first be pleaded. It is not enough that the

7. NEGLIGENCE-PROXIMATE CAUSE-INSTRUC

TIONS. plaintiff merely aver that he was ignorant

There being evidence that the fire set by deof the facts at the time of their occurrence fendant on its premises was communicated to and has not been informed of them until plaintiff's land by a sudden whirlwind, which within the three years. He must show that

defendant could neither anticipate nor control.

it was entitled to the instruction, based on the the acts of fraud were committed under such

doctrine of liability only for negligence which circumstances that he would not be presumed is the proximate cause of the injury, that, if it to have any knowledge of them, as that they

was impossible for defendant to have prevented were done in secret or were kept concealed;

the fire from getting beyond its control, owing

to the sudden rising of the wind after the fire and he must also show the times and circum

was set, defendant would not be liable, provided stances under which the facts constituting due care was taken before the fire was set. the fraud were brought to his knowledge, so 8. APPEAL-RECORD-INSTRUCTIONS. that the court may determine whether the

An instruction appearing in the transcript

not authenticated or incorporated in the bill of discovery of these facts was within the time

exceptions, and being no part of the judgment alleged.” Lady Washington Co. v. Wood, 113 roll, and, moreover, printed only as a part of Cal. 186, 45 Pac. S09.

instructions "requested” by plaintiffs, cannot be For these reasons, we are of the opinion

considered as having been given, and so covering

an instruction requested by defendant and rethat so far as the action seeks to obtain a fused. vacation of the judgment referred to it is 9. TRIAL-INSTRUCTIONS-PREPONDERANCE OF barred by the statute of limitations.

EVIDENCE. The judgment is reversed, and the cause re

An instruction : "By preponderance of the manded.

evidence is not necessarily meant a greater pum

ber of witnesses, but only such weight of eviWe concur: SLOSS, J.; ANGELLOTTI, J.

dence as satisfies the jury of the truth of the allegation to be established”-is sufficient, though Code Civ. Proc. $ 1835, provides that only evi

dence which satisfies the "unprejudiced" mind (6 Cal. App. 184)

will justify a verdict. McVAY et al. V. CENTRAL CALIFORNIA INV. CO. (Civ. 349.)

Appeal from Superior Court, Colusa Coun(Court of Appeal. Third District, California. / ty; H. M. Albery, Judge. July 31, 1907.)

Action by W. N. McVay and another 1. NEGLIGENCE-COMPLAINT-IDENTIFYING DE- against the Central California Investment STROYED PROPERTY.

Company. Judgment for plaintiffs. DefendThe complaint for negligent destruction of

ant appeals. Reversed. property by fire from defendant's land sufficiently identifies the property by describing it and Morrison & Cope and Ernest Weyland, for locating it at the time of the fire on lands owned

appellant. Seth Millington, J. W. Goad, and by plaintiffs in a certain township and county and adjoining defendant's land.

Thomas Rutledge, for respondents. 2. PLEADING-PRESUMPTION. The prasuinption, from the allegation of a

BURNETT, J. The nature of the action is complaint for destruction of property, that plain-shown by the following allegation of the coni

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