The herald., 1898-02-15

building was a legal demand. In regard
to the nuisance of oil wells near the AL
pine street school the board decided tC
notify the city attorney that the COM
plant was not based upon sanitary
grounds but the work of the school was
Interfered with by the noise of drilling
and pumping. He was asked to suggest
4 remedy.
THE BRALY MATTER
President Davis handed the following
to the secretary, which was read:
To the Board of Education, Los An
geles, Cal.--Gentlemen: In the matter
s. of the charges preferred by Walter l..
Webb, a member of your body, against
j. II. Braly. also a member of your
body, which charges were referred by
you to the municipal reform committee
of the League for Better City Govern
ment for investigation, this commit
tee would respectfully report:
The question before the committee
was one not involving the determine
tion of facts, but of law. A copy of
the charges was placed in the hands
of Messrs. H. Il. Lee and w. ]. Hun
saker attorneys for the league in this
case, with instructions to prepare an
opinion which would serve as a basis
for the further action of the commit
tee in this matter. The opinion which
has been handed this committee by
their attorneys is herewith submitted
to your board.
While the league is ready to conduct
any investigation warranted by the
facts presented, yet, acting under the
advice of our attorneys, that the
League for Better City Government
would not be justified in prosecuting the
charges which have been made against
Mr.. Braly," the municipal reform COM
mittee, authorized to act for the league
in these matters, declines, in view of
the legal opinion rendered, to put the
city to the unnecessary expense Of
prosecuting the charges made by Wal
ter L. Webb against j. II. Braly.
Respectfully submitted.
lSigned)
BURT ESTES HOWARD.
Chairman.
Los Angeles, Cal, February IA, 1898.
LOS ANGELES. CAL, Feb. s. 1898.
Messrs. Burt Estes Howard. Charles
Forman and G. w. Parsons, commit
tee of the League for Better City Gov
ernment-Gentlemen: Concerning the
charges which have been made against
MI. j. II. bTdly, ii fIlGlilDeI VI tuc DOdIu
of education of this city. there are two
questions involved:
l. Are the acts done by the bank. of
which Mr.. Braly is president. such as,
under the provisions of section 73 of
the city charter of Los Angeles, author
ize the board of education to remove
Mr.. Braly from mis- position as a men,
ber of such board?
2. Are the acts done by the bank such
as render Mr.. Braly liable to criminal
prosecution, by virtue of section 923 Of
the political code and section Il of the
penal code?
1t is our opinion that the acts done
by the bank are not such as would au-
ithorize the board of education to re-
move Mr.. Braly and deprive him of his
seat in such board. The two principal
reasons which justify this conclusion
are:
/. Because the transactions in which
the bank engaged and out of which it
secured benefit were not contracts
made by the board. The contracts be-
tween the board and the individuals
were at an end. The individuals had
performed their respective contracts;
such performance had been accepted,
and the claims had been duly allowed.
The board had nothing more to do with
the contracts; and, as far as 1t is con-
cerned. the contracts were at an end
when the claims Hereunder had been
allowed. In other words, the contracts
had all been fully executed. The only
interest which the bank of which Mr..
Braly was an officer secured was an
interest in the proceeds of these fully
executed contracts, and the rule that
member of the board cannot be in
terested in contract made by the
board has never been extended so as
to include an interest in the proceeds
of such contract after it's execution.
In. all the cases, without exception,
the contracts to which the rule is ap-
piled are contracts made with the
board in which the member has a di-
rect interest, because he is the party
contracting, or an indirect interest, be-
cause he is member of a firm or
stockholder in II corporation which Is
the contracting party.
The second reason why this section
of the city charter does not contemplate
transaction of this kind is because the
reason for the rule does not and cam
not exist in this case; and, where the
reason for a rule ceases, so does the
rule itself cease. The only reason
which has ever been assigned why a
member of the board of education
should not be interested directly or in
directly in a contract made with the
board is that, as a member of the
board, the individual is an agent of
the school department occupying po-
sition of trust and confidence. Stand
ing thus in fiduciary position, where he
must show the greatest fidelity, the law
forbids him from dealing with the board
in his individual capacity. 1t is be-
cause of the mere conflict of personal
ders such contract void, irrespective
of whether 1t Is fair or not.
interest with trust obligations that rem
Now, in this case, the contracts made
by the board. as has been shown, were
at an end. The board had done the
final act which it is possible for it to do
with respect to the original contracts
which it made. AS the board can do
nothing, an individual member of the
board could do nothing; consequently,
with respect to any proceeds of that
contract, the member Is, under no trus-
tee duty to the school department. be-
cause one cannot be trustee of prop
erty in which the cestui que trust has
no interest. There can, then, be no
possible conflict between personal in
terest on the one hand and trustee duty
on the other. No reason, therefore,
does exist which would bring these
transactions within the class of those
forbidden by the city charter; and,
since no reason exists, the rule itself,
in accordance with a well recognized
maxim of the law, also ceases.
1t is further submitted that the acts
committed by the bank are not such as
would render Mr.. Braly liable to GRIM
inal prosecution, inasmuch as such acts
were the acts of the hank and not of
Mr.. Braly. If Mr.. Braly personally, or
by an agent, had purchased the war
rants in question. then the act would
have been his, and he would have vio-
lated the sections of the political and
the penal codes above mentioned. But