« ForrigeFortsett »
now before us disclose that about the time
made by officers who, at the time, were authorized to act for the government, and was consummated according to the forms of pro cedure then recognized as essential. It was undoubtedly the duty of Congress, as it was its purpose in the various statutory enact ments it has made in respect to Mexican titles, to recognize and establish every title recognized his acts as creating equitable and right which before the cession Mexico rec-obligations on the part of the government, ognized as good and valid. In other words, in harmony with the rules of international law, as well as with the terms of the treaties of cession, the change of sovereignty should work no change in respect to rights and titles; that which was good before should be good after; that which the law would enforce before should be enforceable after the cession. As a rule, Congress has not specifically determined the validity of any right or title, but has committed to some judicial tribunal the duty of ascertaining what were good and valid before cession, and provided that when so determined they should be recognized and enforced.
and attempted to consummate the sales by
What powers did the intendant possess at Of course in proceeding under any partic- the time this sale is alleged to have taken ular statute the limitations prescribed by place? It is conceded by the government that statute must control; and whatever *may that by the ordinance of December 4,1786 (at be the obligations resting upon the nation which time Mexico was a province of Spain), by virtue of the rules of international law the intendants had full authority in reference or the terms of a treaty, the courts cannot to the sale of lands. Article 81 of that pass beyond such limitations. In the case of ordinance (Reynolds' Spanish & Mexican Hayes v. United States, just decided, 170 U. Land Laws, p. 60) is as follows: S. 637 [42: 1174], we called attention to the Art. 81. "The intendants shall also be fact that in the act creating the court of pri-judges, with exclusive jurisdiction over all vate land claims there was a prohibition upon matters and questions that arise in the the allowance of any claim "that shall not ap- provinces of their districts in relation to the pear to be upon a title lawfully and regularly sale, composition, and distribution of crown derived from the government of Spain or and seignioral lands. The holders thereof, Mexico, or from any of the states of the Re- and those who seek new grants of the same, public of Mexico having lawful authority to shall set up their rights and make their apmake grants of land," and pointed out the plications to said intendants, who, after the difference between this statute and those con- matter has been duly examined into by an strued in the Arredondo Case, 6 Pet. 691 attorney of my royal treasury, appointed by [8: 547]; and the act of March 3, 1851, con- themselves, shall take action thereon, in acsidered in the Peralta Case, 19 How. 343 [15: cordance with law, and in conjunction with 678]. We held that under the act of 1891 their ordinary legal advisers. They shall the court must be satisfied, not merely of the admit appeals to the superior board of the regularity in the form of the proceedings, but treasury, or, should the parties in interest also that the official body or person assuming fail to employ that recourse, submit a report to make the grant was vested with authority, thereto, together with the original proceedor that the exercise of power, if unwarranted, ings, when they consider them in condition was subsequently lawfully ratified. We are to issue the title. The board shall, after exnot to presume that, because certain officials amination thereof, return them either for ismade a grant, therefore it was the act of the sue of title, if no correction is necessary, or, Mexican government and to be sustained. It before doing so, for such other proceedings as must appear that the officials did have in the opinion of the board are required, with the power, and we are not justified in resting the necessary instructions. In the meantime, upon any legal presumption of the existence and without further delay, the necessary conof power from the fact of its exercise. firmation may be made, which said superior board shall issue at the proper time, proceeding in this matter, as also the intendants their deputies and others, in accordance with the requirements of the royal instructions of October 15, 1754, in so far as they do not conflict with these, without losing sight of the wise provisions of the laws therein cited and of law 9, tit. 12, book 4."
While this is true, yet when the statutes and ordinances defining the powers and duties of an officer are somewhat indefinite and general in their terms, and that officer was in the habit of exercising the same power as was exercised in the case presented, and such exercise of power was not questioned by the authorities of Mexico, and grants purporting to have been made by him were never challenged, there is reason to believe that the true construction of the statutes or ordinances supports the existence of the power. Cases
It is, however, contended that prior to the transfer of title in this case this authority was taken away from the intendant. In support of this contention four matters are
referred to by counsel: 1. The adoption of
ficers would simply have to respond to new superiors, and that is all.
Nor do we think that the re-establishment! of the Constitution, even if the re-establishment of that instrument carried with it the re-enactment of the law of the Cortes of January 4, 1813, put an end to the office of intendant, or wholly abrogated his powers. So far as the act of January 4, 1813, is concerned, while it did authorize the distribution of part of the lands on account of military service, it still provided that half of the public and crown lands should be reserved to serve as a mortgage for the payment of the
"The governor intendants shall resume all the powers appertaining to them before the promulgation of the Constitution, so called; and shall consequently exercise said powers, as well in matters of government as in those of economy and litigation relating to the royal treasury, agreeably to the laws and ordinances respecting intendants."
Clearly thereafter the intendants had the powers given them by the ordinance of 1786. Sabariego v. Maverick, 124 U. S. 261 [31: 430].
