
    THE BOARD OF EDUCATION OF THE CITY AND COUNTY OF SAN FRANCISCO, Trustees, etc., v. JAMES L. FOWLER et als.
    
    The deed, executed August 3d, 1858, by the Commissioners of the Funded Debt of San Francisco to the Board of Education of said city, in pursuance of the Act of April 26th, 1858 (Stat. 1858, 341) of certain lots in said city set apart by said Commissioners in 1852, at the request of the Common Council, for school purposes, which lots were embraced in the deed of 1850 by the city to the Commissioners of the Sinking Fund, vests such a title in the Board of Education as to maintain ejectment against parties claiming under the city, by force of possession on the first of January, 1855, and the Van Ness Ordinance and the Act of 1858 confirming it.
    This deed of the Commissioners passed whatever interest the city possessed in the premises, the city having by its previous acts assented to the reservation for schools of these school sites. The Commissioners themselves not objecting to the Act of the Legislature, but accepting and acting upon its provisions, and having large powers of discretion to be exercised for the benefit of the city, third persons, other than creditors holding the funded bonds of the Commissioners, cannot question the validity of the deed; and even such creditors cannot question the deed, except by direct proceedings to subject the property to the purposes of the trust. They cannot interpose any objections to the deed in an action of ejectment founded upon it.
    The deed of the Commissioners of the Sinking Fund of San Francisco to the Commissioners of the Funded Debt, executed in pursuance of the Act of May 1st, 1851, did not pass all the real estate of the city, but only such property as was embraced in the deed by the city to the Commissioners of the Sinking Fund.
    The execution by the City of San Francisco of the bonds authorized by the Funding Act of May 1st, 1851, in pursuance of and to give effect to the Act, amounts to an acceptance by the corporation of the Act of the Legislature in all its parts; and this would be sufficient to give validity to the entire Act if, by force of the legislative will alone, the Act, as a conveyance of the property of the city, would not be effectual.
    The purpose and effect of the Act in this aspect of it, that is, as a conveyance or the authority for a conveyance of this city property, are that it is a conveyance to the Commissioners of this property upon certain express trusts, to be used only for such trusts; and the title to return to the city upon the fulfillment of the trusts. If the debts were paid by the city, or the creditors released their claims, the property would become again the property of the city in full ownership. The legal title, as in other cases of trust deeds for the security of debt, was in the grantee, the equity of redemption and the residuum after the satisfaction of the trust debts in the city. The city could still sell or dispose of this residuary interest, could take care of and preserve the estate—perhaps could go in possession of it, subject only to the superior right of the Commissioners, so long as the debts were unpaid.
    The effect of the Van Bess Ordinance was to release to actual possessors, who were such on the first of January, 1855, the title and interest of the land so possessed. This interest was only the equity—in other words, the title subject to the trusts in favor of the city’s creditors—of such property as was conveyed by the deeds to the Commissioners of the Sinking Fund and the Commissioners of the Funded Debt; and parties holding under the Ordinance, hold, as to the property conveyed in these deeds, in subordination to this trust, just as the city itself holds.
    
      People v. Bond, (10 Cal. 563) holding the Funding Act of 1851 to be a contract, and therefore that the Legislature could not withdraw the property conveyed in the deed to the Commissioners of the Funded Debt from the creditors of the city taking bonds under the Act, affirmed.
    The City of San Francisco, under the Charter of 1851, had the power, by resolution of the two Boards of Aldermen, to reserve the lots in question from sale and keep them for school purposes, subject only to the superior title of the Commissioners of the Funded Debt; and the fourth section of the Act of 1858, validating the Van Bess Ordinance, so far as it mentions property reserved and set apart for school sites, was intended to embrace such property as was reserved and set apart by resolution of the two Boards.
    The lots so set apart or reserved by the city for its own uses did not pass, under the Van Bess Ordinance, to a person in actual possession of the same on the first of January, 1855.
    This reservation of the lots for school purposes was not a sale or disposition of them so as to pass to third persons the interest of the city, but was simply a reservation of the lots for a particular town purpose.
    If such reservation were an attempted sale, then there would be great force in the argument that such sale could only be by ordinance in the form of a law, and not by mere resolution. 
      
