Sidebilder
PDF
ePub

So that long after the sale here in question was made the government of Mexico recognized the office of intendant as continuing, and no statute or ordinance appears which in terms at least took away from that officer all control over the sales of public lands.

by General Iturbide, for Mexico, and Viceroy | fifteen days since the 24th of December." O'Donoju, for Spain, the latter, however, Reynolds, p. 99. [229]*having no previous authority from Spain, and this treaty was by Spain afterwards repudiated. This treaty provided that "the provisional junta was to govern for the time being in conformity with the existing laws in everything not opposed to the plan of Iguala, and until the Cortes shall form the It is contended that the mere change of constitution of the state." Immediately af- sovereignty revoked all authority to make ter the surrender of the city of Mexico a pro- sales of the public lands, and United States visional council or junta, consisting of v. Vallejo, 1 Black, 541 [17: 232] is cited, in thirty-six members, was created under the which it was held that the decree of the plan of Iguala, which assumed the control of Spanish Cortes of 1813, in relation to the disthe government, and on October 5, 1821, this position of the crown lands, was inappliprovisional council promulgated the follow-cable to the state of things which existed in ing order (Reynolds, p. 95): Mexico after the revolution of 1820, ani could not have been continued in force there, unless expressly recognized by the Mexican congress.

"The sovereign provisional council of government of the empire of Mexico, considering that from the moment it solemnly declared its independence from Spain all authority for the exercise of the administration of justice and other public functions should emanate from said empire, has seen fit to habilitate and confirm all authorities as they now are in conformity with the plan of Iguala and the treaty of the village of Cordoba, for the purpose of legalizing the exercise of their respective functions."

That the office of intendant was one of those continued in existence by this order is clearly shown by the decree of September 21, 1824, creating the office of commissary general. Reynolds, p. 123. Its first two articles are:

"Art. 1. So far as concerns the federation, the officers of general and local depositories, and all revenue employees that have been retained by the federation, are discontinued.

"Art. 2. From the intendants and other discontinued officers the government shall appoint, in each state where it appears necessary, a commissary general for the different branches of the exchequer, public credit, and war."

And also More v. Steinbach, 127 U. S. 70, 81 [32:51,55], in which it was observed that"The doctrine that the laws of a conquered or ceded country, except so far as they may affect the political institutions of the new sovereign, remain in force after the conquest or cession until changed by him, does not aid their defense. That doctrine has no application to laws authorizing the alienation of any portions of the public domain, or to officers charged under the former government with that power. No proceedings affecting the rights of the new sovereign over public property can be taken except in pursuance of his authority on the subject."

It is doubtless true that a change of sover[231 eignty implies a revocation of the authority vested by the prior sovereign in local officers to dispose of the public lands. And yet we think that rule is not controlling in this case, for the new sovereign made an order continuing the functions of the local officers, and one of those local officers making a sale in accordance with the provisions of the prior laws caused the money received therefrom to be paid into the treasury of the new sovereign, and that sovereign never returned the money thus received or challenged the validity of the sale thus made. This is not a case in which the local officers attempted to dispose of public lands in satisfaction of obligations created by the former sovereign, but one in which a sale was made for money, and that money passed into the treasury of the new sovereign.

Prior thereto, and on October 24, 1821, the provisional council passed an order declaring that the office of superintendent general of the treasury was not necessary, and added, "and in consequence, has decided that the duties of the superintendency be performed, as your excellency proposed in your said report, by the directories general of the revenues, the officers of the treasury and inten[230]dants, in the *cases and matters that severally belong to them, in conformity with their or- Again, the original ordinance of intendants dinances, without any variation in them." provided for an examination of the proceedReynolds, p. 96. On January 16, 1822, it or-ings by "an attorney of my royal treasury." dered that, until the next august national The proceedings had in this case were recongress fixes the system of public revenues, ferred to the promoter fiscal, such being the the intendants should remain as they are, ex-name of the legal adviser of the treasury decept those who are reappointed and have, in their former offices, had a higher salary than that the intendants of Sonora and Pueblo now have." Reynolds, p. 98. And on February 2, 1822, it directed that "a report of the receipts of the treasuries since independence was sworn to be forwarded by the intendancies of the empire; and a statement of the receipts and disbursements of the last

partment, who approved them. So we have presented the case of a sale made by an officer who at one time undoubtedly had power to make a sale, who was directed by the original ordinance creating his office and estab lishing his powers to refer his proceedings to the legal adviser, a reference of the proceedings had by him to such legal adviser and decision of such adviser that the proceeding

