« ForrigeFortsett »
7) "The court of private claims rejected the ! 1174); Ely's Administrator v. United States,
claim on the ground that the sale in question 171 U. S. 220 [ante, 142]. ras void for want of power on the part of the The titulo shows that Ignacio Lopez, treas officer attempting to make it.
urer of the department of Sonora, assumed to
make the sale and grant of the lands in ques Mr. Francis J. Heney for appellant. tion, in the exercise of sole authority, ex offiMessrs. Matthew G. Reynolds and John cio, under the decree of February 10, 1842, K. Richards, Solicitor General, for appellee. and article 73 of the law of April 17, 1837, as
being property “pertaining to the department 491 "Mr. Chief Justice Fuller delivered the of temporalities," the value whereof did not opinion of the court:
exceed $500. He asserted the power to deterIn order to the confirmation of any claim, mine, alone, that the lands were of the tempo50]the court of private*land claims, under the act ralities; that their value was not over $500;
ereating that tribunal (26 Stat. at L. 854, and to sell and grant them independently of chap. 539), must be satisfied not merely of the other officials than himself. regularity in form of the proceedings, but The court of private land claims held that
that the official body or person assuming to if the lands belonged to the class of tempo51]make the grant was vested with authority, or ralities it was clear that the treasurer of the
that the exercise of power, if unwarranted, department had no power to make a sale by was subsequently lawfully ratified; and the his sole authority, whether the value exceeded same rule applies to this court on appeal., five hundred dollars or not; and if the lands Hayes v. United States, 170 U. S. 637 [42: did not belong to that class, nevertheless veyor, Don Manuel de Leon, veteran ensign and pears from the information obtained at the inlate commandant of the presidio of Tubac, ac- stance of said departmental treasury, from cording to the information obtained in relation which it also appears that the original titles of thereto at the instance of this departmental grant and confirmation of said temporalities Treasury, said temporal farming and grazing still exist, which temporalities have now been lands being valued in the sum of $500, as pro- Falued at $500 in accordance with article 2d of vided in article 2d of the aforesaid supreme de said supreme decree of February 10, 1842. cree of February 10, 1842; and complying punc- “Whoever desires to make a bid come fortually therewith I have ordered the formation ward and make it to this departmental treas. of the corresponding expediente by the court of ury, where it will be received in conformity first instance and of the treasury of the district with the laws, with the understanding that the of San Ignacio, during which proclamations final sale is to be made now to whomever (pregones, no bidder appeared; therefore, and should be the highest
bidder." In compliance with article 73 of the law of In which act Don Francisco Alexandro Aguf. April 17, 1837, as the sale in question on aclar, a merchant and resident of this port, ap. count of the national Treasury does not exceed peared and made the bid of $500, at which' said $500, this said treasury proceeded to the pub-teniporalities are appraised; and no other bidlie sale of the aforementioned lands of the de- der having appeared and the hour for midday populated Tumacacori and the lands of its prayer of this day having already struck, the stock farm, Calabazas, and other annexed public crier finally said: "Once, twice, three points, all belonging to the department of tem: tinies; sold, sold, sold; may it do good, good, poralities, on the 16th, 17th, and 18th of the good to Don Francisco Alejandro Aguilar. current month of April, in solicitation of bid. In these terms this act was concluded, the ders, without there being any other than Don aforesaid farming lands and lands for raising Francisco Alexandro Aguilar, a merchant and cattle and horses of the depopulated town site resident of this port and village of San Fer- and stock farm of the temporalities of Tumaca, nando de Guaymas, for said sum of $500, the cori and Calabazas being publicly and solemnly appraised value at which said temporalities sold to Don Francisco Alexandro Aguilar, a have been sold, as appears from the third and merchant and resident of this port, for the sum last offer, which literally is as follows:
of $500. Third Seal. One Dollar. Years 1844 and 1845. And in due witness thereof and for the usual
In the port and village of San Fernando de purposes these proceedings were closed and enhundred and forty-four, I, the undersigned, de party in interest and my undersigned attendant partmental Treasurer, being in the office of this witnesses.
Ignacio Lopez. treasury under my charge, with my attendant
Francisco A. Aguilar. witnesses, Don Jose Maria Mendoza and Don Vicente Irigoyen, in the absence of a notary of
Witness: Jose Maria Mendoza. the treasury and of a notary public, in compli.