      Hubbard v. Sullivan (18 Cal. 508) shown not to conflict with the principles decided here.
    The Board of Education of the City and County of San Francisco is a legal body, capable of suing for lots conveyed to them by the Bund Commissioners.
    The suit of the Gity of San Francisco v. E. Heydenfeldt et al., involving a portion of the lot sued for here, is no bar to this suit, for the reason, among others, that there is no final judgment in that case—the judgment for plaintiff in the Court below having been reversed on appeal and the cause remanded, and no trial having been had since.
    Even if there were a final judgment in that case in favor of defendant, it would not bar a subsequent suit by plaintiff here holding the title of the city and the Bund Commissioners, because the decision in that case may have been, and probably was, based upon the ground that the title was in the Commissioners.
    A quit-claim deed in 1854 from B., who claimed under a Colton grant, releasing the grantor’s title to the city, does not prevent a recovery by plaintiff in this suit, as such deed neither shows nor tends to show that the city had no other title, nor does it impair the effect of the previous acts of the city in favor of the Board, or the acts of the Bund Commissioners.
    The Bunding Act of 1851 gives considerable discretion to the Commissioners in the execution of their trust, and directs that discretion to be exercised for the benefit of the city; and an arbitrary exercise of this authority, by such partial discriminations as would throw the whole burden upon particular' portions of this property thus affected, even if legal, is not to be anticipated. Whether, in the exercise of this power, the public interest involved in the freeing of large masses of city property from such burthens, by some equitable apportionment of the common charge, would not be for the public interest, is a matter which addresses itself to the consideration of those interested, and which this Court is not called upon to decide.
    Appeal from the Fourth District.
    Ejectment for lot number three hundred and one in San Francisco. The material facts are stated in the opinion of the Court; but it deemed proper to add a few particulars.
    Defendants relied, besides the other grounds of defense, upon a Colton grant of the premises, dated December 25th, 1849, to one Boyd—it being admitted that defendants held by regular chain of conveyance from Boyd; that he was in possession at and before the date of the grant, and that he and bis grantees had been in possession ever since. It was also admitted, in this connection, that at the date of the grant, there was an organized Town Council or Ayuntamiento in and for the town of, San Francisco, consisting of twelve members, and an Alcalde as its presiding officer, which held its regular meetings for at least three months before and after December 25th, 1849, and exercised the functions pertaining to such body and officer; that J. C. Colton was at that time Justice of the Peace, and executed various grants of land in the form of and including the one now presented by defendants; that after said grants were made, and when brought to the knowledge of said Town Council and Alcalde, they protested against them.
    The proceedings of the Town Council repudiating such grants, as found on pages nineteen, twenty and twenty-one of Wheeler’s Land Titles in San Francisco, were also admitted in evidence. The Court did not pass upon this point.
    Defendants relied, also, upon the Van Ness Ordinance; and upon the suit of San Francisco v. Elcan Eeydenfeldt, decided in the Supreme Court at the October term, 1857, as a bar. This suit was ejectment, brought June 2d, 1854, for a portion of the lot in controversy. Defendant answered, admitting his possession, and alleging tenancy under J. L. Fowler, one of the defendants here, who was permitted to come in and defend. Fowler denied plaintiff’s title. On the trial, the city proved confirmation of the lot to her by the Land Commissioners, and rested. To show'title out of the city, defendants proved the various ordinances numbers forty-nine, sixty-seven and one hundred and twelve, of the Common Council, and the deed thereunder from the city to the Commissioners of the Sinking Fund, and the deed from them to the Commissioners of the Funded Debt, under the Act of May 1st, 1851, and rested. Plaintiff then proved the act or resolution of the Fund Commissioners of May 15th, 1852, reserving, granting and setting aside this lot number three hundred and one, among others, for school houses. Further facts relative to this suit appear in the opinion. Defendants also contended that the property in question being devoted, under the Funding Act of 1851, to a special trust, to wit— payment of the city’s debts—neither the Fund Commissioners nor the city could divert it by setting it apart for school purposes.
    The deed from Boring to the city, referred to in the opinion, was a simple quit-claim, dated February, 1854, of a part of the lot, reciting $10,500 as the consideration paid by the city. Boring was the vendee of Boyd under the Colton grant.
    
