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v. Wilcox, 12 Wend. 503; Green v. Putchen, I their award, and the submission itself implies 13 Wend. 293; Mooers v. Allen, 35 Me. 276, an agreement to abide the result, even if no 58 Am. Dec. 700; Crooker v. Buck, 41 Me. such agreement were expressed." It was be355; Eddings v. Gillespie, 12 Heisk. 548; cause a submission to arbitration had the Jewell v. Blankenship, 10 Yerg. 439; Muck- force of a contract, that at common law a ey v. Pierce, 3 Wis. 307; Cunningham v. submission by a corporation aggregate was Craig, 53 Ill. 252. required to be the act of the corporate body[172] (Russell, Arbitrators, 5th ed. p. 20); which act was of necessity required to be evidenced in a particular manner.

Mr. Justice White delivered the opinion of the court:

The decision of this controversy involves It is true that an executor, at common two propositions. Did the commissioners of law, had the power to submit to an award. the District of Columbia have the power to But this power arose by reason of the full agree to submit the claim in issue to the don.inion which the law gave the executor award of an arbitrator? And if they did or administrator over the assets, and the full have the power, did they lawfully exercise discretion which it vested in him for the setit? To answer either of these questions it be-tlement and liquidation of all claims due to comes essential to ascertain whether an agree- and from the estate. Wheatley v. Martin, ment to submit to arbitration involves the 6 Leigh, 64; Wamsley v. Wamsley, 26 W. Va. power to contract. Both of the matters above 46; Wood v. Tunnicun, 74 N. Y. 43. Whilst, stated depend upon this last inquiry, because however, the agreement of the executor to a both the claim that the District of Columbia common-law submission was binding upon did not in valid form exercise the power to him, such a consent on his part did not prosubmit to arbitration, and the assertion that tect him from being called to an account by if they so did they were not authorized to the beneficiaries of the estate, if the submisthat end, rest on the claim that the submission proved not to be to their advantage, be[171]sion was not made in the form *required by cause the submission was a voluntary act of law to constitute a contract, and even if the alleged award was in legal form, nevertheless the District commissioners were without power to contract for that purpose.

the executor and was not the equivalent of
a judicial finding. 3 Wins. Exrs. p. 326, and
authorities cited. So, also, the power of a
municipal corporation to arbitrate arises from
its authority to liquidate and settle claims,
and the rule on this subject is thus stated by
Dillon (Mun. Corp. 4th ed. § 473) ·

In determining whether an agreement to arbitrate involves the power to contract we eliminate at once from consideration consents to arbitrate made under a rule of court, by "As a general proposition, municipal corconsent, in a pending suit, and shall consider porations have, unless specially restricted, only whether an agreement to arbitrate not the same powers to liquidate claims and inunder rule of court or within the terms of a debtedness that natural persons have, and statute enacted for such purpose is or is not a from that source proceeds power to adjust all contract. We do this, because there is no disputed claims, and when the amount is aspretense in the case at bar that the submis- certained to pay the same as other indebtedsion to arbitration was under a rule of court ness. It would seem to follow therefrom that or equivalent thereto. Indeed, the courts be-a municipal corporation, unless disabled by low held that the submission of the claim in positive law, could submit to arbitration al! question to arbitration was a purely common- unsettled claims with the same liability to law one and not made under a statute or rule perform the award as would rest upon a of court; and in consequence of these views natural person, provided, of course, that such the courts held it to be their duty to make power be exercised by ordinance or resolution the award executory by rendering a judg- of the corporate authorities." ment thereon, on the assumption that the parties, having agreed to a common-law submission, were bound by reason thereof to abide by the award of the arbitrator.

or

In the early case of Brady v. Mayor, etc. of Brooklyn, 1 Barb. 584, 589, the power of a municipal corporation to submit to arbitration was ascribed to the capacity to contract, The general rule is, "that everyone who is with a liability to pay, and it was held that capable of making a disposition of his prop-corporations have all the powers of ordinary erty, or a release of his right, may make a parties as respects their contracts, except submission to an award; but no one can, who when they are restricted expressly, is either under a natural or civil incapacity by necessary implication. In the case[173] of contracting." Kyd, p. 35; Russell, Arbi- of minor public officials or corporations," trators, p. 14. And Morse, in the opening such as selectmen and school districts, paragraph of his treatise on Arbitration and the power to arbitrate has been clearly Award (p. 3), says: "A submission is a con- rested upon the existence of the right tract." And again, at p. 50: "The submis- to adjust and settle claims of the parsion is the agreement of the parties to refer. ticular character which had been subIt is therefore a contract, and will in general be governed by the law concerning contracts." In Witcher v. Witcher, 49 N. H. 176, the supreme court of New Hampshire said (p. 180): "A submission is a contract between two or more parties, whereby they agree to refer the subject in dispute to others and be bound by

