16 N.M. 754 | N.M. | 1912
Lead Opinion
OPINION OF THE COURT.
The Preston Beck grant was made December 23, 1823,- by Bartolomé Baca, the then political chief of New Mexico. The independence of Mexico dated from February 24, 1821. On that date the Kingdom of Spain lost its jurisdiction over what is now Mexico and the sovereignty of the Mexican nation commenced. Thereafter the colonization law of the Emperor Iturbide was adopted, January 4, 1823 ; was in force only a short time having been suspended by the decree of April 11, 1823, and super-ceded by the law of August, 1824. From this it will be seen that the Preston Beck grant, made on December 27, 1823, was made during the suspension of the Iturbide colonization law of January 4, 1823. The question presented is whether or not the political chief of the Province of New Mexico ljad authority to make the Preston Beck grant. Counsel for appellees contend that both by express action of the Mexican government and legal presumption, it must be decided that the Beck grant was a perfect grant and made by legal authority. Both hero and in the court below, as stated in the opinion of the learned trial judge, no question was raised that the grant as made would not have been valid if made by the same officer acting under the Spanish government. It is assumed by both ¡oarties to this action, as we shall assume, that under the government of Spain the political chief would have had the power to make grants of public lands. It is contended by appellees that the Mexican government by certain acts hereafter discussed continued in office the officers of Spain and continued them in. the exercise of all the power and authority they may have had -under the Spanish government. The acts referred to are certain portions of the plan of Iguala, the treaty of Cordova and an order of the provisional council, dated October 5, 1821. In the case of Ely’s Administrator v. United States, 171 U. S. 220-228, these various acts as far as pertinent here are thus stated: “On February 24, 1821, a declaration of independence was made known on the form known as the plan of Iguala, and this declaration of independence was made good by the surrender of the City of Mexico on September 27, 1821. The fifteenth section of this plan provided that, ‘the junta will take care that all .the revenues of departments of the state remain without alteration whatever, and all the employees, political, ecclesiastical, civil and military, will remain in the same state in which they exist today/ On August 24, 1821, what is known as the Treaty of Cordova was signed at that village by General Iturbide for Mexico, and Viceroy O’Donoju for Spain, the latter, however, having no previous authority from Spain, and this treaty was by Spain afterwards repudiated. This treaty provided that ‘the provisional junta was to govern for the time being in conformity with existing laws in everything not opposed to the plan of Iguala, and until the Cortes shall form the constitution of lire stated Immediately after the surrender of the City of Mexico a provisional council or junta, consisting of thirty-six members, was created under the plan of Iguala, which assumed the control of the government, and on October 5, 1821, this provisional council promulgated the following order (Reynolds, p. 95) : ‘The sovereign provisional council of government of the Empire of Mexico, considering that from the moment it solemnly declared its independence from Spain, all authority for the exercise óf the administration of justice and other public functions should emanate from said empire, has seen fit to habilitate and confirm all authorities as they now are, in conformity with the plan of Iguala and the treaty of the Village of Cordova, for the purpose of legalizing the exercise of their respective functions.”
' Conceding that by these acts the political chief of the Province of New Mexico was continued in the exercise of his public functions, can it be said that they continued such officer in the exercise of the power he derived from the King of Spain to alienate the public domain? These acts above referred to were necessary to secure a continuation of orderly government and prevent a condition of anarchy, and if there is nothing in them to declare a broader purpose they should not be construed to effectuate a purpose beyond that which satisfies their language. It would not be contended for a moment that the new sovereignty intended to continue in force any law which' did not recognize it, any law at variance with its paramount power and authority. On the other hand, it is equally clear that it was its’ intention that all the laws in force in Mexico at the date of the extinguishment of the sovereignty of Spain, should remain in force, except so far as they affected the political institutions of the New Mexican government. This same result is affected by the “doctrine that the laws of conquered or ceded country, except so far as they may affect the political institutions of the new sovereign, remain in force after the conquest or cession until changed by him.” Moore v. Steinbach, 127 U. S. 70-81.