      The case was tiled before a referee, and on his report judgment was rendered for plaintiffs. Defendants appeal.
    
      Gregory Yale, for Appellants.
    I. The first point made by the appellants is, that the questions involved were decided by this Court at the October term, 1857, in the case of The City of San Francisco v. Elcan Heydenfeldt. We say in respect to that: 1st. That the parties are the same or privies. The Board of Education, as plaintiffs, claim title to this lot through the city and the Fund Commissioners, by virtue of the action of the Board in setting aside this property by their resolution of the seventeenth of September, 1852; and by the resolution of the Council of the fifteenth of September, 1852, requesting this action of the Commissioners; and of the further resolution of the Council of the fourth of November, 1852, approving the act of the Commissioners.
    The further claim of title by the present plaintiffs under the fifth section of the Act of April 26th, 1858, p. 342 of Session Acts, directing the Commissioners to execute to the plaintiffs a deed “ to all the lots heretofore set apart and granted by said Commissioners, or said city, to and for the use of public schools,” does not change the source of title, or give character to the claim, beyond that made by the city in the Heydenfeldt case, at least so far as the appellants are concerned.
    1st. The plaintiffs being the same, so are the defendants. Heydenfeldt was only the tenant, and defended as such. Fowler, the landlord, was allowed to defend in that case. He is the identical defendant here who has the benefit of that judgment.
    2d. The property is the same, the identical lot three hundred and one. It is true that in that case only a portion of the lot was included; but the same portion is included in this. The whole lot could not have bpen the subject of a suit then, because the largest and most valuable part of it had been previously purchased in 1854 by the city, from the common grantee, Boyd, under Boring, and the city was then in possession of it.
    3d. The questions are the same. The Court passed directly on the legal effect of the action of the city and the Commissioners, by the two resolutions of the fifteenth of September and the fourth of November, of the former, and the resolution or deed, if it be so called, of the latter, of the seventeenth of September.
    II. The reservation of this property for school purposes, by the city, was an act of legislation, and could only be done by ordinance, and not by resolution, supposing her to have owned the property at the time. 1st. The dedication for school purposes was necessarily a governmental act. 2d. This involved an act of legislation. 3d. Legislation could only be had by the passage of laws, which term is synonymous with ordinances. (McCracken v. The City of San Francisco, 16 Cal. 591.)
    This distinction between ordinances and resolutions is known in State legislation and municipal legislation. The same rules apply, with this difference, that the mode of legislation pointed out in the charter of a corporation is purely restrictive, and must be followed. Perhaps the State might commit itself by resolution, where no law was required; but the Common Council, under such a charter as that of 1851, could not.
    III. Neither the Commissioners nor the city had any power to set apart this particular property.
    1st. Under the Act of the first of May, 1851, the Commissioners could only sell or lease at public auction. (McCracken v. The City of San Francisco, supra.) The Commissioners might have leased this lot at public auction, and the city might have become the lessee, for the term pending the trust, or a shorter term, and then by ordinance appropriated it to any special purpose.
    2d. The property being devoted to a special trust, it could not be diverted. Such an act would have been against public policy. The defendants, as tax payers, have a right to make that question. Anri the title in the plaintiffs being derived from public agents, it is competent for a defendant in ejectment to object to the introduction of all evidence from such a source, when it clearly establishes an excess of authority in conferring title, or a want of power to divest the public. The defendant is required to do it, for the principal is not bound by the illegal act of the agent. Take the ordinary case of an individual, claiming title executed by an agent under a power of attorney. The power is introduced and found to be defective, as containing no authority to execute a deed. Is it to be said that the defendant cannot raise that question ; but that it is one for the principal and agent to settle ? Leonard v. Darlington, 6 Cal. 123, is an authority on this point. If defective deeds should be admitted without objection, none could have been made to the deed in that case. The objection went to the question of authority as to the mode of executing a trust. If we could object to the defective execution of a power, we could object to the want of power itself. The question is, whether title could be transmitted. We say it could not, because the agent had none to transmit, beyond the special purpose for which he held it. The act was absolutely void, and we have a right as against a party asserting title, under that void act, to say so. The city is estopped after the solemn act devoting this property to pay her creditors, from trying to get it back again and diverting it for another purpose.
    IV. The title of the defendants, under the Van Ness Ordinance, is a perfect one against the city and those claiming under it.
    This point need not be argued. The recent cases before this Court render any discussion unnecessary. The only reservation is in section fourth, relating to the property which the city had set apart for sites for school houses; not what the Commissioners had set apart. If the city has not legally set apart this lot for that purpose, then the ordinance takes effect, for the possession has been uninterrupted from a period anterior to the twenty-fifth of December, 1849.
    The only other question under this ordinance is, whether this property, included in the deed to the Fund Commissioners, could be the subject of that law. If it could not, then it could not be the subject of the dedication claimed—for that, dedication was permanent, to last as long as the gift to the party in possession—so that the city can make nothing by the objection that the Van Ness Ordinance violates the contract; she only claims through such a violation. To the creditor it matters little, if the property can be divested, whether it be to aid in keeping up a patronage system of free schools, so called, or whether a citizen is permitted to continue to occupy it, he being in possession when the contract was made, of which the creditor was bound to take notice before accepting the security. At all events, any and every disposition of this property, either by the city or the Legislature, would be liable to the paramount claim of the creditors under the deed, if the city had the title at the time of creating the trust.
    V. The defendants have title, under their grant, from the city prior to the trust. The city had taken no action to prevent grants by that officer before the execution of this grant—the grantee then being in possession. The granting power was not then exercised by any other officer. He was a defacto officer, claiming the right to issue grants, not then denied. His Mexican predecessors unquestionably exercised the power in the pueblo, and many titles exist under it. He was acting under the Mexican law at the time, not then superseded in any way but politically.
    VI. The' Act of 1851 does not authorize the resignation of the Commissioners of the Funded Debt., All such resignations and appointments without the consent of the creditors are void. The rule is this: a trustee cannot discharge himself from liability by resigning ; he must be discharged either by virtue of the provisions of the instrument of his appointment, or by order of a court of equity, or by consent of all interested. (Cruger v. Halliday, 11 Paige, 314, cited in 4 Kent, 348, 9th Ed., 316*.)
    