Witness: Vicente Irigoyen. ance with the provisions of article 73 of the law
In which legal terms was concluded the sale of April 17, 1837, since the price or value of the of the farming lands and lands for raising cat. temporalities to which these proceedings relate tle and horses, which comprise the 4 leagues of do not exceed ive hundred dollars, ordered the depopulated town site of Tumacacori and that the third and last offer be made for the the 2 sitios of its stock farm, Calabazas, and final sale of the temporal lands of Tumacacori other annexed points, all temporalities, situated and Calabazas referred to in this expediente in the jurisdiction of the District of San Ig. and that to that end a proclamation be made nacio, the original expediente remaining de to the public at the sound
of the drum, as, in posited in the archives of this treasury as per effect, the public crier, Florentino Baldizan, petual evidence, with the understanding that made in a high and clear volce, saying: "The when the original titles of Tumacacori and treasury of the department is going to sell, on Calabazas, are obtained, they shall be aggre. account of the national treasury and in accord i gated to the present one. ance with the supreme decree of February 10, Whereas the agricultural lands and lands for 1842, the agricultural lands and lands for rais-raising cattle and horses, which comprise the 4 ing cattle and horses which comprise the 4 leagues of the depopulated town of Tumaca. leagues of the town site of the depopulated cori and the 2 sitios of its stock farm of Cala. town of Tumacacori and the 2 sitios of the de- bazas and other annexed points, all temporali. populated stock farm of the same at the points ties, in the jurisdiction of the district of Sap of Huebabi, Potrero, Cerro de San Cayetano Ignacio, have been sold to Don Francisco Aleand Calabazas, situated in the District of San jandro Aguilar, a resident and merchant of this Ignacio, the areas, monuments, boundaries, and port, for the sum of $500, which sum together conterminous tracts of which are stated in the 1 with the others pertaining to the treasury, he corresponding proceedings of survey executed has paid into this departmental treasury. I, in the year 1807 by the commissioned surveyor, therefore, in use of the powers, the laws on the Don Manuel de Leon, veteran ensign and late matter, as also the supreme decree of the 10th commandant of the presidio of Tubac, as ap- of February, 1842, conceded to me, by the pres
there was the same want of power unler the country or town property belonging to the
The tenth regulation provided that the gesMany of the laws in this regard have been eral department should take an exact pe set forth in United States v. Coe, 170 U. S. count of the number, location, value, condi681 [42: 1195] ; Hayes v. United States, 170 tion, and present method of administration L'. S. 637 [42: 1174]; Ely's Administrator v. of all the property and estates of the Nation, United States, 171 U. S. 220 [ante, 142]; and in which were included those of the inquisiother cases, and the statement of so much tion and temporalities, ard all others that thereof as particularly bears on the matter in belong to the public exchequer, in accordance hand involves some repetition.
with the law of August 4, 1824; should see to By the law of January 26, 1831, a general the thorough collection of the proceeds, as department of revenues was established, un- provided in the law of January 26th and der whose control all branches of the treasury other laws; and should do whatever it oonwere placed, except the general administra- sidered most beneficial in regard to the sale, tion of the mail and of the mint. A general lease, or other means of administration that director and three auditors were provided for, might be advisable, in whole or in part, of the to be appointed by the government, and the property in question.