with the contracts upon the entry of new col- | cree the following provisional law for the pur-
onists, and to examine as to how far those chase of the lands of the state." Subsequent
already entered into have been complied with. | legislation of the state is in the same line.
"4. The executive shall have the power to Further, §§ 8 and 9 of article 161 of the
take the lands he may consider suitable for national Constitution of 1824 made it the
fortifications and arsenals, and for new col-duty of each Mexican state:
onies, and shall give the states credit for their "To present annually to each one of the
value on the accounts they owe the federa- houses of the general congress a minute and
tion." Reynolds, p. 148.
comprehensive report of the amounts that
are received and paid out at the treasuries
within their limits, together with a statement
of the origin of the one and the other, and
touching the different branches of agricul
ture, commercial and manufacturing indus-
And also,

The language of this decree is very signifi-
cant, and clearly recognizes some title in the
states, for why should commissioners be au-
thorized to contract with the legislatures of
the states for the purchase of lands which be-
longed to the nation? It also clearly recog-tries," etc.
nizes the right of the states to sell these va-
cant lands and apply the proceeds in settle-
ment of the demands made against them by
the general apportionment of the revenue law
of 1824. It declares that the executive may
take the lands he considers suitable for forti-
fications, arsenals, and for new colonies, and
at the same time provides that he shall give
the states credit on the amount they owe the
confederation. But why should any credit
be given if these lands so taken by the ex-
ecutive where the property of the nation, and
the states without authority to sell them or
receive the proceeds of sales? If during
all these years the lands were the property of
the nation, were to be held and sold only by
the nation, and the proceeds thereof to be ac-
counted for directly to the nation, why should "In the first place, we observe that the law
it be decreed that if the nation takes any part has received the implied sanction of congress.
of them for arsenals and other public pur-It was adopted in 1859. It has been upon
poses, credit for the value thereof is to be en-
tered upon the amounts due by the states to
the nation? We find it difficult to escape the
force of this decree of 1830. It indicates that
although the language of the revenue decree
of 1824 is indefinite, and does not in terms
name vacant public lands, yet both the nation
and the states understood that its effect was
to grant authority to the states to sell such
lands and appropriate the proceeds in settle-
ment of the amounts charged against them
[286]by the nation. We see no other way in which
to give reasonable force to the language of
this decree of 1830, and it must be held to be
a national interpretation of the revenue de-
cree of 1824.

"To forward to the two chambers (of the federal government) and when they are in recess, to the council of the government, a certified copy of their constitutions, laws, and decrees."

It may be assumed that these requirements of the national Constitution were complied with, and that the constitutions, laws and decrees of the state and the proceedings had in reference to these several sales of land were reported to the congress of the nation. We find no act of that congress setting aside such legislation or sales. This is significant,[287] and it is not inappropriate to refer to Clinton v. Englebrecht, 13 Wall. 434, 446 [20:659, 662], in which it was said:

the statute book for more than twelve years. It must have been transmitted to congress soon after it was enacted, for it was the duty of the secretary of the territory to transmit to that body copies of all laws, on or before the first of the next December in each year. The simple disapproval by congress at any time would have annulled it. It is no unreasonable inference, therefore, that it was approved by that body."

We are not insensible of the fact that the provisions of the act of September 21, 1824, creating the office of commissary general, an act which we had occasion to consider in Ely's Administrator v. United States, 171 U. S. 220 [ante, 142] seem to make against the But we are not limited to this authoritative idea of the administration of vacant lands by national exposition of the meaning of the rev- the states, and it is difficult to work out from enue law of 1824. The testimony in the sev-all the statutes a consistent, continuous, and eral cases of a similar nature now before us, harmonious rule. We must in each case enincluding therein the reports of the officers deavor to ascertain what the Mexican gov of this government sent to examine the ernment recognized as valid, and when that archives of Mexico, discloses that the state is done the duty of respecting and enforcing of Sonora at least assumed that the revenue the grant arises. Other matters are referred act of 1824 authorized its disposal of the va- to by counsel in their briefs, but it would cant public lands, and acting on that as-needlessly prolong this opinion to refer to sumption did in a multitude of cases make them. Our conclusion is that at the time of sales thereof. In this connection it may be these transactions the several states had observed that the Constitution of the state authority to make sales of vacant public of Sonora, or State of the West, declares, ar- lands within their limits, and that such sales, ticle 47, that the right of selling lands be- unless annulled by the national government, longs to the state. This Constitution bears must be considered as grants to be recognized date May 11, 1825. Law No. 30 of that by this government under the terms of the state, of May 20, 1825, the law referred to by treaty of 1853. the treasurer general in the expediente, recites that "the congress has seen fit to de