      S. W. Holladay, for Respondents.
    I. The legal title of the premises passed to the Commissioners of the Funded Debt by the deed, in 1851, from the Commissioners of the Sinking Fund, and remained in them until they conveyed it to plaintiffs by deed in August, 1858, in pursuance of the Act of April 26th, 1858.
    II. Defendants took no title by virtue of the Van Hess Ordinance and their possession in January, 1855, because, first, the title was not in the city at the passage of the ordinance, but in the Fund Commissioners; second, this lot is one of the class “ reserved ” by the city from the grant of that ordinance under section four thereof. This lot was set apart and reserved from sale by resolution of the city, and also by resolution of the Fund Commissioners in 1852, and hence was never sold ; and this action of the city and the Commissioners, whether legal or not as a disposition or sale of the lot, suffices to indicate the intention of these bodies, and this intention was made effective by the Act of 1858, authorizing a deed by the Fund Commissioners to plaintiffs.
    III. The deed from Boring cannot prejudice plaintiffs’ right to recover, because, 1st, there is no evidence that the city was a party to it—it may have been executed and recorded without her knowledge or consent; 2d, the legal title was in the Fund Commissioners at the time, and no act of the city could prejudice their title, nor the rights of plaintiffs, who claim through a conveyance from the city of a date prior to the deed from Boring; 3d, the deed is a mere quit-claim from a trespasser.
    IV. The suit of The City of San Francisco v. E. Heydenfeldt does not bar plaintiffs. Plaintiffs in that suit failed for want of a deed from the Fund Commissioners; in this case plaintiffs have such a deed.
    V. Plaintiffs have power to sue. (Consolidation Act of 1856, secs. 5, 6, 32, 33 ; Act of 1858, 341 ; Act of 1859, 156, 326.)
   Baldwin, J. delivered the opinion of the Court

