The herald., 1898-06-05


the contract of January 4. 1869. conferred
upon Arnaz and his associates, and that
were assignable by them
Complainants urge another ground in
support of the contract, namely. that If it
was made without original authority on
the part of the city, it has been subsequent
ly validated by the act Of April 2, 1910,
which, so far as material here, is as fol-
lows
Section I. The following acts, con-
tracts and ordinances of the mayor and
common council of the city of Los Angeles
are hereby ratified and confirmed. The
contract and lease for the care and MAIN
tenance of the Los Angeles City Water
works, entered into and made between the
mayor and common council of the city of
Los Angeles, on the one part, and John s.
Griffin, Prudent Beaudry and Solomon
Lazard, on the other part, dated the twen-
tieth (2O) day of July, eighteen hundred
and sixty-eight QS6S); and also the ordi
nance confirmatory of the same, passed
July the twenty-second (22d), eighteen
hundred and sixty-eight QS6S). which con-
tract and ordinance are recorded in the
office of the county recorder of Los Angeles
county, in book one of miscellaneous rec
ords, pages four hundred and twenty
eight, (42S) to four hundred and thirtyone
(431) = - Statutes of California,
1S69-70. PIP. 635-6.)
Defendants argue, that the effect of said
act If operative, would be to confer a
franchise on the Los Angeles City Water
company, and, therefore, the act is VIOLA
tive of that provision Of the constitution of
the state, then in force, prohibiting the
creation of private corporations by special
act, citing Turnpike Co. vs. Cole, II
Cal. ISL, San Francisco vs. Spring
Valley w. W., As Cal, 493, and other cases.
The provision of the constitution referred
to, section 81. article 4, is as follows:
Corporations may be termed under gen.
eral laws, but shall not be created by spe-
cial act except for municipal purposes"
This argument of defendants seems to me
to be unsound. Assuming, for the purposes
of said argument, that the city of Los An
geles was not originally authorized to
| make the contract of July the 22d, 1868,
still think that the equivalent of such
authority was supplied by said act of
April the 3D. 1870 and said contract there
by made as valid as it would have been had
full authority existed from the outset.
Whatever a legislature may originally au-
| thorize, it can, If the constitution under
| which it exists interposes no obstacle,
subsequently ratify, and such ratification
is equivalent to an original grant of power,
operative, by relation, as of the date of the
thing ratified. This, according to all
authorities, is the theory and effect of
| ratifying act.
Qualification as 1t relates to the law of
agency is the express or implied adoption
of the acts of another by one for whom the
| other assumes to be acting, but without
authority; and this results as effectually
| to establish the duties, rights and liabiii-
ties of an agency as if the acts ratified had
been fully authorized in the beginning"
| Gam. and Eng. Ency. of Law, I'd ed, vol.
| 1, p. ISL
by the ratification of the unauthorized
act the relation of principal and agent,
with all the rights and duties incident
thereto. Is as fully established as If the
authority had been conferred originally;
the ratification relates back to the time of
! the performance of the acts, as eX-
pressed in the familiar maxim: Omnis rati-
| habitio retrotrahitur ct mandate priori
aequiparatur," Qdem., p. 1913, that is,
| Every subsequent ratification has a ret
respective effect. and is equivalent to
prior command" Il Bouviers Law Die
tionary, p 220)
Again, it has been said: "Until ratification
no liability to principal exists; but after
ratification liability relates back to the time
when the obligation was undertaken. In
other words, to adopt the exposition of an
eminent German commentator, when an
agent undertakes an act for another person
| the legal character of the act remains unde-
termined until such other person decides
whether or no he will ratify. The contract
| is not void, but occupies the same position
as one that is conditional The third party
contracting is bound from the time of the
institution of the contract, and not merely
from that of the ratification. The agent
lcannot, even in this intermediate period,
release the third party from liability. A
fortiori such release is not worked by the
intervening death or other incompetency
of the agent. y
ut has just been noticed that the prr-
cipal by the act of ratification, puts him
self in his agents place. From this 1t fol-
lows that the ratification acts retrospective
lly: and nowhere is this more unhesitating-
" expressed than in the Roman law The
principal so that law assumes, puts him.
self. by the ratification, back into the peri
cd in which the contract was executed.
= "(Wharton on Agency and Agents,
secs. &c and 10
In Grenada Co., vs.. Brown, 112 U. S.
261, the court said:
"Since what was done in this case by the
constitutional majority of qualified electors,
and by the board of supervisors of the coun-
ty. would have been legal and binding upon
the county had it been done under
legislative authority, previously con-
ferred. it is not perceived why subsequent
llegislatiye ratification is not, in the alb
sence of constitutional restrictions upon
such LEGISLATION, equivalent to original au-
thority."
Further. In the same case, the court
quotes from Sykes VS.. Mayor, IS Miss, 1877,
as follows:
1.-THE idea implied In the ratification of
municipal act performed without previous
legislative authority Is, that the ratifying
communicates authority, which relates
back to and retrospectively WHITES and le-
galizes the act, as if the power had been
previously given. Such statute Is OF the
same import as an original authority"
| See also Grogan VS.. San Francisco, IL CAL,
500: McCauley VS.. Brooks. Is Cal. q; Ralphs
VS.. Hensler 81 CAL, 296; Zottman VS.. City
| of San Francisco, 20 Cal, 81; and Taylor
vs. Robinson, IA Cal. 1856.
From these authorities it results, that
| the act of April the I'd. 1870 is, in legal
| contemplation, the same as an act con-
| ferring power originally upon the city to
| make the contract with Griffin and his as