We pass, therefore, to a consideration of the effect of the decrees of Santa Anna. The

tances, and courses and distances control | same time, that, continuing the measurement
quantity, but where there is uncertainty in
specific description, the quantity named may
be of decisive weight, and necessarily so if
the intention to convey only so much and no
more is plain."

along the cañon (because it was impossible to
go in any other direction on account of the
roughness of the ground), by reason of the
many turns that had to be made, so many
cords should be deducted from the total
number measured as would be calculated to
result in excess of the *real length measured,[236
taken on a straight line, and considering
his demand reasonable I ordered the con-
tinuation of the survey as follows, to wit.

We think this case comes within the rule thus stated. The defendant in his answer alleges that the grant comprises 12,147.69 acres, while counsel for the government say that the measurements given by the surveyor make the area 22,925.87 acres. The amount of land appraised, advertised, sold and auc"And in view of the suggestion made by tioned off was one and three quarter sitios the claimant to reduce the number of cords (7,591.61 acres). While, of course, any slight actually measured so much as might be caldiscrepancy between the area of the survey culated to be in fact in excess of the true and that ostensibly sold might be ignored, measurement by reason of the many turns of yet the difference between the amount which the cañon over which the survey was made, as was understood to have been sold and the it could not be carried on straight, I apamount now found to be within the limits of pointed for that purpose Lieutenant Don the survey is so great as to suggest the pro- Manuel Leon and the citizen Don Jose Ma. priety of the application of the rule laid down Sotelo who were unanimously of the opinion in Ainsa v. United States, supra. There can to deduct twenty-five cords out of the three be no doubt from the record of the proceed- hundred and twelve cords measured in the ings that one and three quarter sitios was all last survey down the cañon, the claimant conthat the purchaser supposed he had pur-senting thereto as just; the survey was cal[235]chased, all that the intendant supposed he culated to be two hundred and eighty cords, had sold, and all that was advertised or paid with which this survey was finished, result for. The original petition, after stating that ing from it one sitio and three fourths of anthere was a place known as San Jose de other sitio, registered by Don Leon Herreros Sonoita, declared that the petitioner for raising stock and for farming purposes." registered "in the aforesaid place two sitios The appraisers reported as follows: of land," which he desired to have surveyed, and to pay therefor the just price at which it might be valued. The petition therefore was not for any tract known by a given name, but for a certain amount of land in such place. The report of the survey is very suggestive. We quote from it as fol-water and several banks of arable land

bows:

"In virtue thereof they said that according to and because of the examination they had made and being aware of the existing regulations on the subject, the price should be fixed at, and they fixed it at, sixty dollars for each sitio, because they have running

which can be made use of by cultivation."

"In the ancient abandoned place of San The direction for the almoneda or offer of Jose de Sonoita, on the 26th day of the month sale was of the lands "composed of one sitio of June, 1821, I, the said lieutenant com- and three fourths of another." The first almander and subdelegate of the military post moneda was of lands "comprising one sitio and company of Tubac and its jurisdiction, in and three fourths of another. and order to make the survey of the land de- appraised in the sum of one hundred and five nounced by Don Leon Herreros of this dollars, at the rate of sixty dollars per sitio." vicinity, delivered to the appointed officials The property put up for sale was lands "com■ well twisted and stretched cord, and in my prising one sitio and three fourths of another, presence was delivered to them a castilian appraised at one hundred and five vara, on which cord were measured and dollars, at the rate of sixty dollars each counted fifty regulation varas, and this be- sitio." The report of the promoter fiscal ing done, at each were tied poles, and stand-opens with this statement:

[ocr errors]

ing on the spot assigned by the claimant as "The promoter fiscal of this treasury has the center, which was in the very walls of the examined carefully the expediente of the already mentioned Sonoita, there were lands surveyed in favor of Don Leon Hermeasured in a northeasterly direction sixty-reros, resident of the military post of Tubac, three cords, which ended at the foot of some by the Commissioner Don Elias Ygnacio low hills, a little ahead of a spring-a chain Gonzales, lieutenant *commander of the[237] of mountains of a valley which goes on and post, in the place called San Jose de Sonoita, turns to the east, where was placed a heap in that jurisdiction, from which resulted one of stones as a monument; and being about sitio and three fourths of another, for raising to return to the center, the claimant ex-stock and horses, valued at sixty dollars each pressed a desire that the survey should be sitio, which sums up one hundred and five continued down the cañon until the two sitios dollars, as it has running water and some should be completed, that on each side we pieces of land fit for cultivation." should survey to him only twenty-five cords, because if the survey should extend further, by reason of the broken-up condition of the country and the rocky hills in sight, such land would be useless to him, saying, at the

Subsequently to this report the direction was made for three public auctions, which were made, and the record of the first auction, the others being similar, is in these words:

[292]

ROBERT PERRIN, Appt.,

v.