—Field, C. J. and Cope, J. concurring.

Ejectment for a lot in San Francisco.

Questions of importance to the city of San Francisco are involved in the propositions made in this cause. The facts are these. This lot originally belonged to the city or pueblo of San Francisco. It was embraced in the deed made in. 1850, in pursuance of ordinances of the city, numbered forty-nine, sixty-seven and one hundred and twelve, creating the Sinking Fund, which deed the city executed to certain parties styled Commissioners of the Sinking Fund. In May, 1851, an act was passed by the Legislature entitled “An Act to Authorize the Funding of the Floating Debt of the City of San Francisco, and to Provide for the Payment of the same.” Certain persons, styled Commissioners of the Funded Debt, were appointed to receive and collect the moneys to be raised by said act. The twelfth section of the act is as follows :

“ Section 12. The Commissioners of the Sinking Fund, created by ordinance of the Common Council, are hereby required to convey to the Commissioners of the Funded Debt of the city of San Francisco, created by this act, on their application therefor, all the property, and all the rights, titles and interests in property belonging to said city: and to pay over into the hands of said Commissioners any funds, notes, securities or other assets belonging to said city which they may have received, or may hereafter receive, by virtue of article third of an act entitled “An Act to Incorporate the City of San Francisco,” approved the fourteenth of April, 1851; said Commissioners shall have the right, at such time and place as in their discretion the interest of the city may require, to expose at public sale or to lease the property to be conveyed, as provided in this section, and they shall apply the proceeds of such sale or lease to the liquidation of the floating debt of said city.”

It seems that by the tenth section, the provisions of the charter requiring Commissioners of the Sinking Fund to deliver titles, etc., to the Common Council, was repealed.

The sixth section of the Act of 1851 provides, “ that the commissioners shall, also, after discharging the trusts for which they are herein appointed, convey and restore to the city of San Francisco all the property, titles and assets belonging to the same and remaining in their possession.”

On the twenty-fourth of May, 1851, the Commissioners of the Sinking Fund executed to the Commissioners of the Funded Debt a deed of conveyance of the city property, including this lot.

The Consolidation Act passed April 19th, 1856. The Van Ness Ordinance was confirmed by the Legislature on the eleventh of March, 1858 ; the ordinance was passed on the twentieth of June, 1855. Its provisions will be found in the appendix to Hart v. Burnett (15 Cal. 627). By the fourth section of that act, the city reserves to itself all the lots which it has already set apart for sites for school houses. On the fifteenth of September, 1852, a resolution was passed by the Common Council requesting the Commissioners of the Funded Debt to set aside lots for school, hospital and engine houses; and on the seventeenth day of the same month, the Commissioners of the Funded Debt set aside certain lots—this among them—for schools, etc. November 4th, 1852, the Common Council passed another joint resolution, ratifying and confirming the action of the Fund Commissioners in assigning and setting apart lots for school houses.

