Appeal from the Twelfth District.

On the trial, which was before the Court, by consent of parties, plaintiff introduced in evidence section eight of an ordinance of the city of San Francisco, passed November 4th, 1852, and also Ordinance No. 493, both of which appear in the opinion of the Court.

It was admitted that the land described in said section eight is the same land which is ordered to be sold by Ordinance No. 481, which was also introduced in evidence, and is as follows:

“ Ordinance 481—To provide for the sale of certain city property.

“ The people of the city of San Francisco do ordain as follows:

“ Section 1. That the Mayor and Joint Committee on land claims of the city of San Francisco are hereby authorized and required to sell at public auction (after not less than ten days’ advertisement) in three of the daily papers, to the highest bidder, at such time and place as they may think advisable, all those pieces or parcels of land and water situated in the city of San Francisco, and described as follows : First piece or parcel—Bounded on the north by Clay street, on the south by Central wharf, on the east by the west line of Drumm street, and on the west by Davis street. Second piece or parcel—Bounded on the north by Central wharf, on the south by Sacramento street., on the east by the west side of Drumm street, and on the west by Davis street. Third piece or parcel—Bounded on the north by Clay street, on the south by Central wharf, on the east by the west line of East street, and on the west by the east line of Drumm street. Fourth piece or parcel—Bounded on the north by Central wharf, on the south by Sacramento street, on the west by the east line of Drumm street, and on the east by the west line of East street—which last and west line of East street shall be continued westwardly and northerly in its present direction, to its junction with the south line of Clay street.

“ Sec. 2. Said pieces or parcels of land and water as herein specified, shall be resurveyed, under the supervision, and as the Mayor and Joint Committee on land claims may direct.

“ Sec. 3. Twenty-five" per cent, of the net proceeds of said sale shall be paid on the day of sale in cash, of State indebtedness receivable for public dues by the State, which amount shall be paid to the State of California pursuant to the Act of the Legislature, approved twenty-sixth March, one thousand eight hundred and fifty-one. Fifty per cent, to be paid in sixty days thereafter in cash, or city warrants that may have been issued on or after May first, one thousand eight hundred and fifty-one ; and the balance of twenty-five per cent, payable in four months from date of sale in cash, or three per cent, city scrip issued prior to May first, one thousand eight hundred and fifty-one, and which may not have be.en funded as provided by an act of the Legislature of this State, entitled: ‘An Act to authorize the Funding of the Floating Debt of San Francieco, and to provide for the payment of the same/

“ Sec. 4. The Mayor shall execute, on behalf of the city, a bond to each purchaser at the time of first payment, that when the whole of the purchase money is paid, the city shall give to the purchaser a deed of the lot or lots purchased; and on payment of the last installment, then the Mayor shall execute a deed to the party lawfully entitled to same under sale.

“ Sec. 5. That the eighth section, title four, chapter four of an ordinance to revise, codify and amend the general ordinances of the city of San Francisco, approved November fourth, one thousand eight hundred and fifty-two, and all other ordinances, or parts of ordinances conflicting with this ordinance be, and the same are, hereby repealed.

(Signed) “ Frank Turk,

“ President of Board of Assistant Aldermen.

“Joseph F. Atwill,

“ President of Board of Aldermen.

“Approved December 5th, 1853.

“ C. K. Garrison, Mayor/

At the time of the presentation, and at the time of the passage of the aforesaid ordinance, the Board of Assistant Aldermen was composed of seven members, one member having resigned, and his place not having yet been filled; and the said ordinance' received in the Board of Assistant Aldermen four votes only in its favor to three votes against it. In the Board of Aldermen it received the requisite number of votes, and was signed by the Mayor on the fifth day of December, 1853.

The companies and William E. Dennis, named in Ordinance No. 493, (which is given in the opinion) claimed that they would be damaged by the filling of the slip, and the sums mentioned in that ordinance were awarded to them in satisfaction of their claims for damages.