STATES, Crittenden
Cattle Company, et al.
(See S. C. Reporter's ed. 292.)

Land &

Camou v. United States, 171 U. S. 277 [ante,
163], followed.

[No. 30.]

determination of rights created during peace- for. The decree of the Court of Private Land ful and regular eras. The devestiture of Claims will be reversed, and the case remandtitles once legally vested is a judicial act. ed for further proceedings. In governments subject to ordinary constitutional limitations a mere executive declaration disturbs no rights that have been vested, and simply presents in any given case to the judicial department the inquiry whether the rights claimed to have been UNITED vested were legally so vested. Undoubtedly this government dealing with Mexico, and finding Santa Anna in control, rightfully dealt with him in a political way in the negotiation of a treaty and the purchase of territory, and the judicial department of this government must recognize the action of its executive and political department as controlling. But when the courts are called upon to inquire as to personal rights existing Argued March 16, 17, 1898. in the ceded territory, a mere declaration by the temporary executive cannot be deemed absolutely and finally controlling. It is unAPPEAL from a decree of the Court of 91 necessary to rest this case upon the fact dis- Private Land Claime decreeing that the closed that these decrees of Santa Anna were claim of the plaintiff, Robert Perrin, to a immediately thereafter revoked. It is not tract of land formerly in the state of Sonora significant that the substance of them was in the Republic of Mexico, but now in the thereafter re-established. We are compelled territory of Arizona, known and designated to inquire whether prior to such decree there as the Rancho San Ygnacio del Babocomari, were rights vested, rights which the Mexican described in his petition, is invalid, and disgovernment recognized, and then determine missing the petition. Reserved, and case rewhether those rights were by such decree ab-manded for further proceedings. solutely destroyed.

31, 1898.

Decided May

The facts are stated in the opinion.

Messrs. Byron Waters, John T. Mor gan, and J. H. Meredith for appellant. Messrs. Matthew G. Reynolds and John K. Richards, Solicitor General, for appellee. Mr. Justice Brewer delivered the opinion of the court:

Turning to the decree of November 25, 1853, the first and second articles are mere declarations of law. The third article directs the officials to proceed to the execution of the decree and to recover and take possession of the lands coming within the scope of the prior articles. It does not appear that any steps were taken by any officials to carry into execution this decree. Whether this So far as the question of title is concerned particular grant came within the scope of the this case is similar to the one immediately two declarations of law was a question to be preceding. (Camouv. United States, 171 U. Š. considered and determined. On that ques- 277 [ante, 163]). For reasons therein stated tion the grantee never was heard. There the decree of the court of private land claims never was a judicial adjudication that his will be reversed, and the case remanded for grant came within the scope of the first two further proceedings. It is true, as suggested articles. He was never dispossessed. His in its opinion, the court of private land property was never taken possession of. It is claims thought that there was no sufficient going too far to hold that the mere declara- location of the tract in controversy, and that tion of a rule of law made by a temporary probably the grant was void for uncerdictaor, never enforced as against an individ-tainty in the description of the property. It ual grantee in possession of lands, is to be may be that this conclusion was right. At regarded as operative and determinative of the same time, in view of what has been rethe latter's rights.

As for the reasons heretofore mentioned we are of opinion that a valid grant was made in this case, we think this arbitrary declaration by a temporary dictator was not potent to destroy the title. The decree of the court of private land claims must therefore be reversed. As shown by the statement of facts the survey of the land claimed in the petition is in excess of the four sitios granted and paid for. While the excess is not so great as in many cases, yet we think the rule laid down in Ely's Administrator v. United States, 171 U. S. 220 [ante, 142] should control, and that this government discharges its full duty under the treaty when it recognizes a grant as valid to the amount of land paid

cently said by this court in respect to boundaries, description and area, we think that justice requires that we reverse the judgment and remand the case for further proceedings. Perhaps the claimants may be able to satisfactorily identify a tract not larger than the area purchased and paid for which should equitably be recognized as the tract granted.