general department was divided into three Certain regulations were thereafter pre (252)sections * of each of which an auditor was the scribed, and set forth in a circular of July 20,
chief. 2 Dublan and Lozano, Mex. Laws, 308. 1831 (2 Mex. Laws, 351), whereby the com
May 21, 1831, a law was passed creating missariats general were located in the capicommissaries general and commissariats, and tals of certain enumerated states; and, at on July 7, 1831, regulations were issued un designated points in others, that of Sonora der the law of January 26. The first auditor being at Arizpe; but the commissaries, if was made chief of the first section, having they thought a change would be advantacharge, among other things, of “national geous, were required to bring it to the notice property in which is included, under article of the government with their reasons. 9 of the law of August 4, 1824, that of the in- Articles 126 and 127 of these regulations quisition and temporalities, and all other read: ent title and in the name of the Mexican Na divers superior provisions that govern the tion and of the supreme government, formally matter, concede and confer on me, I order and cede, sell, give, and adjudicate the said farming require respectively of the judges, justices. Jands and lands for raising cattle and horses, and local authorities that at present are and which comprise the 4 leagues of the depopulated shall hereafter be in the district of San Ignacio, town site of Tumacacori and the 2 sitios of its that, for the sake of the good and prompt ad. stock farm of Calabazas and other annexed ministration of justice and in observance of the points already mentioned to the said purchaser, aforesaid legal provisions they do not permit Don Francisco Alejandro Aguilar, by way of the said Francisco Alejandro Aguilar bor bis sale, and with all the qualities, solemnities, successors to be, in any manner, disturbed, an firmness, and subsistence the law establishes, noyed, or molested in the free use, exercise, for himself, his heirs, children, and successors, property, dominion, and possession of the sald with all their entrances, exits, lands, timber, agricultural lands and lands for raising cattle groves, shrubs, pastures, centers, circumfer- and horses of the town site of Tumaca corl and ences, waters, springs, watering places, uses, stock farm of Calabazas, but rather shall customs, servitudes, and other tbings pertain- watch and see with the greatest efficacy that ing to said possessions, with their inclosures, they are always protected and maintained in metes and bounds for the sum of $500, at which the quiet and peaceable possession to which they have been sold to said Francisco Alejandro they are entitled by legitimate right, so that, Aguilar, with the precise condition that the in this manner, they may freely have the bene said buyer, and his successors in their case, are fit of, enjoy. possess, sell, exchange. barter. to maintain the above mentioned agricultural donate, transfer, devise, cede, and alienate the lands and lands for raising cattle and horses aforesaid agricultural lands and lands for sale that comprise the 4 leagues of the depopulated ing cattle and horses of the 4 leagues of the town site of Tumacacori and the 2 sitios of its town site of Tumacacori and its stock farm, stock farm of Calabazas populated, possessed. Calabazas, and other annexed points, at their cultivated and protected, without passing be- free arbitrament and election. as absolute yond their metęs and bounds and without their owners and proprietors of said possessions. being totally abandoned: with the understand with the understanding also that just as soon ing that if the said abandonment and depopu: as the original titles of said agricultural and lation of said farming and grazing lands should grazing lands are obtained they shall be aggre take place for the space of three consecutive gated to the present ones, and the transmittal years, by the peglect or fault of their owners or and delvery of said original documents are conpossessors and there should be any person who sidered as made and verified from this moment denounces them, in such erent after verification in favor of said party in interest, Don Fran of the fact, they shall be declared public lands cisco Alejandro Aguilar. and shall be sold at public sale, on account of In which terms I have issued this title of the national treasury, to whomever should be formal sale, transfer, and adjudication to sald the highest bidder, excepting, as is just, those Mr. Aguilar, his heirs and successors, deliver cases where the abandonment, depopulation or ing it to the former for his security and otber lack of protection are on account of the notori- convenient uses, after entry thereof in the ous invasion or hostilities of enemies or epidem- proper place. ics or other like causes, and only for the Given in the port and village of San Fernando period or periods of such occurrences, caution- de Guaymas, on the nineteenth day of the ing as the aforesaid Don Francisco Alejandro month of April, elghteen hundred and fortyAguilar and his successors are strictly cau four, authenticated and signed by me, the tioned that they are to restrict themselves to treasurer of the department, sealed with the the belongings, metes, and bounds of the afore- seal which this treasury uses, before my under said agricultural and grazing lands of the town signed attendant witnesses, in the absence of a site of Timacacori and its stockfarm of Cala notary of the treasury or a notary public, there bazas, constructing and maintaining on said being none, according to law. possessions the necessary monuments of stone
Witness: Jose Diego Labandera.