mitted to arbitration. Dix v. Town of Dummerston, 19 Vt. 262; District Township of Walnut v. Rankin, 70 Iowa, 65. Indeed, the proposition that an independent agreement to submit to an award must depend for its validity upon the existence of the right to contract is so elementary that further cita

the owner through mesne conveyance of a large tract of land in the territory of Arizona, known as the Rancho de San Jose de Sonoita; that he had not voluntarily come into the court to seek a consideration of his title; that the title was open to question, and was in fact invalid and void; that the other defendants claimed some interests in the land, and praying that they all might be brought into court and be ruled to answer the petition, set up their titles and have them settled and adjudicated.

In an amended answer the administrator set forth the nature and extent of his title, and prayed that it be inquired into and declared valid. Reply having been filed, the ease came on for trial, which resulted in a decree on March 30, 1894, that the claim for 221 confirmation of title be disallowed *and rejected. The opinion by Associate Justice Sluss contains this general statement of the facts:

the fees and charges required to be paid, and
with his concurrence the *intendente and the[228)
auction board ordered the expediente of the
proceedings to be reported to the junta su-
perior de hacienda for its approbation, so
that when approved the title might issue.
"There is no evidence that the sale was ap-
proved by the junta superior de hacienda.
"On the 15th day of May, 1825, Juan
Miguel Riesgo, commissary general of the
treasury, public credit and war of the Repub-
lic of Mexico for the State of the West, is-
sued a title in the usual form purporting to
convey the land to Herreros in pursuance of
the proceedings above referred to and pro-
fessing to act under the authority of the ordi-
nance of the intendentes of Spain of the year
1786."

The conclusion reached was that "the en-
tire proceedings set forth in the expediente
of this title and the final title issued thereon
were without warrant of law and invalid."
"On the 29th day of May, 1821, Leon Two of the justices dissented. Thereupon
Herreros presented his petition to the in- the administrator secured an order of sever-
tendente of the provinces of Sonora and Sin-ance and took a separate appeal to this court.
aloa, asking to obtain title to two sitios of
land at the place known as Sonoita. The in-
tendente referred the petition to the com-
mander at Tubac, directing him to cause the
tract to be surveyed, appraised, and the pro-
posed sale thereof to be advertised for thirty
days.

Messrs. Rochester Ford and James C.
Carter for appellant.

John K. Richards, Solicitor General, for ap-
Messrs. Matthew G. Reynolds and
pellee.

Mr. Justice Brewer delivered the opinion
of the court:

"In obedience to this order the officer proceeded to make a survey of the tract, which The controversy in this case does not turn was made on the 26th and 27th days of June, upon any defect in the form of the papers. 1821, and on the completion of the survey he | The contentions of the government are that caused it to be appraised, the appraised value the officers who assumed to make the grant being one hundred and five dollars. There-and to execute title papers had no authority upon the proposed sale was advertised for to do so, and upon this ground it was held by thirty consecutive days by proclamation made by a crier appointed for that purpose, beginning on June 29, and ending on the 28th day of July, 1821. Thereupon, on the 31st day of July, 1821, the officer took the testimony of three witnesses to the effect that Herreros had property and means to occupy the tract. On October 20, 1821, the proceedings above mentioned, being reduced to writing, were by the officer returned to the intendente.

"On October 25, 1821, the intendente referred the proceedings to the promoter fiscal for his examination.

"On November 7, 1821, the promoter fiscal reported to the intendente the regularity of the proceedings and recommending that the land be offered for sale at three public auctions, and thereupon the auctions were ordered to be held.

"The first auction was held on November 8, 1821, the second on November 9, and the third on November 10, 1821.

"At the conclusion of the third auction the land was struck off to Herreros at the appraised value by the board of auction, of which board the intendente was a member and the president.