On the twenty-sixth of April, 1858, an act was passed by the Legislature, entitled “An Act Granting Certain Powers to the Board of Education of the City and County of San Francisco.” The fifth section of this act is as follows :

“ Section 5. The Commissioners of the Funded Debt of the city of San Francisco, and their successors, or any three of them, shall be, and are hereby authorized, empowered and required to make, execute and deliver to the said Board of Education, trustees as aforesaid, and in trust as hereinbefore provided, good and valid deeds and conveyances of all the right, title and interest of the city, or city and county of San Francisco, and of the said Fund Commissioners, in and to all the lots heretofore set apart and granted by said commissioners, or said city, to and for the use of public schools in said city and county, whenever said Board of Education shall request the same to be made out and delivered.”

The Commissioners of the Funded Debt, on third of August, 1858, purporting to act under this statute, executed a deed to this Board of this lot.

This deed of the Commissioners passed whatever interest the city possessed in the premises—the city having, by its previous acts, assented to the reservation for schools of these school sites. The Commissioners themselves not objecting to the Act of the Legislature, but accepting and acting upon its provisions, and having large powers to be exercised for the benefit of the city, third persons, other than creditors holding the funded bonds of the Commissioners, cannot question the validity of the deed ; and even such creditors cannot question the deed, except by direct proceedings to subject the property to the purposes of the trust. They cannot interpose any objections to the deed in an action of ejectment founded upon it.

It is not deemed necessary to go, in this connection, into any inquiry as to the title of the defendants.

The deed of the city to the Commissioners of the Sinking Fund may be left out of consideration.

We have held in Heydenfeldt v. Hitchcock, following the early decision in Smith v. Morse, that this deed is void as a transfer of the property of the city. (See 15 Cal. 514.) And if it were not, the execution of the deed by those commissioners to the Commissioners of the Funded Debt, under the Act of 1851, divested them of whatever title they could have acquired by the deed of the city to them. This left the property so conveyed in the Commissioners of the Funded Debt. A question has been made whether, under the peculiar terms of the Act of ,1851, all the real estate of the city, whether conveyed or not in the deed to the Commissioners of the Sinking Fund, was not designed to pass to the Commissioners of the Funded Debt. We think this is not the true construction. 1. Because it is most reasonable to construe the clause in the Act with reference to the matter for which it was enacted. 2. Because it is not reasonable to suppose that the Legislature meant to make a title in the city pass by a deed of these Commissioners who never had the title or any connection with the subject. 3. It is unreasonable to suppose that the city was to be divested “ of all her rights, titles and interests in the property of whatever kind,” including debts, chattels, money and credits of all sorts, for the benefit of the creditors for whom the deed was to be executed. 4. Because the whole scope and reason of the act show only a purpose to transfer the property, first conveyed to one set of commissioners, to another set; and the general words, used in the first member of section twelve of the act, are to be taken in connection with the matter going before, and also with the succeeding member of the same sentence, which last clause itself shows that the conveyance was to be only of property the title of which was, really or apparently, in the parties who were ordered to make the conveyance.

But as to the property which had been conveyed by the city to these Commissioners of the Sinking Fund, the Act of 1851 and the conveyance following it took effect. We have already indicated the general principles which govern such conveyances, and our opinion of the powers of the Legislature over such subjects. We understand that the execution by the city of the bonds authorized by this Funding Act, in pursuance of, and to give effect to this act, amounts to an acceptance by the corporation of the Act of the Legislature' in all its parts; and this would be sufficient to give validity to the entire act, if, by force of the legislative will alone, the act, as a conveyance of the property of the city, would not be effectual. The purpose and effect of the act in this aspect of it— that is, as a conveyance or authority for a conveyance of this city property—are clearly indicated upon the face of it. The express language of it is, that it is a conveyance to the Commissioners of this property upon certain express trusts, to be used only for such trusts; and the title to return to the city upon the fulfillment of the trusts. If the debts were paid by the city, or the creditors released their claims, the property would become again the property of the city in full ownership. The legal title, as in other cases of trust-deeds for the security of debt, was in the grantee; the equity of redemption and the residuum after the satisfaction of the trust debts in the city. The city could still sell or dispose of this residuary interest, could take care of and preserve the estate—perhaps could go in possession of it, subject only to the superior right of the Commissioners, so long as the debts were unpaid.