It is not to be questioned that in an inquiry in which it was important to determine whát was the law of ‘descent and distribution, for instance, in Mexico immediately after its independence and there being no new law promulgated by Mexican authority, in that event the law in force in Mexico previous to its independence would control.
The change of -sovereignty affected by the overthrow of Spain and the establishment of the Mexican nation was much the same as the change of sovereignty affected by the cession of New Mexico to the United States. In the case of Leitensdorfer et al v. Webb, 20 How. 176, the Supreme Court, commenting on the results of such change, said: “By this substitution of a new supremacy, although the former political relations of the inhabitants were dissolved, their pi’ivato relations, their rights vested under the government of their former allegiance, or those arising from contract or usage, remained in full force and unchanged, except so far as they were in their nature and character found to be in conflict with the constitution and laws of the United States, or with any regulations which the conquering or occupying power should ordain. Amongst the consequences -which would be ordinarily incident to the change of sovereignty, would be the appointment and'control of the agents by whom, and the modes in -which, the government of the occupant should be administered—this result being indispensible, in order to secure those objects for which such a government is usually •established. This is the principle of the law of nations, as expounded by the highest authorities.”
The act of habilitation, above referred to, was adopted by the provisional council on October 5, 1821, in conformity with the treaty of Cordova and the plan of Iguala. The provisional council or junta remained in power until the assembling, on February 24, 1822, of the Congress, elected under the provisions of the plan of Iguala and the treaty of Cordova, for the purpose of framing a constitution. (Baynolds, p. 31). From the foregoing, it is very-evident that the government of Mexico during this period was temporary and provisional in character. That it, while holding in its hands the supreme power, perhaps, yet it was only clothed with that power bjr necessity until, as was contemplated and as was afterwards done, á constitution might be adopted.- In such a case it would seem that the temporary government had power only to preserve order, to maintain a condition of political non-action until the new sovereignty should be manifested through the, at that time well recognized, forms of constitutional government. It would seem, therefore, that a proper construction of the various acts relied upon by appellees .must be construed in the light of these conditions and should not be given a construction to include matters and things certainly not within their exact letter nor within their spirit.
It is significant that of the ten grants made in New ‘Mexico between the date of Mexican independence and the law of August 18, 1824, of which we have any records, four including the Preston Beck grant were confirmed by Act of Congress and the remainder were rejected by the Court of Private Land Claims.
“The grants confirmed by Congress are: Ojito del Pdo Gallinas; date of grant, December 23, 1823; confirmed by Congress, June 21, 1860. Casa Colorado; date of grant, September 15, 1823; confirmed by Congress, December 22,, 1858. Brazito grant; date of grant, 1822 or 1823; confirmed by Congress June 21, 1860. Anton Chicogrant; date of grant, February 13, 1822; confirmed by Congress June 21, 1860. As shown by the docket of the Court of Private Land Claims, the following claims were presented to the court for confirmation and rejected. The decrees of the court are not accessible: No. 59. Juan G-icl or John Heath grant (Dona Ana county, 108,000 acres); date of grant, December 27, 1822; decree rejecting claim filed June 26, 1895, Court of Private Land Claims. No. 142, No. 204, No. 206. Yallecito de Lobato grant; dated February 23, 1824. Rio Arriba county, 114,400 acres. Claim rejected and petition dismissed October 5, 1897, by Court of Private Land Claims. February 4, 1898, appealed and allowed. No. 174; Jose Ignacio Martinez grant. Taos count}'', 500 acres. Grant dated October 30, 1821. Dismissed and grant rejected January 31, 1898, by Court of Private Land Claims. No. 175. Felipe Medina grant. Taos county, 300 acres. Dated July 24, 1823. Petition dismissed and grant rejected January 31, 1898, by Court of Private Land Claims No. 176. Manuel Fernandez grant, Taos county. Dated December 20, 1823. Petition dismissed and grant rejected January 31, 1898, by Court of Private Land Claims. No. 241. Paraje del Rancho grant. Taos county, 90,000 acres. Dated December 27, 1821. Petition dismissed May 17, 1897, by Court of Private Land Claims.