"All these proceedings being concluded, on the 12th day of November, 1821, Herreros paid to the officers of the treasury the amount of tire appraisement, together with

the court of private land claims that the
grant was in its inception invalid. Secondly,
that if a valid grant was made it was one of
quantity, and should be sustained for only
that amount of land which was named in the
granting papers and paid for by the grantee.

It appears that the proceedings to acquire
title were *initiated by a petition to the in [223]
tendant, or intendente, as he is called in the
opinion of the court below, of the provinces
of Sonora and Sinaloa, on May 29, 1821;
that, so far as that officer was concerned,
they were concluded and the sale completed
on November 12, 1821. Nothing seems to
have been done after this date until May 15,
1825, when the commissary general of the
Republic of Mexico for the State of the West
on application issued a title in the usual
form. So the question is as to the power of
these officers to bind the government of Mex-
ico.

Few cases presented to this court are more perplexing than those involving Mexican grants. The changes in the governing power as well as in the form of government were so frequent, there is so much indefiniteness and lack of precision in the language of the statutes and ordinances, and the modes of procedure were in so many respects essentially different from those to which we are accustomed, that it is often quite difficult to determine whether an alleged grant was

made by officers who, at the time, were au-
thorized 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
and right which before the cession Mexico rec-
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 be-
fore should be enforceable after the cession.
As a rule, Congress has not specifically deter-
mined 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.

now before us disclose that about the time
the intendant acted in this case similar action
was taken by him in respect to other applica
tions for the purchase of land; that through
a series of years from 1824 downward,
the commissary general, the officer created
by the act of September 21, 1824,
recognized his acts as creating equitable 225
obligations on the part of the government,
and attempted to consummate the sales by
papers passing the legal title; that the title
papers thus executed were duly placed of
record in the proper office, and fail to show
that subsequently thereto the Mexican
government took any steps to question the
title or disturb the possession. While this may
not be conclusive as to the validity of the
grants and the existence of the power ex-
ercised by the intendant, it certainly is
persuasive, and we should not be justified in
lightly concluding that he did not possess the
power which he was in the habit of exercis-
ing.

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 [224]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 referenee 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 erown 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 ap make 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 ac sidered 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 egal 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 of power from the fact of its exercise.

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

and without further delay, the necessary con
firmation may be made, which said superior
board shall issue at the proper time, proceed-
ing in this matter, as also the intendant 226,
their deputies and others, in accordance with
the requirements of the royal instructions of
October 15, 1754, in so far as they do not con-
flict with these, without losing sight of the
wise provisions of the laws therein cited and
of law 9, tit. 12, book 4."

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 officers would simply have to respond to new the Constitution of March 18, 1812, and the superiors, and that is all. promulgation of the law of January 4, 1813. 2. The resolution of the council of the Indies, before a full board at Madrid, December 23, 1818. 3. The decrees of Ferdinand VII. re-establishing the Constitution of 1812, and convoking the Cortes, March 6, 7, 9, 1820. 4. The imperial colonization law of January 4, 1823.

"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."

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 distriOf these in their order, though it may be bution of part of the lands on account of milwell here to note that the colonization law itary service, it still provided that half of the was not passed until after the sale in contro- public and crown lands should be reserved to versy had taken place. serve as a mortgage for the payment of the 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 Constituthe 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[228] 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 prov incial 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 there is no suggestion that any orders to that effect were ever issued. The resolution would have no more effect on the powers of local officers than would a transfer of the land department of this government from the control of the Secretary of the Interior to that of the Secretary of the Treasury. The local of171 U. S. U. S., BOOK 43.

Clearly thereafter the intendants had the [227]powers given *them by the ordinance of 1786. Sabariego v. Maverick, 124 U. S. 261 [31: 430].

that "the junta will take care that all the revenues of departments of the state remain without any alteration whatever, and all the employees, political, ecclesiastical, civil, and military, will remain in the same state in which they exist to-day." Prior to that time, and on August 24, 1821, what is known as the treaty of Cordoba was signed at that village 10