The Ordinance No. 493 was signed by the Mayor about half an hour before the sale hereinafter mentioned, and on the twenty-sixth day of December, and after the. said ordinance had been signed, the Mayor and Joint Committee on land claims—which committee consisted, besides the Mayor, of two members from each Board of the Common Council, and was a standing committee of the Common Council—proceeded to sell at public auction the land mentioned and described in said ordinance No. 481.

Said sale purported to be a sale by the city of San Francisco of the property mentioned in Ordinance No. 481, and was advertised for ten consecutive days preceding the same, in more than three daily newspapers printed and published in the city of San Francisco. At said sale there were present the Mayor, the Committee on land claims, and nearly all the members of both Boards of the Common Council. No person protested against, or objected to the sale, which was conducted in accordance with the directions of Ordinance No. 481. The prices were favorable to the city, and the property, since that time, has decreased in value, and at time of suit brought was not worth more than one-half the price obtained at the sale.

At the sale the plaintiff bid off lot numbered one hundred and ten, for the sum of $ 8,400—and paid at the time, on account, the sum of $2,100, either in cash or State warrants, to Selover & Sinton, the auctioneers who conducted the sale, which was afterwards, on the twenty-seventh day of December, 1853, paid by them to the Secretary of the Joint Committee on land claims. The difference between the value of State warrants and cash at the time of payment was from one to one and one-half per cent.

On the twenty-seventh day of December, 1853, a bond was signed, sealed and delivered to the plaintiff and accepted by him—said bond being sealed with the seal of the city, and authenticated by the signature of the Mayor, which seal was so affixed by the authority and direction of the Mayor, and the bond was conditioned for the conveyance of the lot in question by the city on payment of the purchase money.

Smyth Clark, to whom said payment was made, was Mayor’s clerk, and, before the said payment was made to him, was appointed by the Mayor and Joint Committee on land claims their secretary, and authorized by them to collect the money paid on account of city slip sale. On the twenty-first day of April, 1854, as Secretary of Land Committee, he made a report to the Common Council of moneys received from the sale of city property. Said report was in the name of the Land Committee—Smyth Clark being the author thereof—and was a report of money received by Selover & Sinton, auctioneers, and Smyth Clark, Secretary of the Land Committee, up to that time, and was accepted by the Common Council, after being referred to the Special Committee on land claims.

There was paid to the different city Treasurers from the proceeds of these sales, by the Land Committee, $ 630,426.05.

Prior to September 29th, 1854, the balance of the funds remaining in the hands of Smyth Clark, Secretary of the Land Committee, was attached in suits brought by one Argenti and others against the city of San Francisco, and on the twenty-ninth day of, September, 1854, the Common Council passed a joint resolution numbered four hundred and thirty-four, which is as follows:

“ Whereas, The Land Committee of the Common Council received, under authority of said Council, a large amount of promissory notes, city Controller’s warrants, State Controller’s warrants, and other evidences of indebtedness, as the proceeds of the sales of the city slips; and Whereas, there remains in the hands of Smyth Clark, the Secretary of said committee, a considerable portion of said promissory notes and city and State warrants, which have been attached in the hands of said Smyth Clark, at the suit of one Argenti and others, claiming to be creditors of the city—so that the same are held by the said Clark to answer said attachment—therefore,

“ Resolved, That the said Land Committee, and each and all of the members thereof, are hereby released and discharged from all further responsibility touching the said notes and scrip so remaining in the hands of said Clark.”

Said Clark continued to act as Secretary of the Land Committee and to have the collection of these funds, from early in the year 1854 to the end of the term of the Mayor and Common Council. No objection was ever made to his so acting, and the fact was well known to the Mayor and both Boards of the Common Council.

In sundry annual and monthly reports made by the Treasurer of the city of San Francisco, and accepted by the Common Council, payments were credited thus:

“ Received from Smyth Clark, Secretary of the Land Committee, on account of sale of city slip property.”