In the case of Leese v. Clark, 3 Cal. 16-23, the court said: “Prior to the Mexican Revolution which produced the plan of Iguala, February 24 1821, the unappropriated lands in this corintr}' constituted a part of the domain of the Spanish monarchs, who alone represented and exercised-the sovereignty of the Spanish nation. The royal governors were the mere deputies of the King, and exercised the sovereignty in his name. His will, manifested in the form prescribed by his regulations, operated as a valid alienation of the public domain. His governors, acting under bis authority, and in' his name, were the mere executprs of his will — whence the law or decrees of the kings, and the regulations and usages of their governors, sanctioned by royal approval or acquiescence, afforded the. proper tests by which to determine the validity of grants of land belonging to the nation whose sovereignty those kings represented and exercised, and the}' are accordingly consulted and relied upon by the courts of the United States'in adjudicating Spanish claims in Florida and Louisiaña. • But, on the 24th of February, 1821, the relation between Mexico and Spain ceased; and the sovereignty became vested in the Mexican nation; and since that lime no valid alienation could be made in any of the territories of Mexico, except by an act of Mexican sovereignty. The royml decrees, regulations and usages, ceased to have any effect whatever as to subsequent grants of land. This point ivas determined by the Mexican Congress, in a case which arose shortly after the independence of that government, and has ever since been acquiesced in. On the 17th of January, 1821, the elder Austin obtained an inchoate grant of lands from the royal governor of Texas. On the 19th of August, the Mexican governor of that province (Martinez), assuming the powers properly exorcised by the royal governors, modified the grant in favor of the younger Austin. Had the royal laws and usages still continued to retain their force, the acts of Martinez would have been valid, but the Mexican government, at the same time it recognized the act of the royal governor as valid, because done before the change of sovereignty, refused to confirm the act of its own governor, done after the change, on the ground that the sovereignty could be exercised only by the Mexican nation. The subject attracted public attention, and the Mexican government were about passing a general law in relation to the alienation of public lands, when I turbid e forcibly dispersed the members of that body, and caused himself to be proclainied emperor. On the 4th of January, 1823, live promulgated a general law on the subject, but, being shortly afterwards deposed, Congress, on the 11th of April, 1823, suspended that law. On the 18th of August, 1824, Congress enacted a general colonization law, prescribing the mode of granting public lands throughout the Mexican territory. (White’s Recop. 561, 8, 71, 76 and 82).
Stephen F. Austin, alluded to in the case just cited as the "younger Austin,” on November 1, 1829, addressed to the "settlers in what is called ‘Austin’s colony' ” in Texas, on account of his negotiation with the Mexican government, in which he says that at the time of his arrival in the City of Mexico on the 29th day of April 1822, “the national Congress had been in session since the 24th of February of that year. The form of government as then established was a limited monarchy, in conformity with the plan of Iguala and treaty of Cordova, and the Spanish constitution was provisionally adopted. The executive department was administered by a regency, of which the generalissimo, Don Agustín. Iturbide, was president.” After describing the unsettled conditions then existing, he continues, “on examination into the state of this colonization business, he (Austin) found that the regency had decided that the Governor of Texas, Martinez, was not sufficiently authorized to stipulate what quantity of land the-new settlers were to get, as he did by his letter to Austin, of the 19th of August, 1821, and that this point must be settled by a law of Congress, for which purpose all documents- relative to said new settlement were transmitted-by the regency to Congress.”
There seems to have been no doubt of the validity of the grant to Moses Austin, a Spanish subject, made under the Spanish government, but tire regency and the Congress of Mexico decided that that power of the governor was abrogated by the overthrow of Spanish rule. It was an interpretation of the plan of Iguala, treaty of Cordova and order of October 5, 1821, by the supreme power of Mexico and furnishes us the best means of construction. U. S. v. Sherbeck, 27 Fed. Cas. 16275. Moreover, the language of these acts, the conditions of the country in which they were promulgated, all bear so close an analogy to the principles of the law of nations respecting the laws of conquered or ceded countries as to warrant us in saying that such were their manifest intent and effect. If this be so, the case of More v. Steinbach, 127 U. S. 70-81, in which the court said: “The doctrine invoked by the defendants, that the laws of a conquered or ceded country, except so far as they may affect the political institutions of the new sovereign, remain in force after the conquest or cession until changed by him, does hot aid their defense. That doctrine has no application to laws authorizing the alienation of any portions of the public domain, or to officers charged under the former government with that power. No proceedings affecting the rights of the new sovereign over public property can be taken, except in pursuance of his authority on the subject,” is in point and decisive and we so apply it .