145

was entered on December 21, 1895. 12 Utah, and Delecto Maston." This is followed by a 278. On the same day the maternal note of evidence, showing what took place aunts, who were embraced in the first class, during the trial in the district court, which applied for and were allowed an appeal to this is also supplemented by the oral and docucourt, and on December 21, 1895, a bond for mentary evidence offered in the trial of the costs was filed in the supreme court of the cause. It appears that Mrs. Amy offered the territory, and was approved by the chief decree of divorce between herself and ner husjustice thereof. The citation on appeal, band and the complaint filed in the suit in however, was not issued until about six which the judgment of divorce was entered. months thereafter, September 21, 1896. As, This was objected to on the ground that the in the meanwhile, the state of Utah had been documents were irrelevant, inasmuch as withadmitted into the Union this citation was out the summons issued in the cause they approved by the chief justice of the state of proved nothing. The counsel tendering the Utah, and on the same day findings of fact proof thereupon declared that although the and conclusions of law were made by the su- decree on its face recited the fact that the preme court. These findings, as the record summons had been regularly issued and certifies, were prepared by the late chief served, it was absent from the record, and he justice of the territorial court, and were proposed by further evidence to show that the adopted by the supreme court of the state of summons was regularly issued and due notice Utah as its own. From the findings thus thereof had been given to the defendant as made we have ascertained the facts above the law required. stated, and the findings moreover show that The court received the evidence subject to the controversy involved two issues. First, the objection. That is to say, it declared whether the brothers and sisters of the hall that it would pass on the objection when all blood were entitled to a distribution of the the evidence in the case had been offered, property left by the deceased in preference to thus treating the objection as in a measure the maternal aunts; and, second, whether going to the effect. Mrs. Amy and her Jennie Amy, the appellee, was the wife of the former husband, the defendant in the divorce decedent, it being conceded that if she was his proceedings, were then called, and testimony wife under the laws of Utah, she inherited the was given by both tending to show that the property left for distribution to the ex- summons had teen issued in conformity to clusion of his maternal aunts. The first ques-law and the defendant in the divorce suit tion, that is, the right to distribution as-was personally cognizant of the suit, as he[183, serted in favor of the brothers and sisters of received and had in his possession the copies the half blood, may be at once dismissed from of the newspaper containing the published view, as the decree of the supreme court re- summons, and that due service thereof, in jected their claim, and they have not ap- the manner required by law, had been made. pealed. The second question, that is, whether All this testimony was objected to, and the Jennie Amy, the appellee, was the wife of the court likewise received it subject to objecdeceased, depended upon the validity of a tion, no exception being taken to such acjudgment of divorce against a former hus- tion. In the course of the testimony of these band which had been rendered in her favor in witnesses various exhibits were offered tend1879 in the probate court of Washington ing to show the preparation of the summons county, Utah, the marriage having been con- in compliance with law, the publication in tracted in Utah and the ground for the di- the newspaper of the summons in conformity vorce being the abandonment of the wife by to legal requirements, its service on the dethe husband. After this judgment of fendant, and that he had both legal and acdivorce Mrs. Amy, on the 4th of August, tual notice of the suit, all of which was ob1886, was married to Oscar A. Amy, the de-jected to, and this, like the other objections, ceased. The controversy, then, between the was reserved to be considered when the eviparties now before us turned upon a claim dence was all in. The counsel of Royal D. [182]advanced by the maternal aunts, that the judgment of divorce rendered between Mrs. Amy and her former husband was void; that she hence did not enter in a lawful marriage with the deceased, and was not entitled, therefore, as his wife to his estate.

The record contains, as we have stated, findings of fact made by the supreme court of the state and the conclusions of law, which the supreme court held to be decisive of the issues which the case involved, and to which we shall have occasion hereafter to refer. The findings of fact and conclusions of law are immediately followed in the record by this recital: "The foregoing is a statement of the facts found upon the evidence in the case, and the following are the rulings of the court on the admission and rejection of the evidence, which were duly excepted to by counsel for Adelia Young, Cedina C. Young,

Amy and others, the sisters and brothers of the half blood, offere in evidence what they designated as the judgment roll of the divorce proceeding. This was also objected to by the counsel for the maternal aunts on the ground that the record was not complete and did not show compliance with the legal requisites, and was objected to by Mrs. Amy because it contained matters asserted not to be properly a part of the judgment roli, and which were therefore not admissible. The court also reserved the objection to this evidence.

At the conclusion of the trial the court sustained all the objections to the evidence and the testimony, and decided the case against Mrs. Amy and in favor of the maternal aunts. To the rulings of the court rejecting the documentary and oral evidence, Mrs. Amy excepted, and upon the record as thus made the

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