On the tenth day of January, 1854, the Common Council passed an ordinance, duly signed by the Mayor, directing the Joint Committee on land claims to pay the members and officers of the police for services rendered by them in the months of December and November, 1853, and for that purpose to use so much of the funds in their hands arising from the sale of property ordered sold by ordinance No. 481, as might be necessary ; and said payments were so made by the Land Committee, and receipts taken from the Treasurer.

By joint resolution, known as “ Joint Resolution No. 383,” passed January 9th, 1.854, the Common Council authorized the same committee to pay a judgment recovered by one John E. Body, against the city, out of the same funds. The sums of money so directed to be paid to the police officers and Body, were so paid to them by the said Joint Committee.

April 7th, 1854, the Common Council passed a joint resolution, No. 400, directing, among other things, the Committee on land claims to make to the Common Council a full report of said sales, and of the moneys in their hands arising therefr.om; and the committee accordingly reported to the Common Council on the twenty-first of April, 1854, being the report hereinbefore referred to, of which Smyth Clark was the author.

On the tenth day of April, 1854, the Common Council passed joint resolution No. 405, in the words following:

“ Resolved, That the city Treasurer be and he is hereby instructed to pay over to the State of California, out of the funds now in his hands, or which he may hereafter receive from the Committee on land claims, the portion of the receipts from the sale of city property sold by authority of Ordinance No. 481, which is due to the said State.

“ Resolved, That the city Treasurer be and he is hereby instructed to pay the outstanding warrants issued in settlement with the Clay, Central, Sacramento and California Street Wharf Companies out of the moneys remaining in his hands from the second payment on the sale of city property sold by authority of Ordinance No. 481, after the State’s interest in the sale of said property shall have been liquidated.”

-On September 13th, 1854, the Common Council passed a joint resolution, designated No. 431, in which it was recited and declared that the city had sold property—being part of the property in question—to purchasers who had paid the greater part of the purchase money.

On March 26th, 1851, the Legislature of the State of California passed an act entitled “An Act to Provide for the Disposition of certain Property in the State of California,” and on the fifth day of April, 1853, the Common Council of San Francisco passed an ordinance, duly approved by the Mayor, accepting the grant made by said act, and all the conditions thereof, and directing the payment of twenty-five per cent, of all proceeds arising from the sale of the property thereby granted—embracing the lots in question—to the State.

On March 16th, 1854, the plaintiff having paid the last installment of the purchase money, the Mayor of the city of San Francisco executed and delivered to him, and he accepted a deed, or what purported to be a deed, without warranty, of the premises so purchased by him at the aforesaid sale, which conveyance was sealed with the corporate seal of the city, affixed thereto by authority of the Mayor, and authenticated by his signature.

By ordinance duly passed and signed by the Mayor, on the fourth day of November, 1852, it was, among other things, provided that the Mayor of the city should have the charge and control of the seal of the city, and should therewith authenticate all acts of the city.

There have been paid to the joint committee on land claims, and also to the Treasurer of the city of San Francisco, by other purchasers at the sale of December 26th, 1853, large sums of money, and State and city Controller’s warrants, including warrants issued under Ordinance No. 493, and of the moneys and warrants so paid to the Joint Committee, a large portion was paid by them to the Treasurer of the city.

Plaintiff entered into possession sometime in March, 1854, and is now in possession of said lot, and has expended thereon the sum of $3,000 in improvements.

About one week previous to the trial of this cause, the plaintiff quitclaimed his interest in the lot to a person who had full knowledge of this suit, and all the circumstances.

At the time of the said payment made by the plaintiff on account of said sale, the city of San Francisco was indebted in the sum of $50,000 and upwards over the annual revenue of the city, excluding from such indebtedness the interest thereon existing on the fifteenth day of April, 1851.

Of the proceeds of said sales there were paid to the State $50,000 —in State indebtedness receivable for public dues by the State—by the Land Committee, being twenty-five per cent, of the proceeds of S sales, which had been paid at that time, and $ 60,000 of such indebtedness were attached in a suit against the city, in the hands of the Treasurer of the city.

The answer was a general denial. Defendant had judgment, and plaintiff appeals.