In the case of Ely’s Administrator v. U. S., supra, relied upon by appellees in this connection does not hold that the validity of the sale in that case depended solely on the power of the officer to make it. On the contrary, it is quite evident from a reading of that case, that, had Hie validity of the sale depended solely on the power, of the officer to make it, the court would have held it invalid. Moreover, the decision in Ely’s Administrator case was upon facts and under laws bearing no analogy to the case at bar. In that portion of Mexico where the land involved in Ely’s Administrator case was situated public lands were sold by intendants of the royal treasury. We know of no law of Spain providing for the sale of land in the Province of New Mexico and the lands in New Mexico which during those times became the subject of pirivate ownership became so by grants, either as rewards to officials, or to settlers to encourage industry and the occupation of the country. In that case the land was sold, in this case the land was a gratuitous grant. In that case, the purchase price of the land was received by and retained by the Mexican government and afterwards the sale was ratified and confirmed by a Mexican official whose power and authority to bind the Mexican government the court held to be undoubted; in this case nothing further was done by any Mexican official to confirm and ratify the act of the political chief. Speaking of the subsequent action of the Mexican official who confirmed and ratified the sale in Ely’s case and of the extent of his powers, the court -said: “When an office is created with such large powers as these and the incumbent thereof reviewing proceedings theretofore had by prior representatives of the government, and finding that a sale made by one of such prior officers has resulted in the payment of the cash proceeds thereof into the public treasury, confirms his action, ratifies his proceedings and issues appropriate title papers therefor, it would seem that any doubts which might hang over the power of the prior officer were put at rest, and that thereafter no question could be raised as to the validity of the sale.” Efy’s Administrator v. United States, supra, p. 233.
Counsel for appellees contend that the fact that the officers of the Mexican government continued to make disposition of the public domain in accordance with the laws of Spain raises a legal presumption in the case at bar that-authority to make thi-s grant existed. As sustaining their position on this point counsel cites the cases of United States v. Peralta, 19 How. 347; U. S. v. Arredondo, 6 Pet. (591. In the case of Florida v. Furman, 180 U. S. 402, a suit brought by claimants of a Spanish land grant to remove as.clouds from their title, patents issued by the United States to land embraced within the land grant, the court, speaking of the Arredondo and Peralta cases, said: “ * * * * it was" held in view of the rules of decision presented by the statutes under which the courts exercised jurisdiction, that it was the’ intention of Congress that a claimant should not be required to offer proof as to the authority of the official executing the grant, but that the court would assume as settled principle that a public grant was to lie taken as evidence that it was issued by lawful authority,'” and that “in Crespin v. United States, 168 U. S. 208, which was a case under the act of 1891, it was held that the presumption indulged in United States v. Arredondo could not supply the want of power in the alleged granting officer.” In the case at bar, as we have said, complainants were not proceeding under any act of Congress permitting the United States to be sued, but as at common law, and on the basis of absolute legal title. That title they were obliged to make out and could only avail themselves of such presumptions as would ordinarily obtain.”
In the case at bar the appellees seek to bring themselves within the reservations of the act of confirmation. Their joosition is, that at the time Congress confirmed the Perea grant that the United States had no title to convey. To establish this- fact they must prove a perfect title, and to do that show affirmatively that the officer making the grant had power to make it.
The court below held that the Preston Beck grant had priority over the Perea grant, because the claimants of the former grant were first to apply to the surveyor general of New Mexico and secure his confirmation of their claim, and, “if the confirmatory act and subsequent patent operated as a deed to convey title from the United States to the confirmee, they would relate back to the inception of the proceedings necessary in order to obtain them, which in this case was the filing of the petition before the surveyor general. In the eases cited by counsel for the appellees, the patents or grants related back to the inception of the right .to the patent. In other words, before the patents issued it had been determined by some intermediary tribunal that the claimant-was entitled to a patent, or where the claimant by virtue of settlement and complying with the law became entitled to a patent. In all these casesihe claimants before receiving patents had title. The patent followed as a matter of course. Before it issued the equitable title was in the claimant, the government holding the legal title for his benefit. In this case the action of the surveyor general amounted to nothing at all. Between his report and the action of Congress’the claimant bad no right or title. In the case of Pinkerton v. Ledoux, 129 U. S. 346-351, the court said: “The Surveyor General’s report is no evidence of title or right to possession. Iiis duties were prescribed by the act of July 22, 1854, before referred to, and consisted merely in making inquiries and reporting to Congress for action. If Congress confirmed a title reported favorably by him it became a valid title; -if not, not. So with regard to the boundaries of a grant; until his report was confirmed b]^ Congress, it had no effect to establish such boundaries, or anything else subservient to the title.” The act did not even provide for applications to the surveyor general. It was his duty “under the instructions of the Interior Department to ascertain the origin, .nature, character and extent of all claims to lands under the laws, usages and customs of Spain and Mexico.” His instructions from the secretary of the interior were: “You will commence your session by giving proper notice of the same in a newspaper of the largest circulation in the English and Spanish languages, and will make known your readiness to receive notices and testimony in support of the land claims of individuals derived before the change of government. You will require claimants in every case, and give public notice to that effect, to file a written notice setting forth tlie name of “present claimant,” name of “original claimant,” nature of claim, whether inchoate or perfect, its date, from what authority the original title was derived, with a reference to the evidence of the power and authority under which the granting officer may have acted, quantity claimed, locality', notice and extent of conflicting claims, if any, with a reference to the documentary' evidence and testimony relied upon to establish the claim and to show a transfer of right from ijie ‘original grantee’ to ‘present claimant.’ ” But this order was not effective to give rights which the law did not give. That the powers of the surveyor general of New Mexico and the board of commissioners of California were so dissimilar that the case of Beard v. Federy, 3 Wall. 478. is not in point here is readily seen from the following statement from the case: “After our conquest of California, in 1846, Congress, by act of March 3, 1851, ‘to ascertain and settle the private land claims’ in that state constituted a board of commissioners, in the nature of a judicial body, before which claims to land there were to be investigated. Every person claiming lands there ‘by virtue of any right or title derived from the Spanish or Mexican governments, was to present his claim to this board with the documentary and other evidences of it. Notices of depositions, when taken, were to be given to the law officers of the United States. In case of confirmation of the claim, an appeal was given the United States to the district court; in which case, say's the act (Par. 10), that court shall proceed to render judgment upon the pleadings and evidence in the case, and upon such further evidence as may be taken by order of the said court. If the decree in that court was adverse to the government, an appeal was given to this court. The act declares that ‘for all claims finally confirmed by the said commissioners or lw the district court, or by the supreme court, a patent shall issue to the claimant,’ but that such patent shall be ‘conclusive bótween the United States and the said claimants only, and shall not affect the interests of third persons.’ It declares, moreover, ‘that all lands, the claims to which shall not have been presented to the said commissioners within two years after the date of the act, shall be deemed, held and considered as part of the public domain of the United States.” Speaking of the effect of a decision by -the board, the court said: “The board having acquired jurisdiction, the validity of the claim presented,, and whether it was entitled to confirmation, were matters for it to determine, and its decision, however erroneous, cannot be collaterally assailed on the ground that it was rendered'upon insufficient evidence.”
For the reasons given the judgment_of the lower court will be reversed and the cause remanded for further proceedings in accordance with this opinion, and it is so ordered.
Justices Wright and Roberts, not having been on the bench when this cause was submitted, did not participate in this opinion.
Rehearing
OPINION ON MOTION! FOR REHEARING.
This view of the law being conclusive of the cause and it being stipulated by counsel that there shall be a final judgment in this court pursuant to the court’s opinion, rather than a remanding of the cause to the trial court, the Clerk will enter a judgment in this court declaring the rights of the respective parties to be the ownership of an undivided moiety in the overlap between the Beck and Perea grants. Counsel may prepare a judgment in accordance herewith.