"126. All purchases, sales, and contracts the notary, who, besidos, shall draw up all made on account of the treasury, whatever other necessary papers. In the absence of a be their purpose, shall be made by the com- notary, a clerk, whom the commissary shall missaries general sitting as boards of sale; bring for the purpose, shall draw up the minbut before convoking them, it shall be abso- utes and the conclusions.” The proceedings lutely necessary to receive first the order were then to be forwarded with a report therefor, either from the supreme govern. thereon to the supreme government, "without ment, communicated directly or through the whose approval the purchase, sale, or contract treasury general, or rather from the directory shall not be carried into effect;" and it was of revenues, when it relates to matters sub- also provided that "when there is evidence jeet thereto.
that any member of the board has bought or 3] *"127. Said board shall hold its sessions in sold at the sale, himself or through a third the room most suitable for the purpose in the persor, the sale shall be void and he shall be commissariats, or in the public place nearest punished with the penalties the laws impose to those offices, and the regular members shall upon those who commit like abuses." be the commissary or subcommissary, who In 1835 the state legislatures were abolshall preside, the senior officer of the treasury, ished and department bodies established; and or the one who acts in his stead, and the at the bases for a new constitution were adopttorney general, where there is one, and each ed, followed by such constitution dividing the ct these employees shall take the place or seat country into departments, the interior to which he is entitled in the order in which government of which was intrusted to the they are named.”
governors in subordination to the general Besides the regular members, it was pro- government. 3 Mex. Laws, 75, 89, 230, 258. vided by article 128 that there should be By a decree of April 17, 1837, the principal special members, depending on the character officer of the general treasury in each deof the sale, purchase, or contract being made, partment was designated as a superior chief as for instance, when it related to the offices of the treasury, and on him and his subordi. or revenues in the federal district subject to nates were conferred by article 92 the powers the directory general, the auditor in charge and duties formerly exercised by the comshould attend; and if subject to any of the missary general and his subcommissaries, "in other departments, the chief clerk of the bu- so far as they do not conflict with this dereau of accounts, etc. If it related to supplies cree, for in that respect all existing laws for army service, the officer appointed by the stand repealed.” 3 Mex. Laws, 363. proper inspector should be present; if to busi- Articles 73, 74, 75, and 76 were as follows: ness pertaining to the artillery arsenals, etc., “73. All the purchases and sales that are the chief officer thereof; if to hospital ser- offered on account of the treasury and exceed vice, the first assistant of the medical corps; five hundred dollars shall we made neces. if to fortitication works, the chief of the corps sarily by the board of sales, which, in the of engineers; and if, finally, to other matters, capital of each department, shall be composed the employee of tne nearest related depart of the superior * chief of the treasury, the de-[2551 ment appointed by the commissary general. partmental treasurer, the first alcalde, the at Timely notice was required to be given to torney general of the treasury, and the auditthe regular and special members of the day or of the treasury, who shall act as secretary. and hour of the sale, which ordinarily should Its minutes shall be spread on a book which be held at 10 o'clock in the morning.
shall be kept for the purpose, and shall be It was also provided that if there was a signed by all the members of the board, and notary public in the place, he should neces- a copy thereof shall be transruitted to the sarily be present at the sessions of the board, superior chief of the treasury, for such purand that whatever was done therein should poses as may be necessary and to enable him be certified to by him, or by two attending to make a report to the supreme government. witnesses, if there was none; that the sales "74. The superior chiefs shall hold mcetor purchases intended to be made should be ings of the boards of the treasury at least published for at least eight days beforehand twice a month, and when they consider it by placards put up in the most public and necessary according to the difficulty and imfrequented places, and also inserted in news- portance of the business. These boards shall papers of greatest circulation, if there were be composed of said chief, the departmental any, care being taken that the notices con- treasurer, the attorney general of the treastained the necessary information about the ury, the principal collector of the revenues matter and its most essential circumstances; and the auditor of the treasury, who shall that when the sale was opened, and the cus act as secretary thereof.
tomary proclamations made, all lawfully “75. The object of the board of the treas. 54 ]made bids should be received *until the day ury shall be to procure the prosperity and of final sale, which should be made “to the increase of the revenues of the treasury, the bidder who olers the most advantages to the most easy and prompt collection thereof, to treasury, as determined by an absolute ma- promote the economies that should be made, jority of the votes of the board, which minuto in expedite such grave matters of difficult andererything that may have occurred et solution as the superior chief may bring to the sale shall be entered on the book, which its knowledge, and to make a report to the the commissary and subcominissaries shall latter of bad management, improper conduct, keep for the purpose, and which the members failure to comply with their duties and other shall sign with attending witnesses or with loniissions of which they may have knowledge,
or may have observed in the employees of the under other pretext shall, in any manner, emtreasury of the department.
