Mr. Justice Heydenfeldt concurred. Mr. Justice Terry dissented.
In Burgoyne v. The Supervisors of San Francisco County, 5 Cal. R., we held that the Legislature could not confer other than judicial functions on the Courts of Sessions, and consequently that the ajitejppted purchase of land, in that case, was a nullity, and the county not liable upon the contract.
The plaintiffs in this case have resorted to a different remedy, and by a bill in equity seek to enforce a specific performance of the original contract, on the ground that it has since been ratified by “ the supervisors,” a body legally competent to act on the subject.
As evidence of a ratification, the plaintiff relies upon certain acts of the supervisors in the care, management and disposition of the property.
It is now contended that the original contract was not void, but only voidable, and therefore the subject of ratification. A distinction is instituted in the books, between that which is void and that which is voidable, the former of which is held to embrace such acts as are against good morals or public policy. Now although, in the abstract, there is nothing which would render a contract like the present obnoxious to either of these objections, still, it cannot be denied that it is competent for the law-making power to establish such rule as it may think proper on the subject; and the Constitution of this State having inhibited such contracts, by declaring that they shall not be made by judicial officers, they necessarily are void; because in contravention to the organic law of the land, established for wholesome and wise purposes.
To contend that a law is unconstitutional and not void, would involve a legal solecism and the paradox of an inferior agent of the Government setting aside the solemn mandates of the Constitution by an act of ratification.
If, then, the original act was void, the ratification was equally void. But conceding, however, that the original contract was not void, but only voidable, I do not think the acts relied on in this case amount to a ratification in fact.
The supervisors, in coming into office, found this property in possession of the county. It was their duty to take care of and preserve it, *541and they are not legally hound by such acts. To charge them, it should be shown that they acted with a full knowledge of all the facts. Nay, more; we are satisfied that a deliberative body, like the board of supervisors, cannot be bound by acts in pais, but that the best and only evidence, of its acts and intentions is to be drawn from the record of its proceedings.
This conclusion renders it unnecessary to consider whether the acts of the supervisors can be considered as * new and independent purchase, because not properly evidenced.
In addition to what has already been said, it may be further remarked that, at the time of the sale, there was no person, natural or artificial, in esse, capable of taking the grant, and that the same was void, for want of competent parties.
Judgment reversed.