The effect of the Van Hess Ordinance was to release to actual possessors, who were such on the first of January, 1855, the title and interest of the land so possessed by them. This interest was only, as we said before, the equity—in other words, the title subject to this trust—of such property as was conveyed in these deeds before referred to. But, according to the construction which we gave the Funding Act of 1851, (see People v. Bond, 10 Cal. 563) the act itself was a contract, (and especially would this be the case if the deed was executed according to the provisions of the statute) and having, in all its essential features, the constitutional protection of contracts. It would not, therefore, be within the power of the Legislature to withdraw this property from the creditors, who took their bonds partly on the faith of the security afforded by it for the payment of their debts, unless they assented to such withdrawal. It is true that the act gives a large discretion to the Commissioners as to mode and time of sale or lease of the land, and seems to make the exercise of this discretion dependent upon their sense of the interest of the city of San Francisco; but this is not inconsistent with the trust for the creditors—which is, indeed, in the same sentence expressly declared. Hor does the Van Hess Ordinance profess to divest the title of the Commissioners. It conveys only the right, title and interest of the city of San Francisco. Those who hold under this ordinance, therefore, as to such property as was conveyed in the deeds referred to, hold in subordination to the trust— just as the city, through whom they claim, so held.

But we have seen that the city was not divested of all interest and right in this property, charged, though it was, with this general trust. It could make any disposition of this interest which it chose, within its chartered powers. It could sell the land or reserve it from sale, or lease, subject only to the superior title of these Commissioners holding it for the purpose of the trust; such disposition, while it could not bind them, would bind her; and the grantee of the city would stand in her shoes and represent her title. By the ordinance, fourth section, (Statutes of 1858, 53) “ the city reserves to itself all the lots which it now occupies or has already set apart for public squares, streets and sites for school houses, City Hall and other buildings belonging to the corporation; and also such lots and lands as may be selected and reserved for streets and other public purposes, under the provisions of the next succeeding sections.” Now, it is objected, that the acts of the city authorities purporting to reserve the property are invalid, because the title to the real estate of the corporation could only be transferred, at the time of the passage of these resolutions, by ordinance in the form of a law, as required by the charter, and not by a resolution. If this were an attempted disposition of this property, so as to pass from the city her interest in it, there would be great force in this argument. But it is not. It is a mere reservation—a withholding from sale—a declaration of unwillingness to dispose of the property. The School Department of the municipality is only a part of its government. A reservation of property for school purposes is not a disposition of it for the benefit of third persons, but a keeping of it for its own purposes. The resolution amounts only to a setting apart of property of the town for a particular town purpose, and in this respect is not different from a similar act, if such had been done, declaring that the Plaza should be reserved as a public garden, or a lot for a jail, or a house for the holding of Courts. We do not see anything in the charter of 1851 which inhibits the Common Council from making such a reservation. As the property could only be sold by the city by the act and consent of the two Boards, it would seem that the express refusal to sell, in the form of a res- . olution by those Boards, reserving the property for a particular corporate purpose, would be sufficient to show, at least, that the property was still retained, claimed and held by the city. The fourth section of the Act of 1858, validating the Van Ness Ordinance, when it speaks, therefore, of property reserved and set apart for school 'sites, was intended to embrace such property as was reserved and set apart by resolution of the two Boards.

These lots, so set apart or reserved by the corporation for its own uses, did not pass, under the Van Ness Ordinance, to a person who might have been in actual possession of the lots in 1855. To suppose that the city so intended would convict its officers of the inconsistency of declaring by its two Boards that the lots should be reserved to the use of the schools, and then making, by ordinance, a gratuitous disposition of them in favor of third persons. And, besides, it would imply the folly or criminality of giving away the public property, which it was necessary should be held for an important public purpose, and to secure which the corporate authorities had all along shown themselves to be justly solicitous. Evidently the Legislature regarded these resolutions as the acts of the city, and that these acts reserved or set apart these lots for school purposes. (See Acts of 1855, 53, 342.) The acts of the city were not referred to as valid or invalid acts of themselves, but as acts indicating the purpose of the city authorities in respect to these reservations, and the Legislature meant to give effect to such purposes.