Of these in their order, though it may be well here to note that the colonization law was not passed until after the sale in controversy had taken place. On March 18, 1812, in the midst of troub-national debt, and recognized the disposition lous times in Spain, a Constitution (Reynolds, of such lands by the "provincial deputation," p. 79) was adopted, and by it and the law of as it was called. Turning to the Constitu the Cortes of January 4, 1813 (Reynolds, p. tion we find the following provisions in chap83), it is insisted that a different mode of ter 2, article 324: "The political governdisposing of the public lands was created. ment of the provinces shall reside in the suAs, however, this continued in force only un-perior chief appointed by the King in each til May 4, 1814, when the King, Ferdinand one of them." "Article 325: "In each prov VII., returned to the throne and issued a ince there shall be a deputation called decree refusing to recognize the existing order provincial, to promote its prosperity, preof things and declaring the Constitution of sided over by the superior chief." Article 1812 revoked, it would seem that the powers 326: "This deputation shall be composed of theretofore vested in the intendants were re- the president, the intendant, and seven memestablished. Indeed, on December 28, 1814, bers elected in the manner that shall be the King issued a royal cédula or edict, the stated." While it may be that under the ninth article of which is as follows (2 White, terms of these and subsequent articles the New Recopilacion, p. 168): general control over the affairs of a province was vested in the provincial deputation, of which deputation the intendant was to be one member, we find nothing in them that either put an end to the office of intendant or had any other effect than to subject his actions to the control of the provincial deputation. The question is not what the provincial deputation when organized would do, but whether the mere re-establishment of the Constitution, which provided for a provincial deputation, operated before any action taken under it, to put an end to the powers thereOn December 23, 1818, a resolution passed tofore vested in the intendants. It may by the council of the Indies, at Madrid, and well be that in thus arranging for a new sysapproved by the King, provided that all busi- tem of control, without abolishing the office ness pertaining to the alienation of lands in of intendant, but on the contrary, in terms New Spain should belong to the department of recognizing its continuance, the purpose was the office of the treasury of the Indies at not to create an interim in which no person Madrid. Hall, Mexican Law, p. 76, § 188. should have power to act for the government In March, 1820, Ferdinand VII., under in the alienation of its lands, but that the inpressure from the people, adopted the tendant should continue to exercise the Constitution of 1812 and took an oath powers he had theretofore exercised until the to support it. Did this resolution of King should appoint a superior chief, and the December, 1818, or this re-establish- other members of the deputation be elected. ment of the Constitution, or both together, The very next year witnessed the separaput an end to the power of the intendants in tion of Mexico from the kingdom of Spain respect to the sale of lands? Clearly the On February 24, 1821, a declaration of inresolution of December, 1818, would not have dependence was made in the form known as that effect. The mere placing of the control the plan of Iguala, and this declaration of over land matters in a particular government independence was made good by the surrendepartment at Madrid would in no manner der of the city of Mexico on September 27, affect the powers of local officers until and 1821. The 15th section of this plan provided unless such department should so order, and that "the junta will take care that all the there is no suggestion that any orders to that revenues of departments of the state remain effect were ever issued. The resolution would without any alteration whatever, and all the have no more effect on the powers of local employees, political, ecclesiastical, civil, and officers than would a transfer of the land military, will remain in the same state in department of this government from the con- which they exist to-day." Prior to that time, trol of the Secretary of the Interior to that of and on August 24, 1821, what is known as the the Secretary of the Treasury. The local of- treaty of Cordoba was signed at that village 171 U. S. U. S., Book 43. 10
by General Iturbide, for Mexico, and Viceroy | fifteen days since the 24th of December."
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.
O'Donoju, for Spain, the latter, however, Reynolds, p. 99. *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, anl could not have been continued in force there, unless expressly recognized by the Mexican congress.
And also More v. Steinbach, 127 U. S. 70,
*It is doubtless true that a change of sover-
Again, the original ordinance of intendants provided for an examination of the proceedings by "an attorney of my royal treasury." The proceedings had in this case were referred to the promoter fiscal, such being the name of the legal adviser of the treasury department, 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 a decision of such adviser that the proceedings
"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."
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 intendants, in the *cases and matters that severally belong to them, in conformity with their ordinances, without any variation in them." Reynolds, p. 96. On January 16, 1822, it ordered that, until the next august national congress fixes the system of public revenues, the intendants should remain as they are, except 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
with the contracts upon the entry of new col- cree the following provisional law for the pur-
comprehensive report of the amounts that
"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."
The language of this decree is very signifi-
It may be assumed that these require-
cree of 1824.
We are not insensible of the fact that the
these transactions the several states had
We pass, therefore, to a consideration of
tances, and courses and distances control
same time, that, continuing the measurement
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 calchased, 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, resultfor. 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 folbows:
"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 water and several banks of arable land which can be made use of by cultivation."
"In the ancient abandoned place of San The direction for the almoneda or offer of
ing on the spot assigned by the claimant as "The promoter fiscal of this treasury has
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: