Sacramento Daily Union, Volume 37, Number 5719, 27 July 1869 — Page 6

a *^**^ J !*™*'*t:*r- - i ZHSSSH '■ — '"»■"«■ ' ■* ■■■' ♦hrse SfllSa ned ttfettty atfe. 10 ft -*ff« In «■**■: I iiv with a condition to that effrct contained in the Act 0 Congress b» which the lands Bought to be selected are doaatid. Th • locations were required to be savveyed by the County surveyors, so as to match, a3 near as passlole, the lines ol tte Unlt_d States survey when the sain should coma to be made, '""i lbe purchaser was to be secured in Hi i possession .-r bis land uctil such tin as it should be surveyed by authority of the United States, alter which time his lines were to be shifted, if necessary, so as to conform to the lines of the Uaited States survey. , , ; .... In 1555 tbe Legislature pas another Act («-)«■ 15,..*. p. 231). by which it undertook the selection or the vnnold pouioaor the dosatton for internal improvements, -;I aiso the ten suctions donated for public bull Jing, and the sixteenth ani thirty-sixth sections In each township .rated for the use of common schools. By this Act tbe Surveyor General of the state was made the agent of the State for tie purpose of making salec.ions. He wis required to make the se-lectlous'-aasoaias practicable* alter the lands had been surveyed b.v tbe United State?, or sooner if allowed by thelaws of the United States," from which provision it would seem teal the Legislature had already begun to doubt the validity ef the selections which it bad atithonz td to be made by tbe Act of ISM which doubt seems to bave becom. strengthened in 1357, a' which time another Act was passed, providing for the lrc-ation and pi'entiag of school lands (stats. 1557, p. 850), ia which, for it.- first time, the Legislature adopte I a course not altogether Inconsistent with the regulations of the Land Department of the Cnited States Government. It provided that the owners of school land warrants, which bad been issued under tbe .Act or 1352, mijrnt locate the same in all cases in which the lands or tbe United States bad been duly surveyed by the General Government, and the plat thereof filed for thirty days In tbe Land Office of the proper district, by filing a written application wil* i the Register for the district, acd making-affidavit that there was no valid adverse claim, and thai whenever lh« General Government should certify the land over to the State, the Governor of the Slate sbould issue a patent therefor, upon the production or tLe evidence therein required. " In 1853 the Legislature passed still another Act to provide for the location and sale of the unsold portion or tbe school lands, and also the seventy-two sectisus donated for the use of a seminary or learning, (..-lata. 185-, v. 243), by which the Governor was authorized to appoint and commission one suitable and competent person in each Unite States Land District, whose duty It sboutd be to act as the locating agent of the ate in his district. Under this Act locatious were to be made upon application by the State A.- -ml ko the Land Office of the Unite! States for the district ia which the land was situated, _nd in coaformily '" the taws and regulations of the Unite . States. The aßeots were prohibited from locating, directly or indirectly, more than 880 acres for any one person. The persons for whom locations were made were entitled to certificates of purchase, rid each agent was required to keep a register .fall locations in -de by hue, and furnish a copy tbereof to the Register ol tbe Stale Land Office. In the same year an Act was also passed to provide for the sale of the sixteenth and thirty-sixth tectlons, or lands selected in lieu -hereof. (stats. 185S, p. 815.) The sales were to be mide by the Sheriff of the county upon the order of the Board of Supervisors, who were to act upon the petition of a majority of the houshelilers of the township. The purchasers were to receive certificates of purchase from the Sueriff, and finally a patent from the State. Iv l> another Act, amendatory and supplemental to the second pmeeding Act, was passed, extending the provisions of the latter to tiie location and sate of the ten sections donated for public buildings. (.Stats. 1259. p. 33.) In the same year, a furthor Art was passed, directly authorizing persons holding school 1 mil warrants en locate them upon any unsurveyed lands of the United States subject to such location. The locator was required to tile with the County Survvvor of tho county in which tbe land was situated an affidavit to the effect tbat tbere was no adverse claim or title, and that the laud was subject to location under tbe provisions of the Act ot Congress by which the lands for internal improvements were granted. Thereupon the County Surveyor was required to make the location, and accurately describe the lend by township, range, section and parts of sections, alter the method of the United States surveys, and report bis proceedings folly to the Surveyor General of the State, who was required to ex amine the location, and if found correct, or not in conflict with the records of bis office, to notify the Register and Receiver of tbe United Hates Land Office for the district in which the land was situated that tbe State had selected the some in part satisfaction of the donation for internal improvements. If he approved tbe location, the Surveyor General was required ta in- . dorse the warrant to that effect, and deliver it to the Register o? tbe State Land Office, who was required to cancel it and deliver to the l.r .!-' -Certificate of purchase. It was further provide- that locations so made should be deemed as valid as if they bad been made npon surveyed lands, asd that patents therefor might be obtained in tbe same manner as for surveyed lands. .stats. 1888. d. 801.) in l-o another Act eras pissed (.tats. 1861. p. 218) amendatory and supplemental to the Act 1866, wbica provided for ihe selection of the unsold portion of the internal improvement and seminary lands, and the Act amendatory thereof of 1559. By i* each tocattogagent w\s required to obtain from the United _r*tcl- - Registers of their respective districts a list of the sixteenth and thirty-six' sections in full townships, and the fractions of such sections in fractional townships, which bad not previously been sold to pre-ecnptois, and also a list of such as had been 30IJ ; aiso, - list of suca land? as bad been reserve 1 or were covered by private grants, asd for which toe State was entitled to select ctber lands in lieu thereof; and also a list of the lands sold under the Act cl 155*, for the sale cf the sixteenth and thirty-sixth sections. There upon it was further provided that lbe lands thus listed to tlie St.it._- should be located and sold ia all respects in the same maccer as provided in the Act of 1553 aad 155.), to which the Ac. in question eras amendatory and supple:.. Unsurveyed sixteenth and thirty-sixth sections an i fractional seciions, and unsurveyed lands in lieu thereof, were to be loca land sold la tbe same Banner, except tbe application to locate must be accompanied by a map and field-notes of ha land sought to be purchased, surveyed in accordance wit the Unite ' State* surveys by the County Surveyor of the county' which the land should be situated. The locating agents were to report locations to the Surveyor General it tbe United States Register old fail to certify the sitae over ta the State within thirty days, who, upoa finding th; focition to have been properly made, was required, after the expiration of sixty days, to approve tae location and rc-.ura a certificate thereof, with his approval Indorsed thereon, ami an order lor the payment ol principal or interest, according to circuit.* stances; and, upon payment thereof, li waa provided that the locator should receive a certificate ol purchase. ' During the same period similar statutes were passed In relation to swamp. Lit... The lan in suit, however, does not belong to tbat class, and tbo mutation already refe-red to sufficiently indicates what his been the poticv of the Stale in relation to tbe location and sale of the lands donated to her by tha General Government. Thus it appears that the plan adopted by the State for the purpoje or selecting and selling her lands has not been consistent cr harmonious in Itself. First — The par cbaser* of school warrants were authorized to act the agents of the State la the matter of selecting her lanl*, aaa to maSe selection by the assistance of County Surveyors and Oct ks. t*eco_jd— lbe Surveyor General cf tbe state was authorized to act as locating agent of the State, assisted, when called upou by him, by the County Surveyors. Third — Holders of school warrants were again authorized to act as agents in locating their warrants upon surveyed lands. Fourth, The Governor wa< uathoriztd to arpo-nt a Commissioner for eaca Untied States Lied District, to act as locating agent of tbe Slate io such district. Fifth—Persons holding school wai rants were authorized to act as agents in locating their warrants upon unsurveyed lands. Bo there have been three classes ol tocatiog agents : First, purchasers of school warrants ; second, the Surveyor General of the State; third, Commissioners appointed by the Governor, one for each United States Land D. strict; ail of whom c 'old, for aught we have been able ta discover, be engaged in tbe work at the sice lime. Tot proceedings of sach, however, were annexed certain conditions, among which were: .First Set more tbao Oil acres could bs sold to toe same person, by the Act of 14..*,I 4 ..*, and cot more than half that number c -u'.-i he located for any one person under the Act of ISs__ Second- Not less t^an .1 acres could be located tn a body. Third The locator must make an affidavit that le wanted the lied for the purpose of making a permanent settlement thereon. .Fourth— The laud n.i be vacint, or ihu locator must make affiJavit that there was no adverse claimant. Fifth— the case or uniurceyed laods, the laud must be surveyed and marked ofl oy distances, lines and courses or posts Slxih— £ach purchaser was to receive a certificate or purchase, wbica should be prima facie cvi lence or title. ( *uts. 1559, p. 1.27.) From tbe foregoing reterence to the l.ir.d la-rs or tbe State upon wcich the el itntitTi claim is founded tn part. It Is m -i-.'.'ct that it has been Use policy of th _ State, trim 13..2 down to iho list legislation i,oii t:i« eubjec. had. prior to the date ol plaintiff's certificate of purchase, to «-.•<:*: and sell a 1 the Kit* donate 1 to her for improvement*, common scbocls, pubic buildings an a seminary, without wailing lor tbe General Governrac-t lo survey, and otherwise propare them for selection aod segregation, according to tbe methods of tte Uaited States. As might have been supposed, the steps so taken by the State were never recogm/ as of any legal effect, by the Land Departmeat cl the United Mate*, and the Slate found herself Involved in a s.a cf uiffioutties by her improvident legislation, from which she could be extricated in oiriy one of two medes— by retracing her steps »nd calling in all her warrant* aad making compensation to puicbssers, or by prevailing upon ogress to ratify and confirm the selections wuich she bad made. In 1818 the Legislature chose tbe latter plan, by adopting the following preamble and resolution : " IVHSKEit-. Tne Suite of I'ali'ornia, through her officers properly authorize I by l,w, his made selecilooiof land trom the public domain in part satisfaction 01 the -various donations made to tue State by Acts or Congress; and, whereas, the State tea made sales of the lands so selected to purchasers, In pood faith, reel veil partial or whole payments therefor, and ha* issued certificates of purchase ttt patents to such purchasers forthciands so selected, tnereby pledging ncr honor for the procurement of good and -lie ent titles lor the same; and, whereas, ttie Hon. Coa»_ii__loner of the General Laud Office at "vTasblrgtoo, giving a 'riff-rent construction to some ot said laws of donation from that entertained by the authorities of th* ttate, bas decided many such selections to Uave been Improperly made : be it, therefore, v * ' Resolved, By the Senate, he Assembly concurring, That our Senators and Representatives in Congress »re hereby requested to procure tbe passive of a"U» which shall provide that wherever the proper authorities or Sate '• iv- in »: o 1 forth -elected any portion or the public domain ia pan sattriacrioa or aoy grant made to the State by ary Act or Congress, sad hive sold the same in good tilth, the sua (.elections shall be confirmed to the State; and the State beteoy pledges hsrseir that If, noon Ileal investigation and decision, i' r_all appeal tint lbe Stale has selected any lands to wuish she is not entitled, sbe shall pay into the Sub-Treasury of the Dotted States at Ha 1 Fnncisco. to the credit of the Halted .-.tie sum or one dollar and t«eit_v-five cents for eacb acd every acre ot land so determined to have been improperly selected." There was an a iditional resolution directing a copy of the tor..; to be sent to the Secretary of the Interior and to the Commissioner of the General Land Office at Washington. Thus tbe plan -I. vised by tte Lezislatcre to extricite the State from the difficulties in which she had become involved was to obtain from Congress a confirmation of h-r pretended title to all lands wbich she had selected and sold, In good faltb, under ber laws, regard* less of the fact whether she h«d selected lands which VK- not e pea to her selection, or which ibe ru act

■- -f-'.T*' l^ mmmmimmm* ' — -*-* ■*•- ■■ ■' ** - •** •— V****- ■**■ "*■ ■ '■»'■■■«-»• entitled lo pfoporioi, doweycr, to pay for the t letter at the OeverilflMfl- prlc?, If there should turn out to be any of that class, upon final Investigation and decision. It was ln compliance with this requestor the Legislature that the Act of Congress of the L"* 1 of J_ly,lS66, to quiet land titles in California, upon which tbe plaintiff relies, was pass-el. It dees not concede to theS.atc all that was asked by the Legislature. The lull prayer •■! the i/'iiislature cculd not have been granted by Congress witbout a total disregard of conflicting claims, aod, possibly, without an interference with vested rights. So far, however, aa the Slate and purchasers under her laws could be relieve!, without impairing the rights cf settlers upon the public land, under tbe laws of the United States, previously acquired or then existing, Congress has undertaken to .go, and no farther. " ..„.., „ The Act do-s not confirm to the state all the lands which may havj been selected by her, but only such as bad been selected and sold to purchasers in good faith under her laws; and fcuch selections even are not canfirmed ir, at the date or tbe passage of the Act i*_-_ I Ju'y ISCC), there bad attached to tbe land any preemption, homestead or other right io favor of any settler under the laws of the United S.at-8, or if the fond was within any naval, military or Indian reservation, or mineral, or claims J un-ier a Mexican or Spanish title or withiu the limits of any city, town or village, or the couaty of San Francisco, or in excess of the quantity of land to which the State is entitled for improvement and school purposes under exls-ln* laws. It does not confirm to ihe State any specific land, or finally validate any particular selection, for it reserves to ihe General Government the right to i: quire as to each selection, and determine whether it has been made and the land sold to purchasers in good faith under the laws of the State, an whether tbe land tails within any of the exceptions stated ia the first section. The effect of the Act upoa State selections is, in the main, similar to the effect of the Congressional donations upon the fond; for sample, under the etrtth section of the Act or September, 1841, donating 800,0011 acres for internal improvements, the State, upon her admission into the Colon, became vested with the title to so much of the public domain within her limits, but she became vested with the title to no specific land. That could not happen until after a survey and a selection approved by the Geueral Government. So this Act confirming selections made by her, contrary to the laws of thciUnited States, does not vest In her the title to any specific selection. That cannot happen until afler the selection has come before the proper officers of the Genera] Government, and, after examination las bee declared by them to be of tha character described in Section 1, tha*. is to Eav, not within any of the exceptions there stated, and that the land has been sold to purchasers In pood laitb, under the laws of the Slate, by which latter de-cription, we untlorriand, is mean) such tection* is has been mide according to tne conditions of tbe State laws, under which they purport to have been made, and have been sold to purchasers in such manner as would have passed the gate's title at tho time the sthction was made. if the Slate had then had a title. In effect, the Act amounts to nothing more than a direction to the Land Department of the General Government to recognise and approve such selections as had been made by ie State, under her laws, and contrary to existing laws of the United states, so far as they may appear upon examination to have been made upon lands which, at the dates therein after provided, were open to selection by her, or, in other words, not included in any of the exceptions enumera-cd in the first section, To this effect the first section is necessarily limited by the succeeding sections. tue second section provides 'bat ibe^States through her officers, shall notify the Registers of the United States land offices of all selections which have been made by her upon surveyed lands In their respective districts. The selection is made to date from the date of such notice; and it, at that date, there is no valid objection toil under the first section, the selection is to be allowed, or, lv other word.*, confirmed. and not otherwise. So in th». third section. Selections made upon uasurvei-ed lands are not absolutely confirmed to the State, but ;. they bave been surveyed by authority of tbs Stale and sold to purchasers In good faith under her laws, and are marked off and designated in the fl.-id, they are allowed the same fore* and effect as preemption rights upon unßUiveyed lands, provided always ;;,. do nst.upen Investigation by the proper officers ofthe United State*, fall wiri-in any of the exceptions state, in Section I of that Act. Tbe Act, nevertheless, bad the effect to legalise the pos_e_siou of locators upon unsurveyed lands under tin Mate, until they sbould have an opportunity to prevent ib-ir claims for determination by the officers of tbe Unite! States, a.* therein provided. Thereafter their claims ceased to be within lbe rule of Grogan vs. Knight, (supra), for tbey were, by the Act, admitted to all the rights arid privileges of pre-emptors upon nnsu'--veyed lands under the law. cf the Coited States, which are comprised in the present Tight if possession, coupled with the right to purchase th. title whenever the time at, wbich a purchase cm be effected shall bare arrived, The .pre-emptors' right, aside irom personal qualifications, is founded upon an Inhabitation and Improvement of the land, which necessarily Implies a license or right to eaterfor that, purpose. All persons possessing the personal qualifications of a i re-tmptor may, therefore, lawfully eater upon and take possession of the public domain with a view to the acquisition of the title, upon the performance by then? of the conditions prescribed by the Gover_in:nt. Having settled in person upon the land, Improved it ami erected a dwellinghouse '--yon, they .arc lawfully in possession, aod have a right to be protected in it; and, if ousted, may sue to recover i*. To maintain ejectment, a right of entry aad possession is all that is required. (Payne vs. TreadwelL, 0 C.1.,310; Yount vs. Howell, 14 id., 455; Grad.- vs. Early, 18 id., 108; Hubbard vs. Barry 21 id., 821 ; Bailee . vs. Wilson, 3 Porter (Ala ). 437 ; Masters vs.Kusus, 8 id, 371; Goolib vs. Bmttbson, 5 id., 245.) A contrary doctrine v.-oul J tend to defeat the policy, in view of which pre-emption rights were conceived, by putting the settlement and improvement of the preemptioner at tbe mercy of any stranger who might choose to trespass upon them. The only question ye* undetermined relates to the proof which .i locator under toe state upon unsurveyed lands rnuri make to entitle hlra to rocovnr as against an Intruder upon his possession. He mast undoubtedly bring himseif within the c loditiona of the Act of Con* press ln question. He must 6how that he is a pur* chaser in -.-iii faith under the State. Of those tacts, however, his certificate of purchase is prima facie evidence, for It has been so declared ■.a statute of the Slate. It shows that, the State bas selected the land and sold it to a purchaser, and that be has made a payment thereoa — that, as against the State, he has Required an Inchoate tiilc, one which the .-'•ate is bound to perfect under ber laws, thus satisfying so tar the conditions of the first section of the Act of Congress. It th* land rails within any of the exceptions there stated, the defendant must prove i*. Judgment revet*-.-!, and a new trial ordered. SANDERSON, J. We concur: SAWYER, C. J., SPRAGUE, J.. CROCKETT, .i. I dissent. RHODES, .1 Ftople ex rei. Jlaird vs. TSton [No. 1,992].- Tlie Boa Mot Slat's Harbor Commissioners Is composed ol three members, ooe of win-- Is elected by the electors of the State, on-: " by the members of the Senate and Assembly in joint Convention, on such a day and at such an hour as may be agreed to by both houses," and one by the electors ol San Francisco. (Statutes 1808 406, Bee. 1; 8 ate. lS*i-i, 135, Sec. 1.) " Rich ef said Commissioners shall bola bis ot&?e for the term of four years, and until hit hucceseor is elected, commissioned and qualified as in thi* Act provided, except the Coinmlssiocers firf t elecled, woo thall bold lheir offices as follow?, viz : The first Commissioner elected by Ihe Legislature in jrint Convention, shall be elected at the present te.*sion, and hold his office for one year Irom ihe date of the first mc.tic.;of the Board, as in this Ac! provided, and until his successor Is elected and qualified.'* Under this Act the tlefeodaot Tillon was elected as one of the firs'. Commissi oners, aad as such, held till November 4. 15G4. Oa the 10. h or .Tiotury, ISCI, be was elected by a joint Conveutioa "f the Legislature, and In pui -iiii'.c-- or such election, atterward duly commissioned by the Governor as Commissioner for tn> term of lour year?, commencing November 4. 1501. On thu day he duty qualified aad entered upo 1 tbe duties of the ofiice, and lie .as ever since continued to discharge the duties ol said office. The term ol four years, for which be was thus elected, expired on tbe 3d of November. ISB9. The Legislature met on the first Monday of L.C-__ber, 1887, and adjourned without cay. on the SOth cf March, 1868, without electing a successor to defendant, Tnton, tor Hie term commencing November 4, 15G3. nefiistda.v or December, ISCS, and before another session of the Legislaturj, the Governor, assuming that there was a vaoancy In *i''l office, ami that tbere was no other mole provided for filling it, appointed and commissioned the relator, Laird, as one of said Harbor Commissioner*, wbo duly qualified and demanded of defendant the possession of tbe office, which demand was refused. This action is brouriit to try the right to the office, and the question i«, whether, upon tbe facts stated, tb:re was a vaoancy in the office which ihe Governor was authorised to fill, within the meaning of Article V. Sccion 8 of the Constitution. The judgment of the District Court was for defendant. We are referred to several cases by appellant's counsel, which ae. claimed by tbem to settle the que. in tbeir favor. The first and prtnolpil cue reded on is People vs. Beid (fi Cal.. 25?.) it arose uaoer the Act to establish an Insane Asylum, which provides that "tbe Legislature shall elect, on joint ballot, one Resident Physician. * • * Ho shall hold h.s offlc. for two years, and until bis successor is appointed and qaaUfled.*' (Slats. ls*>3, 204, Sse. 5.) taction 12 of the Act provides thai •' if any vacancy shall occur in the office of Resident or Assistant Physician, «uca va* cincy shall be filed for the unexpired lerm by appointment or the Governor." Held was eleoted by the Legislature on the 21-.'i and commissioner* on the 27th of March, 1834. Tbe Legislature adjourned on tbe ..- or April, 1 Soo with electing a successor, and on tbe SiO'b of the same month, more than two years after R-l-1 entered upon the duties, tbe Governor appointed L-imrJon. It was held that tbere was a vacancy in the office which the rower was authorized to fill. This is certainly an adjudication tbat the failure to elect l.v tbe Legislature for the ensuing term create! a vacancy in toe office, notwithstanding the provision that the party elected should bold " until bis successor is appointed and qtialilieil." Toe Court do not discuss the question in this ease as to whether tbe appoiatmeat to fill the V-O-Bcy was made by the Governor ny virtue of the authority given by S^»;tion 12 of th» Ac* before quoted, which provides that tbe vacancy '* shall be filed far the unexpired term" by appointment of the Governor, or by virtue of the authority conferred by Sec'ioa S, Article V., of the Constitution, under which the commission would ''expire at the end ol tne next session of ihe Legislature." But this Utter question cam- up ia relation to the sam» appointment In tbe subsequent case of People vs. Lioxdoa (3 Cab, 1), where it was held tbat Lin,-don was appointed under the constitutional provision, and thai, his commission terminated with the next session of the Legislature. The two cases should be considered together, ln or ler to ascertain whit was determined. Ia the last case the Court seems to bold that the term '* vacincy " does not mean the same thing wuen used In the Constitution at I* does when used la a statute— tbat a vacsney. in toe constitutional sense of the term, occur* when the elect* log or appointing power rails to act, or wben the party sleeted or appointed falls to quality ; and a vacaai-y, ln lathe statutory sense, is when tbs party enters upon the duties the office, ani afterward aies, res'gos, or in any mane ceases to be an incumbent or the office belore the expiration <.<{ bis term. Rut this distinction ls not very clear, unless in ci«e« where the term *' vacancy," as used in tb. statute, appears to have some direct retereoce to a specific kind of vacancy d: fine I by the statute. The Court having held In the first case tbat the failure to elect created a vacincv, which was properly filled by the appointment of Langdon, were driven into a loo? and unsatisfactory discussion when the second case appeared, in order to determine whet the appointment of Langdon was made by virtue ot the oow«r ccDferred by Section 8, Article V., of tho Coaitl* lu'.isa, or of l_e p_ vtr csnitrrel by Sictioa 12 ci the

SjQ--Vjiat_g«-^g_*^ l. „.■■■,... J,. . J~. A.i establishing the Insane Asylum, for the cosse* f qdences, at to the time for which the appointee would hold, were different under the different provisions. Of course the question as to whether there was a vacancy in the constitutional sense at tbe time of the appointment of Lanitdoa was res ad judicata, and therefore not cpen to further consideration, and it was ntcessary to dispose or the second case on that theory. People vs. Bilne (6 Cal., 509.) differs from People vs. ftetd, in providing that the Trustees ''shall go oat of office at the expiration of one" and two years, without any piov'riou that they should bold till their successors should be appointed and qualified. Tbe Legislature having failed to elect successors, It wis held that there were vacancies in the entire Board, which "the Governor of the State, by virtue of bis central appointing power, corresponding to that of the Crown of Ureal Britain in such cases, bad the power to fill." Where he got this ''general appointing power" we are not informed. The case of People vs. MlzDer (7 Cal.. 519.) does not touch tbe question, and i- no authority on the point now involved. It is true tbe Court stated what had been decided in People vs. Reid, but it bad no occasion upon the views taken to reinvestigate the question In the form presented in that case. Had it been otherwise, a different result might bave been attained, as we shall see was subsequently attained by the same Justices in another case— People vs. Whitman. In that case (People vs. Mizner) the Governor, by and with the advice of the Senate, was the pariy authorized to appoint th? successor of Ho burg on the expiration of his term. (Stat". 1863, p. 181.) In pursuance of this authority, Ue did appoint Mizner, the t>rm of his predecessor having expired during ■ recess of the Senate, and it was held that this was an appointment for tbe term, and not to fill a vacancy ; and that the appointment, once made by the Governor, was wild till directly acied upon and rejected by the Ben ! Tne case, however, is against the appellant, rather than for him, for it holjs iluit there teas no vacancy, within the constitutional sense cf ihat term. The opinion ol tbi Court concludes: " For the reasons given, we think the appointment of Mizner was for tbe whole term, and that tliere was no vacancy, within the true intent and meaning of the Constitution, that could be, filled by the appointment of the relator." (7 Cal., 527.) Why no vacancy, it People vs Reid adopts the correct theory? The Governor very well knew that Hoburp's term would not expire before the next meeting of the Legislature, and it wa* his duly to mike the appointment in anticipation ol the expiration ol the term belore the adjournment, la order that the Senate might act upon it, nnd the office for tba ensuing term bs regularly filled. But the appointing power _':*- --lected its duty, so that when the term expired the whole appointing power was not In a condition to act. If this did not create a vacancy, within "the true intent aad meaning of the Constitution." why sbould a similar neglect of duty by a different body create a vacancy In Rrid's case? In neither case ma there a vacancy, witbin tho specific statutory definition, and it must have been a vacancy witbin the meaning of the Constitution, or do vacancy at all recognised **/ law. Upon this point the two cases are certainly not consistent. People vs. Addison (10 Cal., l) is but a repetition of I' ipie vs. Mizner, so far as the question now involved is coocered The next caso bearing upon the question is People vs. Whitman (10 Cal., 46). Atthe general election of 1855 Whitman waa elected Mate Controller. He duly qualified and entered upon the duties of his ofiice. At the State election in 1557, Mandevllle was elected as bis successor, but having been appointed by the President of the United States to the office of United States Surveyor General of California, be accepted that cfiice and declined to qualify for the office of Controller. Thereupon the Governor of California, assuming that there was a vacancy, appointed tbe relator, Malony, aud the action was brought to determine the rights of the respective parties to the office. The Constitution ti.cn provided that the terra of the office of Controller shall bt the same as that, of Governor ; and with re c - ence to Governor It provided ihat " the Governor shall be elected by the qualified electors nt the time and places of voting for members of Assembly, and shall bald bis oflice two years from the time or installation, and until his successor shall be qualified." (Const., Art. V , Sec. 2.) Under these provisions the Court, one Justice dissenting, held that Whitman held over, that (here was no vacancy, and that th** Governor had no power to appoint the relator. This decision Is directly In confliot with that of People vs. R*:ed, and, necessarily, overrules it, and it was so regarded by the disseating Justice, (see conclusion of Justice Field's opinion in People vs. Whitman, 10 Cal., 49.) People vs. Mott (3 Call, BUS), dees not touch the question, for in that case ti-e office bad never been filled, mid there was nobody entitled to discharge the duties of the office. There was clearly a vacancy ia fact. There was an office winch vraa entirely vacant, and f.r tbe lime being there was no mode provided for filling it. Thus it appears tbat there is a conflict in the decisions in this State upon the question as to wbctoer a vacancy occurs b.v the failure to elect a successor to an office**, within, tbe meaning of Section :>, Article V., of tbe Constitution, which the Governor is authorized to fill, tbe later cases being opposed to the earlier ones, or rather one, for the case of Reid io tbe only one in which it was provided that the officer should bold till his successor should be appointed and qualified, the question Is discussed, and the only one. is upon which tbe appel.-ant relies. While all the cases which have been brought to our notice, arising in other States, are opposed to the decision ln People vs. Reid. and In accord with People vs. Whitman, lb.y aro (Commonwealth vs. Henty 9 Pa. St. R , 313, and State vs. Lusk 18 .Mo., 3.3), referred to and the point of the decision stated in the case of Teeple vs. Parker, decided at the present term, and also referred tola People vs. Rrid. T.oc later authorities and the weight of authority appear to us to bo against the appellant, and cur predecessors have uniformly held that it was the manifest design of the C institution to restrict the appi.l_.tio2 power of tbe Governor to the narrowest limits. This principle ha* often been repeated. (People vs. Mizner, 8 Cal.,- 524-5; People vs. Langdon, 8 Cal.. 15; People vs. Whitmin, 10 Cal., 46.) If the point Is doubtful, this recognised principle should lurn the scale against the appointing power when there Is a parly authorised to perform ie duties of the offioe till ii can be filled by tbs regular appointing power. It was manifestly the intent of the Constitution thit the Governor should appoint only whoa there Is no patty authorized by law to discharge tue duties of the office. Iboobi-:ct wi3to prevent a public iocoavenarisin? iroj toe want of a party authorize J for the time being to discharge the duties of a public office. Wti'.n th?re Is a party expressly authorized by law to discharge those duties temporarily, till the powci upon wham -he duty ol elec ion or appointment is devolved can regularly act, tbere is no occasion for calling into exercise this extraordinary power vested in the Governor to make a merely temporary appointment lhere Is no coon reason for appointing a party to tern porarily discharge tho duties ot an office when there ii already a party expressly authorize! by the Constitu tion or laws to temporarily discharge those duties ' be very reason upon which the power Is vested In the Governor tails, and the case provided for ban not arisen And it can make no difference whether the language expressly authorizing a party to hold over and dis charge th- duties ot the office temporarily till a sue c:ssor duly elected and qualified appears. Is fouud Ir ths Constitution or in the statute. The same construe tlou should be given to the same language used in tin same connection, in refeie_.ee to a similar subject matter, when used in a statute, as when used in the Con etitui'.on. in People vs. Whitman the Court well say : " But the construction we have given the Constitution is not onlj supported by the lacgaage of the lostru-nsot, bnt by it! general scope sad spirit. The executive officers are elected by tbe people, and under an elective system i' is more proper that these officers sh>uldliold over that 'hat the duties tboul l devolve upon those In whose selection the people bave had no voice. It Is only In ca?e_ where there is no incumbent of the particular office ti bold over, that the system will allow the appointment of the Executive to till tbe office. Our Constitution whether wisely or en wisely, it is not oar province te determine, has studiously restricted the patronage 01 lbe ■run. (Cue People vs. Mizner, 7 C-iI.K p. 5.'1 ) li this case we nave to decide between tin chows of tho people and the appointee of the Execn live," The laoguags of the Constitution thon undei consideration Is, tbe Governor "shall hold hit office two years from tbe time cf his installation and until hi: successor shall be qualified. ' Suppose tbe people thou! 1 fall to elect a Governor, or the one elected shoubi neglect to qualify, or die before he could qualify, woule! it be pretended that a vacincy would arise withij the meanlag of the constitutional provision, wli eh couiti bo filled by an appointment by the existing Governor, either betoro tbe expiration of his term, or while he Iholding till a successor could be appointed and quail fid? lithe present case the language of the Act is even more specific than thai of the Constitution. I' contains tbe language of the Constitution al l more, by st. .tin.; In express terms bow the selection is to be made. It is that tbe " Commissioner shall bold bis office for the "term or four years ant] until his successor is elected, commissioned and qualified, en in this Act provided." How Is hi elected mtn this Act provided f By tbe Legislature In Joint Convention, and not otherwise. rue first Legislature failed to elect, but the next one, which will be tho first since the expiration of tic term, may elect. In this case there bas been no session of the Legislature: since tbe expiration id Silton's lerm. lit* term did not expire till more than seven months after the adjournment of the last session of the Legislature. It was evidently intended tbat tbe Commissioner elected should bold till another nboul-1 be elected, notwithstanding one Legislature might fail to act. It Is provided ln tbe fifteenth section that when vacancies occur ln certain mode.*, the Governor shall appoint to hold until it cm be regularly fillet in the appointed mode. But In all these cases there Is no incumbent, locum /'••('•i*. or party in any way authorized to discharge th- duties of the office. The fifteenth section enumerates the cases ;n which it was Intended that the Governor should appoint, and it must be presumed that it enumerates all such cists. (People vs. Waitman, 10 Cal., 45.) It seems manifestly tbe Intention of the Legislature not to authorize tbe Governor to appoint in aoy case where there is a party authorized to discharge the duties of the office. Although the term his expired, and the old incumbent only holds over till his successor is duly elected and qualified, although he is cot entitled to boll as tbe regular incumbent of the term, be is still a temporary incumbent, and authorized to discharge 'lie duties of the position until a regular incumbent of the term, d.l? ceded and qualified, presents himself. He is not merely acting de facto, but lis iure— under tbe expressed authority of the law. (titration vs. Outton, 2* Oil., 44.) lithe Governor soould mike an appointment, It would be only of the same temporary character. But If there is a vacancy, in any proper sense, after the expiration of the teim, and before tbe election and qualification or a successor, the statute itself fills the vacancy for the time being, by providing that lbs old incumbent shall hold till a successor shall be elected and qiailfie 1. This is as clearly a provision/or the temporary vacancy as a direction that the Governor, or some other body, shall appoint for Unit time. The provision is, aot that the old incumbent shall bold the office till the electing power has an opportunity of electing a successor, but "his successor Is elected, commissioned and qualified, at in this Act promt that is to say, m. in fact, not ought lobe elected, etc., whether that event occuis at a-i earlier or later period. And the mode provided by this Act is, an election by a joint Convention of the Legislature, and not by appointment by tbe Governor. 1. this is net a provision for filling the temporary racancy, it would be difficult tor the Legislature to find language that would express tbat intention. The law, therefore, provides in express terms for filling the office by the old incumbent from the date of the expira* ion of the term ill a successor ls elected and qualified a the mode provided by law. Anotber Legislature will sect and may fill the office, and wben It does, aod the .arty elected qualifies, the defendant will be required _o vacate. Bui till a successor Is elected, theofiice is em jwrarily filled by the party designated by the law, md there is no vacancy wit.in ibe meaning of the Constitution, and no occasion for calling into exercise be extraordinary power of the Governor, which was ml/ |l**cn by the Constitution la ordtr tut tt>« public

■ I ie lip II aiWmmmmmmmmmmmmm~— = ==E=mUEß interest might net suffer for want cf a party anthoriled to discharge t*>e duties pertaining to a public office. 1 If 4 v.C.nry c _c_rs, then, by the lapse of tbe term, the i law provides bow it shall be filled till a successor is elected and qualified, and that Is by the old Incumbent, and not by ao appointment by the Governor. We do not perceive that any cons derablo Inconvenience is likely 'o arise from tne construction adopted, on the ground* that wtak and incompetent men would 0 tea bold over, us has teen suggested. It ls not to be presumed that the regular appointing power is more likely to elect incompetent men tor a full term than that the Governor will appoint such temporarily, and the experience acquired by the incumbent for a term ought not to detract anything from his qualification. Oa the contrary, he should be better qualified by his experlenc-*. lie baa already become familiar with his duiies, while a temporary appointee of the Governor would scarcely have time to acquire a knowledge of his duties before be would be required to yurrenuer to a regularly elected successor. This alon? is a i uffi :ient justification of the policy of the law continuing the old incumbent for the i.uipoary period. Cut a case 'ike the present Is likely to be of rare occurrence. Betides, tbis construction is by fir tbe.slmplest, and .ad it been adopted in People vs. Reid, the Court would have been save! the laborious and cot very satisfactory diacus.ii.n and the fine drawn distinctions to which it was driven in People vs. Mizner, arid People vs. Lacgdon, in a not eery successful effort to avoid inconsistency. Besides, it would bave been in accordance witb all the authorities at that time, so far as we ate aware, and, as we think, would have been right upon principle, and our predecessors must have thought 30 in subsequent cases, which, In effect, overrule tint case. Hello not perceive that the seventh section or Article XI. of the Constitution, relied on by the Court in People vs. Reid, as distinguishing the case from the cases to the contrary, cited from the other States, affords any solid ground for the construction there adopted. It is that, '• nor shall the dura. ion d any officer not fixed by the Constitution ever exceed lour year;." The framers ol the C institution certainly did no*, moan that the '* office," but rather the term, should not exceed four years. But tbls only applies to the terms. It does not forbid the same man to bold for mere than one term. The Legislature could certainly have re elected the same Incumbent for another term. So, admitting the appointing power to be in tbe Governor after the expiration of the tetm. he could undoubtedly have appointed tbe old incumbent. So the Legists ture, as it created th* office, was authorized to provide for tilling It both tor the term and for any temporary period after the expiration 01 the term, till another sh.uld be regularly appointed, whether that period lie celled a vacancy or something else. Ami in tbis case it was provided that after the expiration of the term fixed, the old incumbent should hold the office till his successor should be elected and qualified in the mode prescribed— as in this Act prescribed." If, therefore, as the Court say, after the expiration ofthe lerm, the incumbent " did not hold by the tenure of the approbation of the appointing power," be does bold by ibe express authority or the law, during tho term which elapses between the explra.i.n ot the term and the regular election and qualification or bis successor. The Legislature could, undoubtedly, authorize the Governor to designate the ram who should temporarily bold tbo office in the contingency In question, and the Governor could, under such authority, designate the old 'neambsnt, and if the Legislature can authorize the Governor to dosignate the man, we see uo reason why it cannot itself designate the man by a law, passed in advance to meet the contingency when II should arise. There is no express limitation of the power of the Legislature to provide for filling temporary vacancies, and State Constitutions aro uot prant3 of power to the Legislature. Full power exists when there is no l'mitatton. In this case the Legislature created the office and provided in its own way. both fur electing the incumbent for the term and far filling all temporary vacancies. The argument, that the Legislature by refusing to elect might continue the old incumbent In office! twenty years, does not appear to afford any inference against the power to supply a temporary vacancy, in tbat mode as well, as in any other. It might with equal force be replied, that by refusal to act the Legislature might confer power up tho Governor to fill the ofiice for twenty. years against the policy, both of the Constitution and the law itself requiring the Legislature to elect. The Legislature, or one branch el it, might refuse to meet at all on similarparlisan grounds, or to pass any laws, or in aoy mode to lake care of the interest of the people, out this affords no ground far an argument against the power to do so. The fact that the Leg islature may neglect cr refuse to exercise any power, or discharge any duty, is no argument against the power. Beside-., we are not permitted to indulge in presumplions— a co-ordinate branch of the elate Government will disregard its great constitutional duties, which Its members hive sworn to discharge, from unworthy or other motives. Tuo only question, then, is whether we shall follow the case of People vs. Reid, which was a manifest departure from the authorities then existing, rr the later cast's in oar own Court substantially overruling it— tiie latter being supported, so far as we are advised, by the unbroken authorities from other States, and, as we think, also, by sound reason. Of course, we cannot hesitate. Judgment flffl/med. SAWYER. C. J. We concur: SANDERSON, J.. RHODES, J. This case V- not distinguished on any essential part'cular from the case of the People ex ret, Scboaff vs. Parker, just decided. I adhere to my opinion, a. expressed In thai case, and am of opinion that! the judgment in the present case should be reversed. SPRAGUE, J. People ex rd. Biird vs. Til ton (No. 1,032].— 1n the case of People ex re', Schoaff vs. Parker, decided at the present term, I havo discus-fd the general propositioas which, ln my opinion, are decisive of this action. But It 1? claimed on behalf of the respondent, that the Act providing tor tbe appointment of Harbor Commissioners c:nteins a provision which distinguishes this ease Iron those that bave precanedit, and establishes that, by the very terms ofthe Act, the respondent is entitled to bold Ihe office until Lis successor is elected, commissioned an I qualified in the manner therein designated; tbat is to say, by the Legislature in joint Convention assembled. Toe argument is, tbat inasmuch as the office of Harbor Commissioner is a mere creature of the statute, the Legislature bad the poiver to declare what should be deemed a vacancy, and how a.d when it should be filled ; that It has expressly reserved to itself the power of appointment In respect to the office In contest, and having duly -appointed the respondent, who was theretore rigutiullv in office, he will continue rightfully In office until the Legislature shall elect bis successor, ln other words, that the office is not vacant, notwithstanding tba term for which the respondent was appointed has expired, and the Legislature fees tailed to elect his successor. The provision relied upon in support of this proposition ls as follows: ''Each of sain Commissioners shall bid 1 his office for the term of four years, aod until his successor is elected, commissioned and qualified, 84 in this Act provided." Tin-Act provides tor the election ol three Commissioners one by the Legislature in joint Convention ; one by the qualified electors ot the Stale at a cen»ial election, and one by the qualified electors ol ttie city and county cl son Francisco at a municipal election. Tim respondent was elected by the Legts--1 iture. lor the term of four years, commencing November 1, 1564, Ills term therefore expired November 1, 1868, and the legislature having railed to elect his successor, the offlce became vacant, unless the provision above ejuoted has the effect to continue bim In office, not merely as a locum tenens, but as a rightful incumbent, dejure, ot the office, until tbe Legislature shall see fit to elect his successor, if the argument in behalf of the respondent be sound It fallows as a logical result that if each successive Legislature ler the next twenty years nhoul I fail to elect his ■accssor the respondent, uuriog all that period, would be theligbtful incumbent, dejure; holding the office not as a locum tenens, but by force ot the statute, an.l that no vacancy had occurred which could be filled by au appointment by the Governor. In this method, by simply falling or refusing to elect a successor, tbe same per -on, without any new appointment, might be continued in the same office indefinitely, notwithstanding the Constitution, in Article XI. Section 7, provides that the duration of any office not fixed by the Constitution shall never exceed four years. In this method, the Legislature nuibt accomplish by indirection what it tad no power to do directly. The same result might be accomplished by the factious opposition or a bare majority or citner braoch or the Legislature, ln refining to go into joint Convention for the purpose of electing a successor to the Incumbent. We may suppose a case, i a which a large majority of the Legislature would desire to elect a successor to an obnoxious incumbent of an Important office, whose term bad expired, or was about to expire, and yet a bare majority "i either houso might, on this theory, continue tue incumbent tn office Indefinitely, against the wishes of a majority of the Lgislature, anil In palpable evasion of the constitutional provision limiting the term of office to four years. It ie no answer to this pioposition to any that the Legislature has tbe power to re-elect the incumbent to the s ime office as often as his term expired, and may thus keep him in oflice as long as It sees fit. The latter, I concede, is a legitimate exercise of power under the Constitution. But in electing an officer, Li fitness and qualtfic for it come under discussion, an 1 his election is tbere'ultof the final action of a deliberative body, whose duty it ls to examine and pusi upon bis bines* tor tbe place. Tbere is an opportunity for discussion and the Introduction of evidence in respect to the propriety of the appointment. The Constitution, therefore, for good reasons, has not prohibited to the Legislature the power to reappoint the same person to the office on the expiration of his term. Bat a reappointment by a majority or tbo Legislature in joint convention, after an opportunity Is afforded for discussion and Inquiry, is quite a different affiir from continuing th« incumbent In office by a mere refusal or failure to ac'., wben there is no opportunity for either discussion or Inquiry, and particularly If the legislative will ii thwaited and Its failure to act is produced by a refusal of a bare majority ol either house to go into joint Convention; wblcn refusal may be solely for the purpose of continuing the Incumbent in office. In this method, so long as a bare majority of of either house saw fit to do it, it might retain in the office an obnoxious incumbent, in flagrant disregard of the wishes of a majority or the Legislature and In plain violation of tbe spirit, if not the letter of the Constitution. It tbo Act for the appointment of Harbor Commissioners can be so construed at to authorize this result, it is to that extent in violation of that clause ot th* Constitution to which I have referred. The term of tbe office was four years, and under the Constitution it was limited to tbat duration. The Legislature bad the power to re-elect the respondent on the expiration of bis term ; but it bad no authority, under the Constitution, to continue bim in office beyond the four years without a re-election, except as a mere locum tenens, to avoid an interregnum ln the offlce. In the absence of any provision to lhat effect ln th 1 statute, he might bave discharged tbe duties of the office, as locum tenens. until his successor was appointed. This right be would have bid at common law, without tbe aid of the sta'u'e. But the office would be vacant, nevertheless, and subject to be filled by Hie appointment of the Governor, if tbere was no other metbol deslgsatel by law. Tnis branch of the subject I have discussed fully in Teople ex rei Scbooff vs. Parker, and it Is unnecessary to repeat the agreement here. In my opinion the judgment ought to be reversed. CROCKETT, J. Yates vs. Smith [So. I.S33J.— Tbls case, In Its mate* rial facts, is not distinguishable from Treadway vs. *mpie(2sCal., 652) and Semple vs. Wright (82 Cal., 553). Tne fact tbat plaintiff received a conveyance of he premiss* in controversy before the confirmation of .he survey of the Jimeno rancbo, is not material, as, inder the rule laid down In Rodriguez vs. United States 1 Wal., 557)— -upon the authority of which these cases vere decide)-— confirmation of the survey was dndtng upon all persons, whether they Intervened or lot. If that rule is believed to be wrong, the corrects must be .ought in the tribunal that laid It down. ts decliioaj so queiUoni ef thii c_ir»i;tir are binding "111,

11 ' ' ■■--■-— _W_^ ——Hl Upon the authority of these case*, ths Judgment of be Court below is reversed and cause remanded for a lew trial. . ;>. . • RHODE:*, J. We concur: BA"D_BSOM J., : SAW VI. X. C. J. Yates vs. Smith A Allen \ So. 1,633 I— The principal features of this case are nearly Identical with those of Treadivay vs. Bcmole (88 Cal., 663) and Semple vs. Wri(iht(;.2Cal.,Cs9.) ludeed, I perceive no material difference in the facts, except that ii the present ca*e it appears that when the survey of the Jituer.o rancbo was finally confirmed Semple, the claimant of tbe dolus raccho, had ceased to here any interest in the particriir paicelcl land which is in contest in this ease, having, before that time, cmv.vtd it to the plaintiff, who was there in the actual ponressioo.c'a.raing the title in fee, under the conveyance fiom Semple. In the two former ernes the facts, with this excepting are minutely stated and it i-> unnecessary to repeat them here. The defendants contend tin' the two former adjudication* arc decisive of this action, whilsttbe plaintiff not only asks us to review those cases but insists that if we shall adhere to them they do not conclude the plaintiff, for the reason that he is not bound by tbe action either of Semple or the Court, m respect to the confirmation of th- final survey t.r the Jinieno rancho. Of the two rancho*. the surveys of which are in conflict, tbe Jimeno was first grante.l by the Mexican Government aud was first presented to the Board of Land Commissioners fey confirm ition ; but ti c confirmations of both ranchos became final by the action of the Supreme Court ofthe United States at Its December term, 1555 in both cases the surveys were ordered Into lbe Di.trict Court of tee United States for review, in pursuance of the Act of Congress of June 11, lSt'-O; and on the 2 J of February, 1 SGI, the survey of the C lus rancho was approved by a final decree or said Court, and on the Cth day of the following April the survey of '.he .Ilinetio rancho was In like manner approved by a final decree cf the Court. Whilst the question of surveyor the Colus rancho was pending in Court, one Hagar, who had succeeded to the title of the grantees of the Jimeno r.tncho, to that portion thereof which Includes the premises in controversy, and under whom the defendants claim title, intervened .and excepted to said survey on the ground that it embraced a portion of th? land printed to Jimeno; but lie afterward, with leave of tbe Court, withdrew his intervention. Wben tbe survey of the Jim.no rancho was pending in Court, Semple, to whom tbe Coins rancbo bid been finally confirmed, intervened and filed exceptions to the survey, alleging (bathe was the owner ol an undivided interest ef about two-thirds oi one league or the Jimeuo rancho, claiming title thereto under the original .ii tees, and that taut survey, to the extent ol two league*, had been located " upon land claimed by the owners of the Coins grant, containing two leagues, finally eon firmed to this affiant; and this affiant believes that the title to the Colus grant is superior to tbe title to the: Jimeno grant to the same '.and, so that if the title to ibe Colus print shall prove to be the superior and better one, then tins affiant will lose about one-ba'.f of his aforesaid interest.'* But It appears from the final dectee cf April 6. 1861, confirming the survey the Jim.no rancho, that tim intervener, Scrapie, appeared personally in Court and consented in open Court to the decree confirming the survey. It appears further that the Jimeno rancho was a grant for eleven leagues, to be located within certain larger exterior limits, embracing aiiout nineteen leagues ; and tbat the Coins was a grant for two leagues, to be located within certain exterior limits, erntraclug about six leagues, which were also IncluJed within tbe exterior limits of the Jimeco rancho. 'I he Jimeno rancho was finally confirmed for eleven league?, and the Colus (or leagues, and the final surveys of each include tbe laud in contest. In Trtadwa.y -, -. B inple, and Semple vs. Wright, supra, we held, on the autborityof Uodrigues vs. United states (l Wallace, 557), that the proceedings under tbe Act of Congress of June 14, 1360, authorizing surveys to bo ordered into the District Court for review, were judicial in their nature; and that when S.-T.pl- Intervened In the proceedings for the survey of the Jimeno rancho and made himself a party thereto, and especially when be appeared in open Court and consented to the decree approving the rurvey, ho became concluded thereby, and could not afterward impeach the correctness of the survey in a collateral action. We are now asked to review this proposition. That the proceedings under the Act of Congress of June 14. 1860, are of a judicial nature admits cl no debite. They are conducted before a Court having tbe requisite jurisdiction. The patties in interest aie allowed to Intervene, and to adduce proofs on the questions at issue, aod the Court is to pronounce judgment on the 1 ects, either approving or modifying the survey or rejecting it entirely and ordering a new one. These are the peculiar functions of a Court. clothed with tbo requisite authority, to decide that class of cases, and its proceedings in lhat bebilf are necessarily judicial In their nature. Whether or net, persons who intervene in such proceedings, either to support or resist tbe survey, are absolutely concluded by the judgment, t a degree which precludes tbem from afterwards question tog its correctness, in a collateral action, need not be decided iv thi3 rase, inasmuch as the decision of it would not, in my opinion, touch the merits of the controversy. 1 shall assume, therefore, fort! purpose of In- argument, that neither Semple nor any one cl liming uaoer him can Impeach or eainsay the correctness of the final survey of the Jimeno lancho. But I*. is manifest the tame principle would apply to tbe survey ot the Gains rancbo. The law does not blow hot aad coll in the same breath. If tbe final su vey In tbe one case is conclusive again interTenors, the survey In the other case must of necessity be conclusive usainst all thote who had the orporuicity to Intervene, but declined or omitted to to so. Tbe mere fact of an actual Intervention is in no degree more conclusive than the failure to Intervene, aiUr due notice. The statute

provide! an appropriate method for givicg notice b.v publication to all parties in interest of the pendency of the proceeding, This Is equivalent, In law, to tbe service of a summons upon them, and is only a substitute f.r sneb service. Those who appear in obedience to the notice and actually intervene are do more bound by the judgment than those who might have appeared but woo declined or omitted to do so. i' i* is a familiar principe, applicable not only to proceedings in rem but to all cases where a service by publication is substituted for an actual service. Ihe claimants of the .'.ineiio rancho are, therefore, as much coaciude-1 by the final survey or ihe Colus as the claimants of the latter are by the survey of the former, Indeed, it ts urged with much plausibility that they are th« more concluded, from the lact that the final decree approving the Colu3 survey was prior In tune. But assuming that each party was equally conclude by the survey of fie other, and tbat the priority lv time does not vary tho rights ol the parties, the case then resolves itself into Ibis: That th.re was granted to Jimeno eleven leagues of land, to be located within exterior boundaries, containing nineteen leagues; tbat there was aiterward granted to Semple or his predecessor two leagues, under the name o "Colus," to be located within certain portion- of tha same exterior boundaries; that both grants have been finally confirmed and finally located and surveyed under the orders or the United Slates District Court ; an J that the land in contest Is included tn both surveys. On these fic'v3, the question 1?: Which has the better ill..— the plaintiff, deriving title under the Colus grant, or the defendants, claiming under Jimeno? The solution of this question must depend, in a great measure, on tho relative rights which the patties acq .iit.j. under the laws of Mexico, by ftieir respective grants. The Jlaieno rancho bas bean finally confirmed, located and patented, and the Coins has also been finally confirmed and located by ■ final, approved survey, which ti.o law declares to be equivalent lo a patent.' (12 Statutes at Large. 8_; is. ale vs. Ford. Cal., IPO.) In otoer word*, each party holds a legal title, so far as the i alcnt of the United States could confer It. In cases ol conflicting patents v. the same lands, it is well settled that even in an action at law, the Court will look behind the patents ami ascertain which has the better and prior equity ; and will give effect to me rights of the parties accordingly. (Smith vs. Atheara, 84 Cat, 606.1 Tested by this rule, which of these parties has tbe better title? If ibo grant to Jimeno, which was prior in time, had been for a specific parcel of land, by metes and bounds, and if the Government had subsequently granted a portion of the same land to Semple or his predecessor, the question would bo free from embarrassment. No one could doubt that, the litis of Jimeno would prevail in an action at law, even though his pitent was subsequent in date to the other. We would in that event invoke the rule lo which 1 have aaverted. We would look behind the patents to icquire into the equities; and on ascertaioing that the grant to Jimeno was prior in tin c and for a specific paicelof land by metes and bounds, we would bo.d that his grant was paramount to a subsequent grant of the same land to another. But from (be lime of the decision in United States vs. Fremont (17 How., 642,) down to the present date. It has never been questioned or denied, so far as I lis aware, that under tne Mexican system ol grantin;.' lands, ir a grant were made lor a specific quantity, to be afterwards located within certain larger exterior limit., the Government bad tho exclusive right to locate the quantity granted; and thus to give piesision to a claim which bolero was vague and indefinite, and had attached to no particular parcel within the general limns. The grantee had no option in respect to the particular location. lie was bound to content himsrit with whatever location the Government awarded to him witbin the exterior limits. It is equally well settled that on our acquisition of the territory this right of segregation and location passed to the United States as the successor of tho former sovereign. Bat so long as the Mexican dominion continued that Government had the unquestionable right to locale tbe eleven leagues grantctt to Jimeno at any place within the exterior limns of his grant. " Under tne Mexican Government- the survey was to be made or approved by the officer of the Government, and the party was not a liberty to give what form he pleased to the grant. . * * * The right which the Mcx can Government reserved to control tbls survey passed, with ill other public rigats, to lbe United States." (Fren^nt vs. United States, supra.) This rule of law has been invariably recognized by this Court. (Waterman vs. Smitn 18 Cal., .73; Moore vs. Wilkinson, Id., US; Lease vs. Clark, IS Cal., 53.i ; Ma'aony vs. Van Winkle. 21 Cal, 552; Keid vs. Maples, 83 Cal.. 102 ) II Is Dot pretended, however, that any such location In express terms of me grant to Jimeno *as made by the Mexican Government; but It is an admitted fact that the two leagues composing tbe Colus rancho, to te located within I an area cf six leagues, i -eluded witbin the exterior limits of the grant to Jimeno, -eras subsequently granted by the Mexican Government to Semple, or bis predecessor ln interest, rbis was an unequivocal declaration by the anient, that the grant to . tm:no should not be so I ocated ss to include the two leagues embraced In the

C*!us. | It was, pro tanto, a location of tbe Jimeno grant and a grant of two leagues of the surplus to the Colus. In Fremont vs. United States, (p. 668), the Curt S3ys : '* It is true tbat if any other p.rson witbin the limits where the quantity granted to Alvarado was to be located, had afterward obtained a grant from the Government, by specific boundaries b.iore Alvarado had made bis survey, the title of the latter grantee could not be Impaired by any subsequent survey of Alvaraao;" and in support of this position the Court refers to Rutherford vs. Green's Heirs, (2 Wheat., 196 ) This is undoubtedly sound law, and ts louoded on principles or reason and justice. If the owner of a tract of one thousand acres sbould sell and agree to convey to A. five hundred acres, tote afterward located at the option of the grantor within the exterior limits, and should afterward agree to convey to R. one hundred a.ies, to be located by the grantor within the northern half cf the one thousand acie tract, nothing can be plainer than ton the grantor could not afterward locate the five hundred acres of A. so as to Include tbe whole of the northern half aud thereby exclude B. from the proper location of his one hundred acres. Much less could the grantor, after locating correctly the one hundred acres sold to 8., include the same laod io locating tbe five hundred acres sold to A. To state this prop.iltioQ is to prove It, and no argument could ; make It plainer. Toll is precisely what bai been done jo tbU »«-* Tbs authorities o. Mcxl . o Agreed to coo- \

e^mmmmmammm f ,B,^im»mml4mmmj(tmm3TTrmmtH W.-Hl__. v.yic- .Im.tl. e'#*. lei? v«, to te located by tut Government, at an? plan It might elect, within a specified area of nineteen league:-— afterward It agreed to couvey to Scrapie cr his predecessor two leagues, to be I cated within cert specific .be le. toe--, »* inch were a portion of the nineteen leagues. subsequently the Government ot the Ucltcd States, w_ eh ban succeeded to tbe rights and duties erf that of Mexico in this respect, actually located the "Colus" property wi:hm tbe spedti.d six leagues, after which It proceeded to locale the Jim-." o grant, so as to include the same land, which was manifestly wrong and in violation of the rights d the owners of the Cains grant. The material facts of tbis ens are very similar to those In "Waterman vs. Smith (18 Cal., 313), which ca-;e it appears t_at In Marco, 1310, loe Mexican Government granted to Are ji a tract of thre i - gees, to be .-. cued within exterior limits embracing from twelve to twenty league:. Subsequently, hi IMS, it granted to the Indian chef Solano tour leagues, to be located within exterior limits embracing at out eight leagues*, anil the maps referred to in both grants covered tbe land In controversy. The grant to Solano wis cort; firmed, finally located and patented, so ss to include the land in dispute, and the grant to Arin-j i had bee confirmed by a decree of the District Court, but. was p.n ii*o- on appeal to the Supreme Court of the United -ttates. Under these facts the plaintiff, claim under Solano, brought his action to recover tt.e land trom lb defendant, wr.o was In possession under Aimijo. If ibe grant to Arm-jo bad been finally confirmed, and located by a final approved survey, so as also to Include the same land, the legal propositions Involved in that cisc would have beet precisely Ihe same which arise In this, unless the subsequent Act ol Congress if June 14, 1860, conferring on the District C*urt tue power to supervise surveyp, shall have varied th right of tbe par ties. In tbu case this Court held that the plaintiff was entitled to recover, on the ground ''that the grant ti Solano and Armijo passed a present and immediate Interest in tho quantity of land specifically designated in their respective grant., to ">o afterward surveyed and laid off within the exterior limits of the general traits bj the Government; thai remedy could only be made under the former Government by its officers, and could net be made by tlie grantees themselves ; that the right of survey passed with other public rights to Ihe Government ol the United State*, and is to be exercised In pursuance of its policy and In conformity with lis laws : that by its legislation^ the sut-ject of surveys la Intrusted to tin- Executive Department; tbat tbe location of confirmed grant?, when the quantity granted is without specific boundaries, lying within a larger tract, rests exclusively wiih such department, and eacnot be revieeved or corrected by the judiciary, but is binding and cocculsive upon it ia actions of ejectment; except only when the patent leaned thereon conflicts with prior rights of third parties, and then its inconclusiveness is maintained only so far as may be necessary for the protection of such prior rights." llei.ee it was held thai though the plaintiff's gract was subsequent in date to tbe defendants', aod va. for a specitic quantity to be located witl.ii larger exterior limits, which larger limits nme wholly or partially witbin the exterior limits of the defendants' elder grant, nevertheless, Inasmuch as the plaintiff's grant had been confirmed, finally located and patented, the plaintiff's title must prevail over the defendant*', which had not been either finally confirmed or located. Hut if both bad been confirmed and located, and particularly it the junior grant to Solano bad been first finally loca ; ed.it is quite evident that it would have been entitled to priority, for tbe reason that the question of location rested exclusively with the Government, and so long as there remained within the exterior limits of the grant to Armijo enough to satisfy his claim, it was competent for the Government to grant and appropriate the surplus to Solano without Inflicting any, wrong upon Arm jo. who took bis grant with a toowlege !1 at the Government reserved the right to l.e._ti_ it wherever It saw fit, within the exterior limits. The same reasoning applies to the case at bar. Wren Jimeno received his grant for cloven leigues, to be afterwards located within on area embracing nlnclccu leagues, he knew that 'tie Government reserved Iho ri -.-lit to locate it any where within that area, arid thit It had the power to grant the surplus to another. When a portion of this surplus was afterwards granted to Semple. or in- predec:ssor, and was suoeequently located by tbe Government, it only exercised an indoubled power, in nowise prejudicial to the rights of Jimeno or his grantee:. The suosequeut location of tbe grant to Jimeno on the sunt- land, cannot, and ought not to, pre-ju nee the claimants cf the Colus, who are in respect, responsible tor the erroneous action of the Government in that beualt. If the lcc_tiun of the Coins was proper when it was made, as we must presume it was. it could not afterwards have become erroneous by force of the fact that the Government subsequently located th same land In the grant to Jimeno. It is impossible that bath locations can be proper and stand together ; and as it cannot be doubted that tne Government of Mexico had the right to grant the surplus, ami that the Government of the United States, as the successor to the Mexican Government, bad tbe absolute power to locate the surplus so granted. It fellow?, us a logical deJoction, 'hat when It ha 3 ih-.is located it in accordance with the existing laws, It cannot nullify its own valid act by subsequently I eating the Jimcao grant over the same land. The error was not in the first, but in the last locattcn. Nor do 1 perceive how tbe result can he varieel by the fact that both locations were ma under ■e-au-thirity of the District Court, under the Actof J i-_- 14, 1860 and not by the executive officers ol the Govern- I ment. The result ol these proceedings is, thateacfa claim baa been fiaally located, and the title of the defendants bas ripened into a patent, whilst- the pi lintiff ha.' a final approved survey, which is equivalent to a patent. In other words, each party has a te^a! title, ? > far

lis tut.- uoverutueut, cjii uouici ti. tacj n-.eui'.v, iv.i _• fore, the same relative positions which they vvouid have occupied il each had obtained a intent prior to the passage of the Act of Juoe 14,1860, unless there be something tn that Act which varies their iijns :4ut, as we have seen, if Semple ia concluded by the su. vev of the Jimeno grant, the claimants of the latter aro equilly concluded by tbe surrey of the Coins grant. On the other band, if the latter are uot concluded by their failure to intervene after notice, Semple is not conclude!! by bis actual appearar.ci and his consent to the Jimeno survery. A failure to intervene after notice in the oae case, l. equally as obligatory as an actual appearance and consent In the i her. [do no perceive, therefore, but that the rights of the parties are precisely the same that they would have been if each 1....; obtained a patent ia due course, of law prior to th-; passage ol the Act of June 14, l_G-). It results froa the foregoing views that it is not material whether or not tba plaintiff Intervened anil ex- <-.•;. id to the Jimeno survey. He Is as much bound by It as ii lie hud intervened and acnally consented to i:. But the defendants being In like manner concluded by t tie Coins survey, and each bavi . a legal tittc, th? rights of the parties must be tested by an Inquiry Into the equities; and, as we have seen, the platotiff has the best equity. It is alleged, however, that these views are in. insistent with those advanced la Lsese vs. Clark (IS Cat., 570) and several subsequent cat deci-iod by this -ourt, and in Beard vs. Fcdery (8 Wallace U. i*. R., 475), in which it is held that a pat cut of the United Siates Issued upon a confirmation of ;•. claim to land by virtue of a right or title derived from i'pain or Mexico is to be regarded lv two aspect? — _s a deed of tbe United Suites and as a record ot the action or the Government upon the title of the claimant as i: existed upon the iquisition of California ; that as a -.ed its operation 13 thai of a quit claim, or rather of -. conve-yanco ot such interest as the United Stales posucsacd in tbe l -id. and it takes effect by relation at the time when prcce-.-dinTs were in- itul ■ by tho filing of the petit on before too Hoard of Land Commissioners ; that .it a record of the Government It is evidence that the claim asserted was valid unrler the laws cf Mexico; tiiat it was entitled to recognition and protection by the stipulations ol the tieaty ; and might have been located under the former Government and is correctly located now fro as to embrace the premises as tbey are surveyed on.l dercribed. Thy argument ib behalf of the defendants is that the patent for the Jimeno rancbo is conclusive evidence on the authority of these decisions that it Is correctly located, and that neither Semple nor bis vendees can Impeach its c-;-rri-otne_!S in a olia'erai action. Rut inasmuch as the final survey of the Colas rancho is equivalent to a patar.t, it falls within tbe same category; arid the same argument which establishes that the location of ihe Jimeno grant cannot be assailed of necessity applies to the location of tho Colus rancho. Assuming that neither can Impeach the survey of the other, and each holding a legal title tinder a claim derived limn Mexico, we are compelled to go behind the respective patents aad inquire Into the equities. On thi3 Inquiry we find, lor the reasons rlready stated, that the superior equity is In the claimants under the Colus "grant. Nor is it material which was first presented for confirmation, or first actually confirmed. If they bad been conflicting grant ; for the same land it might have become important to ascertain which was first granted, acd patsib'y which was first confirmed or presented for confirmation, though I express no opinion on thai point. Rut there Is no conflict between the two giants. The land included in the Coins was never granted to Jimeuo, but was only a portion of a larger tract, within which there was te be assigned to him by the Government the lesser quantity which was granted. Ejougb remained to satisfy bis grant without interfering witn the Colus ; and If Jimeno or his grantees have suffered damage from the action of the Government In locating the --rant so as to include the land granted, confirmed and tenally located under the Colus grant, which has the superior equity, no redress lor the grievance can ba afforded in this action, nor in ay other that I am aware of, except by a direct proceeding in the name of the United States to vacate the patent to Jimeno, with a view to a new an I different location of the land, so as to avoid the conflict in the two surveys. So far as the cases of Treadway vs. Semple and Semple vs. Wright contravene these views, they ought, in my opinion, to be overruled and the judgment In this action ou^ht to be affirmed. CROCKETT, J. Doff, Administrator, vs. Good [No. 1.9..9].— -This appeal is Irom tho judgment, upon the judgment roll alone. ■ , The plaintiff sues as the administrator of the estate of one R.-ittau Martin, deceased, and the complaint, after alleging the death of Martin, that letters of administration upon the estate of deceased were duly issued to him, and that he duly qualified as such administrator, and entered upon the discbarge or bis duties, etc., farther alleges that •■the said Brittan Martin, at toe time of bis death, lawfully owned, and was in the possession of, with older property, the following goods, chattels, credits and effects, viz.; 'twenty-two head of work oxen, each wonh $73 per bead; two large freight wagons, worth $300 eaca; eleven jokes and chains, worth $10 each; five thousand pounds of flour, then at Susanville, Lissen county, worth $ S per 100 lbs ; one horse, worth $76. and money due from sundry rtrsons at Humboldt and Reese River, in the Si ate of Nevada, collected by defendant, and appropriated to his own use, in the sum of $140. All of said pools, chattels, credits and effects, as a (foresaid, amounting to tbe aggregate value of $3,875 in lawlul money. That, thereafter, immediately upon the death of the said Brittan Martin, as plaintiff is informed and believes, tbe defendant took ill of said goods, chattels and credits hereinbefore enumerated into his possession, and appropriated the lame, and all thereof, to bis own use, and thereupon md thereby undertook and promised, in consideration ;hereof, to pay to the legal repres__t.ti.es of the said Brittan Martin, deceased, the value thereof as stated ■foresaid," etc. The defendant answered tbe above recited aliegailonsofthe complaint as follows: "Denies that at be lime of the death of tbe said Brittan Martin he vas in possession of or the owner cf twenty-two head if work oxen worth $75 per head, or two large wasins worth $500 each, or 5,000 pounds of flour worth $6 per 100 pounds, or one horse worth $75, or money due rom sundry persons lri^tbe sum of $140." - " But tbis defendant admits that wben said Brittan .Itr.lp. .1.4 _ . was tha owner of about eighteen head

g^~*^~~~~~~~~~~~~~[~~~~~~^~~~~~gggSS_ig3 s' oxen, wort*. stent $_ . psr btt&titt* .cad of ~_!eh ivtre stolen by the luolans on Mill creek, ml three mere ct which diti ou the road from Susinvl'le to Te* tiama county; t?o watf.es, worth about $100 each, .even jokes in. chains, old and worth no*biog. Tbe Hour uitntioied ia said complaint was bought and paid for by said .ivj.it. with the understanding that said Mirtin should lure one-half ol the profits, if any, that eras made on the lata *. Tho horse* that was mrutiuned in plaintiff's complaint was sold by defendant to Brit* tsn Mar and never paid for. Almits thai he collected for said Mrrttn lbe sum of $-0, and no more." Frcm tbe recitals in the judgment, as found of re©* ord, it appears tbat the cause was tried by the Court without a jury, snd that plaintiff, alter Intro luclcg evidence ten'iicg to estabisb that be was the duly appointed, qualified and acting sdmlnistralor ci the esta'e of Britten Martin, deceased, rested, and thereupon, without further or other ii.i-.ee, tt-e cause was siitinitied to the C art npon such evidence and tbe pleadings; aud thereafter, judgment was renden-tl and registered against ri-e de* fend i and In favor of plaintiff, ror the sum or $655 suu costs or suit, fr.m which judgment plsintiffappaala and now insists thai the Court erred in not rendering judgment against the defend** t lor tbe lull amount chimed in the <• uii-.i— . ■ 875 The complaint and answer were both verified, and It will be serve l,nj on a careful reading of the portions of the complaint ami answer above quoted, that the answer is evasive and tails lo meet the tuostactlal allegations of the complaint. The same ■- true ol tbat poi tioa of the a*-s>.er which assumed to traverse the specific .ions of tbe complain! respecting the representative character A the plaintiff; but the plaintiff seems to have regarded these allegations as put i.i issue by the answer, and introduced evidence tending to establish ihe same, and rested his case. Tbe deUntlant Introduced no evidence. '."• '■', •-"-.-" -." - As the case was submitted, the plaintiff, under tbe rules or pleading prescribed by our cede, was entitled lo a jod?ment for the lull amount claimed in bis comprint, us the answer failed to thny In such farm as to put iv issue any material allegation ol the complaint. The Hl!c_atlo. ol tb complatut that Martin, at the time . f bu death, owned acid was In possession of twenty-two head of work oxen, each woith $75, Is not put iv issue by a denial '* that irtin, at the lima of his death, was in the poa.esrion cf or the owner of twenty-two bead of week oxeu, worth $75 per head." It Is lint a literal conjunctive dental, .i denial of the litter and not a denial cf the essential substance and spirit of the allegation. It Is evasive and equivalent to an admission of the allegation, not only as to tbe number of work oxen, but the value of each as stated; and so as to every otber item of property or distinct proportion embraced in the second subdivision of the complaint. ' : v';---i If the defendant honestly believe or could show, tbat any one of the twenty-two work cxen was worth -a tew cents less tban ■'..'-. hi denial ln the form adopted might relieve his conscience, and would be, as a whole, literally true, ami still the allegation of tbe complaint In essential substance might also be true ami wculd remain uutraversed. Tbo rules cl pleasing, under our system, are Intended to prevent evasion, and ta require a denial of every specific averment in a sworn complaint, in substance and in spirit, and not merely a denial c-f Its literal truth, and whenever tbe defendant fa. ls to nuke such denial be admits the averment. (Smith vs. Richmond, IS Cal., 501 ; Blank m vs. Yallejo, H>., Go. ; Castro vs. Weimore, 16 Id., 350; lliggir.s vs. Wcrtcll. IS Id., 883; Woodwarth vs. Kucwlto;?, 22 Id., 1C0; Landers vs. Bslloo, 28 Id., 117 ; Men HI vs. Merrill, Ib , 203 -. Cam. den vs. Mullen, _9 Id., 6.1; Blood vs. Light, 81 Id., 115.) The admissions contained In the answer may have been designed as qualifications of the denial Immediately preceding; but, they ate so vague and indefinite that tbe Intrinsic itapotet'cy cf the denials are in co particular relieved thereby. From aught that appears, the admission that plain* tiff's intestate died seisad of about eighteen heal or oxen, worth about $.(> each ; two wagons, worth about. $100 each; seven yokes and chains, worth nothing, may relate to other and entirely distinct goods and chattels from those of similar character described in the complaint ; and the admission or statement in relation to the item cf flour is useless as a defense, without prcot. The statement relative to tbe horse is no answer or defense to that Item, even if proved as stated : and the admission *• that be collected for said Martin the sum of $20, and no more," decs not amount to a denial ot tine allegation in the complaint lhat delendant, subsequent to the decease of Martin, collected $140 belonging to hi.* c&tats. Judgment reversed and cause remanded tor further proceedings, with leave to defendant to am nd answer. SrRAGUK, J. We concur: CROCKETT, J., WYKR, O. J., RHODES, J. People vs. Kelly [No. 2,035].— defendant was indicted for the crime of perjury, committed by swearleg tr.lsely a3 to settlement, residence a:. el cultivation, belore the Uegister or the United stales Land Ofilcc in the Stockton uand District, In the matter of his apptica -.on to make proof or scttlemeat and cultivation of i tract of land— a part of the domain of ihe United etates, A demurrer to the indictment was interposed, on the ground, amang o hers, that the ittte Court had no jnriid'ction of the offense, because it was riot committed in any Court or tribunal ofthe State, eat aecalnst the late, but against ih- UaiteJ States, and that it is only cognizable in the Federal Courts. Tho demurrer was ovcrru ed, and, upon a subsequent trial, a conviction had. The flth section of tbe Act of Congress of 1851, entitled *- An Act in addition to an Act mie effectually

to provide lor lue pu.isnment oi certain crimes '.tain.!. the United States, and for her purposes," provides as follows i " And be It farther enacted, That in all casta vrLcre any oath, itlirmatioa or affidavit shall be made or taken before any Resi-'ter or Receiver, or ell tier or both of them, ot any Ic-cilLaad Office In the Cnited, Slates, or any Territory thereof, or wbeie any oath, affirmation or affidavit shall be made or I ken before any person authorised by the laws of any ,-t-t-i or Territory ot the United states to administer oaths or affirmations, cr take affidavit", and such oath?-, affirm* atio.-s or affidavits are umde, used or filed in any of said local Lind Offices, or in the General Land Ofiio., as well tn cases arising under any or either of the orders, regulat ons, or Instructions concerning any of ibe putlic lauds of the United States, issued by tte Commissioner of : he Geneial l.an i Office, or other proper officer ot the Government of tiie Unttcd Stales, .i , under tbe laws oi tbe United States, in anywise relating to or aft ct tug any light, claim or title, or any couteit therefor, to any of tbe public lands ol the United States . -mil any person or persens shall, taking i-uch oath, affirmation or affidavit, knowingly, wiSully or corruptly swear tr affirm falsely, the same shall be deemed and taken to be perjury, and the person or persons utility thereof shall, upon coDvijtion, he liable to be punishment prescribed fjr that often by tue laws .i the United States." Ihe ,1,1... second section of our own State Ciimlnal code, under which th defendaat was indicted, reads as follows : " livery person having tab a lawful oath, or made affirmation in any judicial proceeding, or tn any other mattes where, by law, an oath or affirmation is required, who shall swear or affirm willfully, corruptly and falsely, in a matter material to the issue or (i ml In question, shall inbb ru any otber person to swcir or affirm as aforesaid, shall be deemed guilty of perjury or subornation of perjury (as the case may bt), and upon conviction thereof shall be punished by imprisannient in the State Prison for any term not less than one nor more than iourteen years." There can be no doubt that the acts charged co _stituto an offense against the laws of tbe United ..rates, under the section of the statute quoted, but it is not so clear that It i- embrace! within the terms of our cwn statute. The ''judicial- proceeding" or "otber matter where, by law, an oath or affirmation Is required," may well refer to judicial proceedings and oatbs reqnii -i by the laws of the State only. It is not so clear that it was designee! to extend to any ether. The State tribunals have no power to punish crimes linsl the laws of the United. Slates', as such. The' same act may. in seme Instances, be an offense against the laws of b tb, and it is only as an offeii-e against tbe State laws teat it can be punished in any event. That the offense charged i* not, cognizable in the State Courts, th* cases of the State vs. Adams (1 Blackf.. 147) and State vs. Pike (16 N. 11., S3) are antuoriiies directly in point. The Hist is entirely similar to tbe present case, the affidavit constituting the offense being with reference to the settle*, ment cl the defendant on the public lauds. In tbe second case, the perjury charges was committed in a proceeding under the National Bankrupt Act. Tho Court diyiin'.'uinlit-j'it from tbe class of cases like) Fox: vs. Toe Slate of Ohio (5 How., 410); Moore vs. Illinois (11 How . 11); and People vs. White (34 Cal., I_3). Or» this pel in State v?.* Pike, the Conn say ; "Happily for us, however, we are ol opinion that the classes of ciime' we have thus referred to. although there Is some analogy between them and the case before us, do not necessarily govern this case. There is a di&iinction which we think is conclusive, whatever may be the, true principle applicaole to them. In those eases the acts done and arged as violations of the laws of both Governments are not done m the course cf the administration of the laws of either Government; but tho matters from which the charge now before us arise., are alleged to have occurred under and In the course of toe execution of the laws of the United States. T fl0 se lews required certain things to he done. Congress bad the rutht to prescribe how they sbould ' pc uone to regulate the duties of all persons who acteet under the law, and to prescribe "penalties lor the violation of such duties. In such case, if acts aro done which, if transact J under tb. ; la^g of thi* State would have constituted offenses within the provisions of our Criminal code, yet, beiug done in pursuance of the laws of another Government (bavin* the sole power to regulate the whole proceedicg), authorizing the act to be done, prescribing the mode, imposing the duty and affixing the penalty for the violation ol it, the aca cannot be regarded as having teen done under the sanction of the laws of this State, so as to subject the parties to punishment unoer those laws. Mr. Justice Story says, exclusive jurisdiction is uniformiy attendant upon exclusive legislation. (2 Mason Co. United States vs. Cornell.) See, also, the .pinion of Mr. Justice McLean (I) Peters, 261); United States vs. Bailey.-' <.

This distinction seems to be properly taken. It follows that the demurrer should have been sustained. Juigment reversed. SAWYpR, C.J. We concur CfiOCKEI'T, 0 §PIUGUE,J ' ■ RHODES, J." Harding vs. Cowing [Be, 1,420j.-The t; in , e for filingbnels in this case having long since ex*-,, re and there being no briefs or points and authorities on file, the judement is affirmed. ; • :>? : "..: CROCKET J We concur: RUODS.*, J. SPRAGUE, J., SAWYER, C. J. *" *"-" - - -?&?__?,-? br,t * Re across the Connecticut river at Middleton will bo I,B*B feet lon<r, having a draw of two openings of 100 feet each. The whole draw is to be 303 feet lons, and is to open and shut in one minute ami thirty seconds. The track is to be about 42 feet above ordinary water mart. Tbe bridge is to have a strength equal to two tons to the running loot, beside its own weight, and is to be capable of sustaining a train ol locomotives passing over it at tho rate ol sixty miles an hour. m l.v Yorkville, Illinois, Martin Boomer has for two or three seasons run a mowing machine along the road through his farm, and the result it : that a crop of white clover has taken tb| -lace of mayweed and other noxious weeds, ".