of a grant to any area of greater extent than | If the outboundaries disclose a square or any was recognized by the government of Mex-rectangular figure, the excess of area suggests ico. If that government had a right, as we simply a carelessness of measurement, and [240]have seen in Ainsa v. United States *it had, can be corrected by a proportionate reducto compel payment for an overplus or resell tion in each direction. In other cases, the such overplus to a third party, then this gov-location of the waterway, the configuration ernment is under no moral or legal obliga- of the ground, may be such as to enable a tions to consider such overplus as granted, court of equity by its commissioner or masbut may justly and equitably treat the grant ter to determine exactly what was intended as limited to the area purchased and paid to pass under the grant. We do not mean to for. anticipate all the questions that may arise. It may be said that to consider the tract We simply hold that the mere fact that the granted as one not extending to the limits of grant is narrower than the limits of the outthe outboundaries of the survey is to hold boundaries does not prevent the court of prithat the tract granted was not located, and vate land claims from determining through therefore, within the terms of the Gadsden the aid of a commissioner, surveyor, or mastreaty, not to be recognized by this govern- ter exactly what equitably did pass under the ment, as suggested in Ainsa v. United States. grant. It is enough for this case to hold In that case it appeared that while the out-that the powers of the court of private land boundaries of the survey extended into the claims are not narrow and restricted, and territory ceded by Mexico to the United that, when it finds that there is a valid grant States, the grantee had taken and was in for a certain number of acres within the outpossession of land still remaining within the boundaries of a larger tract, it may inquire, limits of Mexico, to the full extent which he and, if it finds sufficient reasons for determinhad purchased and paid for, and therefore no ing the true boundaries of the tract inat was legal or equitable claim existed against the granted, it can so prescribe them, and susUnited States in reference to land within the tain the claim to that extent, re.crring to the ceded territory. land department the final and absolute surIt is also undoubtedly true, as disclosed in veys thereof. In view of these considerathat case, that where there is a mere grant tions, we are of opinion that this grant should of a certain number of acres within specified be sustained to the amount of one and threeoutboundaries there may be such indefinite-fourths sitios, and the judgment of the Court ness as to prevent a court from declaring the true location of the granted lands. And yet it is also true that there may be disclosed by the survey or other proceedings that which will enable a court of equity to determine with reasonable certainty what lands were intended to be granted and the title to which should be established. It must be remembered in this connection that by § 7 of the act creating the court of private land claims, it is provided "that all proceedings subsequent to the filing of said petition shall be conducted as near as may be according to the practice of the courts of equity of the United States." Therefore in an investigation of this kind that court is not limited to the dry, technical rules of a court of law, but may inquire and establisn that which equitably was the land granted by the government of Mexico. It was doubtless the purpose of Congress, by this enactment, to provide a tribunal which should examine all claims and titles, and that should, so far as was practicable in conformance with equitable rules, finally settle and determine the rights of all claim[241]ants. *It will be unnecessarily limiting its

of Private Land Claims is reversed, and the case remanded to that tribunal, with directions to examine and decide whether there be suflicient facts to enable it to determine the true boundaries of the one and three fourths sitios.

UNITED STATES, Appt.,

2'.

FREDERICK MAISH and Thomas Driscoll,
Partners as Maish & Driscoll.

(See S. C. Reporter's ed. 242, 243.),

Extent of Mexican grant.

A Mexican grant should not be sustained by the court of private land claims for pore than the amount purchased, petitioned, and paid for, when all the proceedings contemplated a sale of that quantity only.

[No. 297.]

31, 1898.

Decided May

APPEAL from a decree of the Court of Private Land Claims confirming the title of the petitioners, Frederick Maish et al., to a tract of land in the county of Pima, and territory of Arizona, under a Mexican grant. Reversed, and case remanded for further

powers to hold that it can act only when the Argued March 15, 16, 1898. grant to the full outboundaries of the survey is valid, and is powerless when a tract within those outboundaries was granted. Many things may exist by which the real tract grant ed can be established. In the case before us,if it be possible to locate the central point from which according to the report the survey was made (and we judge from the testimony that it is possible) the actual grant can be estab-proceedings. lished by reducing each measurement there- The facts are stated in the opinion. from to such an extent as to make the area NOTE. As to Missouri private land claims, that of the tract purchased and paid for. see note to Les Bois v. Bramell, 11: 1051.

[242]

« ForrigeFortsett »