This is not inconsistent with anything we held in the recent case of Hubbard v. Sullivan. We held there that a possession by the direct permission of the city, before the passage of the Van Ness Ordinance, was such a possession as protected the possessor against any claim arising from a previous occupancy of the premises by a claimant who, at the time of such occupancy, was a mere trespasser ; and that the city, having the equity of redemption, might have entered upon the property and used it, subject only to the paramount claim of the Commissioners of the Funded Debt, holding the legal title; and that a party, entering without objection under. her, could not be disturbed in that possession by a third person, any more than the city through whom he claimed. But such possession, it is obvious, would not be effectual as against the claim of the Commissioners, who, as we have seen, held the property in priority to the city for the purposes of the trust recited in the Act of 1851.

It has been seen that the Van Hess Ordinance confirmed the previous acts of the City Council, making, or purporting to make, a reservation of these school sites for the benefit of the city; and that this reservation was assented to by the Commissioners of the Funded Debt. This course of conduct, by which this claim was asserted and consistently maintained on the part of the city for so long a time, when it is taken in connection with the assent of the Commissioners that the city should hold and use this reserved property, we think sufficient to authorize it to take possession, and to maintain an action, especially against one making no further claim than that under the city.

We have reached the conclusion that the title to recover, founded upon the facts already considered, is in the plaintiff.

It remains to consider the technical matters, set up by the appellants in defense of this action.

1. It is urged that the Board of Education is not a body or legal person capable of suing ; but this point is answered by the act.

2. It is ui’ged that the suit of The City of San Francisco v. E. Heydenfeldt, which involved a portion of this lot, is a bar or defense to this proceeding. Judgment was recovered below for the icity in this suit, but on appeal here, judgment was reversed, and ■cause remanded. Besides that the facts of that case are not the -same as those here—the plaintiffs there not having the title here .set up—there is no final judgment; the opinion of the Supreme 'Court having no further effect than to affirm certain principles of ¡law, which, indeed, might be conclusive in their application to the •same facts and between the same parties, as to that suit, but which ¡have no effect immediately upon the property as a judgment affirming or disaffirming title upon substantially different facts or in a ■different proceeding. The case, so far as appears, has never been ■tried since the decision here, and even if the parties were the same as those to this record, and even if all the property was the same, this Court or the Court below would not be bound to give more than the weight of authority to this decision. Indeed, the very ground of that decision may have been—we presume was—that the title was in the Fund Commissioners, and therefore, the plaintiff there could not recover. Even if a final judgment affirmed the asserted principle as law, and the Court or jury found the facts in connection with the principle, this would be no answer to a subsequent suit by a plaintiff who stood on the title of the city and the Fund Commissioners.

3. Nor does the deed from Boring to the city create any impediment to the plaintiff’s recovery. This was merely a quit claim, releasing the grantor’s title to the city ; but it does not show or tend to show that the city had no other title—much less does it impair the effect of the previous acts of the city in favor of the Board, or the acts of the Fund Commissioners.

It may be remarked, that the Act of 185Í gives considerable discretion to the Commissioners in the execution of this trust, and directs that discretion to be exercised for the benefit of the city. It is scarcely to be supposed that an arbitrary exercise of authority, by such partial discriminations as would throw the whole burden upon particular portions of this property thus affected, would, even if legal, be done. Whether, in the exercise of this power, the public interest involved in the freeing of large masses of city property from such burdens, by some equitable apportionment of the common charge would not be for the public interest, is a matter which addresses itself to the consideration of those interested, and which we are not called upon to decide.

We have thought it best to meet these questions fully, as they arise upon this record and concern the public interest.

Judgment affirmed.  