barrass the proceedings of the board of sale in "76. The minutes of the board shall be making the sales, but the right of parties in spread on the proper book, which shall be interest to apply to the supreme government, signed by all the members thereof, and ar or to the proper authorities, shall remain inauthenticated copy transmitted to the supo- | tact. rior chief of the treasury to enable him to “Therefore I order this to be printed, pubmake a report to the supreme government, lished, and circulated, and demand that it be when the case requires it.”
complied with.” 4 Mex. Laws, 114. By a law of December 7, 1837, it was made Lopez certified that it was in virtue of this the duty of the governors, among other decree that he had sold the lands in question things, “to preside over the boards of sale as belonging to the class of temporalities, and of the treasury, with power to defer the and as being of a value not exceeding $500, resolutions of these latter until, in the first in which case he assumed that he was anor second session thereafter, the matter under thorized to sell irrespective of the board of consideration is more carefully examined sales in view of article 73 of the decree of into.” 3 Mex. Laws, 443.
April 17, 1837. The argument is that as that Ky article 140 of a decree of June 13, 1843, article provided that all purchases and sales pojit was made the duty *of the governor of each exceeding $500 should be made necessarily
department to publish the decrees of the by the board of sales, therefore all property
December 16, 1841, the office of the supe-boards of sale as the only proper official or. rior chief of the treasury created by the de- gans to accomplish the results desired, and it cree of April 17, 1837, was abolished, and it was this decree that was relied on as justify. was provided that the departmental treasuring the proceedings. If these lands were not ers should continue for the present to per of the temporalities, then the basis of the form the functions of their office as estab- sale utterly failed, as the decree applied only lished by the law creating them, and also to to property of that class, and if of the tem
perform those of the discontinued chiefs of poralities the sales were to be made by the ! the treasury, except such as were assigned to board.
the commandants general, who were to be in- In relation to article 73 of the law of 1837, spectors and visitors of the treasury offices, some further observations may be added. and to see that the public revenues were well The regulations of July 20, 1831, and the and faithfully collected, administered, and law of April 17, 1837, treated of the same disbursed; and to make timely reports to subject matter, and must be read together; the supreme government of what they ob- and prior laws, so far as not conflicting, were served, which should be brought to its atten- expressly saved from repeal by article 92 of tion. 4 Mex. Laws, 75.
the latter act. On February 10, 1842, the following decree *By $ 73, the board of sales was necessarily(258 was issued :
to make sales exceeding $500, but nothing “Antonio Lopez de Santa Ana, etc. was said as to sales for less than that sum.
“Article 1. The boards of sale in the sev- This would seem to have left the law of 1831 eral departments will proceed to sell, at pub- in force in respect of the making and the conlic auction, to the highest bidder, the prop-duct of sales of property having a value beerties (fincas) situated therein that pertain low that amount, and whether the board of to the department of temporalities.
sales consisted of the membership prescribed “2. No bid will be admitted that does not by $ 73, or was composed in some respects of cover the amount considered to be the value a different membership, is not material. of the property (fincas), computed from the While these various laws are rather confusamount of the leases, which shall be con- ing in their number and minuteness, nothing sidered as the interest thereof, at the rate of is clearer than that the power to make sales five per cent.
and grants was vested in the treasury de"3. The bids shall be made for cash, which partment of the nation and governed by shall be paid when the sale is approved, less strict rules and regulations, none of which the amount of the burden imposed on each contemplated that any single officer could property (fincas), which the buyers shall con- make the sales. It is enough that the detinue to recognize with a mortgage thereof. partmental treasurer did not possess the
“4. No action or claim, which the actual power, acting singly and on his own respon
lessors of the property (fincas), in question, sibility, to conclusively determine to what 357]may intend to set up for *improvements or class lands belonged, and their value, and 156
waving decided these points, thereupon to tion, the lands of this pueblo and mission exercise the sole power of sale.
were abandoned, it would seem that they thus Tumacacori, Calabazas, and Huebabi are became a part of the public domain of the said to have been originally separate and dis- nation, and that as such the only laws applitinct pueblos and missions, of which the two cable to their disposal were the laws of the latter were abandoned as early as December, nation in relation to its vacant public lando, 1806, when the native Indians of Tumacacorito which the proceedings in this instance do and the governor of said Indians presented pe- not purport to have conformed or to have titions to the governor and intendente conde been made under them. to give them title in accordance with the We concur with the court of private land royal instructions of October 15, 1754, and of claims that in either *view there was a fatal[ 2009 article 81 of the royal ordinances of December want of power in the departmental treasurer 4, 1786 (alleging the loss or destruction of to make the sale, and it is not asserted in the their old title papers), of the lands embraced petition, nor was any evidence introduced to in the fundo legal and the estancia of each show that his action was participated in or pueblo and mission, whereupon the grant of ratified by the governor, or by the national 1807 was made.
government in any manner. And this is not The titulo refers to some lands acquired by a case in which the sale and grant can be purchase, though the record leaves that mat- treated as validated by presumption. ter entirely vague and uncertain, and declares Decree affirmed. the grant to be made to the pueblo and natives of Tumacacori, that they may “enjoy the use and freely possess at will and for their NORTHERN PACIFIC RAILROAD COM. own benefit in community and individually,
PANY et al., Piffs. in Err., and for the decent support of the church of raid mission, but under the condition that in
PATRICK R. SMITH. Do case and in no manner shall they alienate at any time any part of said lands which are (See S. C. Reporter's ed. 260-276.)
adjudicated and assigned to them, since they Grant to railroad company-extent of occu 59 are all *to be considered as belonging to the
pation. Republic and community of natives alone, for their proper use, as well for so ring purposes as for stockraising and the increased pros
1. The occupation and survey of lands with in.
tent to locate a town site thereon, but with. perity of the same.'
out filing a plat or obtaining the adoption of This was in accordance with the general
the town site or a patent therefor until after rule that the missionaries and Indians only a railroad is located thereon, does not prevent acquired a usufruct or occupancy at the will the land from being a part of the public doof the sovereign. United States v. Cervantes, main for the purposes of a grant to the rall18 How. 553 (15: 484).
road company. Prior to 1829, the tribunal of the inquisi. 2. The fact that only 25 feet in width of its tion had been abolished by the Cortes, and
right of way has been occupied for railroad the monastic and other religious orders sup
purposes, under a grant of 200 feet on each
side of the track, does not prevent a rallroad pressed, and on the 10th of May of that year
company from claiming the full width of the it was ordered, through the department of
grant as against persons who had occupied the treasury, that "the property in which the premises for the purpose of making a consist the funds of the temporalities of the town site location thereof, but had not acex-Jesuits and monastics and the rural and quired a right thereto as against the railroad urban estates belonging to the inquisition” be
company when the road was built. sold ai public sale to the best and highest
[No. 93.] bidder. 2 Mex. Laws, 108. May 31, 1829,
Ordered for the commissary general of Mexico published Argued November 4, 5, 1897. a "list or the urban and rural estates relat
Reargument January 10, 1898. Reargued
March 21, 1898. Decided May 31, 1898. ing to the temporalities of the ex-Jesuits and suppressed monastics with a statement of their values, the burdens they carry, and an
IN ERROR to the United States Circuit nual revenue” (Ibid. 117), which did not in. Court of Appeals for the Eighth Circuit to reclude the lands in question. The depart. view a judgment of that court affirming the mental treasurer did not claim, and manifest- judgment of the Circuit Court of the United ly did not acquire, the power to sell these States for the District of North Dakota, in lands under the order of May 10, 1829, or the favor of the plaintiff, Patrick R. Smith, in an regulations of July 7, 1831, bearing on that action brought by him against the Northern subject.
Pacific Railroad Company to recover the posBy a decree of April 16, 1834 (2 Mex. Laws,
NOTE.—A8 to pre-emption rights, see note to 889), the missions of the Republic were secu: United States v. Fitzgerald, 10 : 785. larized, that is to say, converted from sacred That patents for land may be set aside for to secular uses, and so far as these lands fraud, see note to Milier v. Kerr, 8: 381. could have been regarded as temporalities,
As to errors in surveys and descriptions in that is, profane property belonging to the patents for landı; how construed,-sce note to chrrch or its ecclesiastics, that decree
Watts v. Lindsey, 5:423.
A8 to land grants to railroads, see note to changed their condition.
Kansas P. R. Co. v. Atchison, T. & S. F. R. Co. And, as many years before the sale in ques. 28 : 794.