If an act of Congress is in conflict with a treaty of the United
States with a foreign power, this Court is bound to follow the
statutory enactments of its own government.
No title to land in California dependent upon Spanish or Mexican
grants can be of any validity which has not been submitted to, and
confirmed by, the board provided for that purpose under the Act of
March 3, 1851, 9 Stat. 631, or, if rejected by that board,
confirmed by the district court or by the Supreme Court of the
United States.
The case which raised the federal question was stated by the
Court in its opinion as follows:
This is a writ of error to the Supreme Court of the State of
California.
The action was in the nature of ejectment, brought in the
Superior Court of the County of Los Angeles by Dominga Dominguez
against Brigido Botiller and others to recover possession of a
tract of land situated in said county known as "Rancho Las
Virgenes." The title of the plaintiff was a grant claimed to have
been made by the government of Mexico to Nemecio Dominguez and
Domingo Carrillo on the 1st day of October, 1834, but no claim
under this grant had ever been presented for confirmation to the
Board of Land Commissioners appointed under the Act of Congress of
March 3, 1851, 9 Stat. 631, "to ascertain and settle the private
land claims in the State of California," and no patent had ever
issued from the United States to anyone for the land or for any
part of it. It appeared that the defendants, Botiller and others,
prior to the commencement of the action, had settled upon and
severally were in the occupancy of the respective parcels or tracts
of land claimed by them, and had improved and cultivated the same
and were in the possession thereof with the purpose
Page 130 U. S. 239
and intention of holding and improving the several tracts of
land so severally held, as preemption or homestead settlers,
claiming the same to be public lands of the United States. It was
shown that they were competent and proper persons to make
preemptions or homestead claims, and that the land in controversy
was within the territorial limits of she so-called "Rancho Las
Virgenes."
On this state of facts the judge of the inferior court
instructed the jury as follows:
"First. It is made my duty to construe the written instruments
received in evidence in this case, and to declare their legal
effect. I therefore instruct you that the documents, plaintiff's
Exhibits A and B, and the acts evidenced thereby under the Mexican
law in force at the time they were made, constituted a perfect
grant, and operated to vest in the grantees therein named all the
right, title, and interest of the Mexican government. They vested
as much title under the laws of Mexico in the grantee as does a
patent from the United States to the patentee under our system of
government."
"Second. The title to the land by grant from Mexico being
perfect at the time of the acquisition of California by the United
States, the grantee was not compelled to submit the same for
confirmation to the Board of Commissioners, established by the Act
of Congress of March 3, 1851, nor did the grantee, Nemecio
Dominguez, forfeit the land described in the grant by a failure to
present his claim for confirmation before said Board of
Commissioners, and the title so acquired by the grantee may be
asserted by him or his successor in interest in the courts of this
country."
To this ruling and instruction the defendants excepted. Judgment
was rendered for plaintiff, which was affirmed by the Supreme Court
of the State of California, and to that judgment this writ of error
is directed.
Page 130 U. S. 242
MR. JUSTICE MILLER delivered the opinion of the Court.
The principal error assigned, and the only one necessary to be
considered here, is in the following language:
"The court erred in holding that under the said Act of Congress
of March 3, 1851, it was not necessary for each and every person
claiming lands in California by virtue of any right or title
derived from the Spanish or Mexican governments to present such
claim to the Board of Land Commissioners appointed under said
act."
The question presented is an important one in reference to land
titles in the State of California, and is entitled to our
Page 130 U. S. 243
serious consideration. Although it has been generally supposed
that nearly all the private claims to any of the lands acquired by
the United States from Mexico by the treaty of peace made at the
close of the Mexican war have been presented to and passed upon by
the board of commissioners appointed for that purpose by the act of
1851, yet claims are now often brought forward which have not been
so passed upon by that board, and were never presented to it for
consideration, and if the proposition on which the Supreme Court of
California decided this case is a sound one -- namely, that the
board constituted under that act had no jurisdiction of, and could
not by their decree affect in any manner, a title which had been
perfected under the laws of the Mexican government prior to the
transfer of the country to the United States -- it is impossible to
tell to what extent such claims of perfected titles may be
presented, even in cases where the property itself has by somebody
else been brought before that board and passed upon.
The proposition seems to have been occasionally the subject of
comment in the Supreme Court of California in the early days, after
the land commission had ceased to exist, and it has also been
frequently considered in decisions of this Court of the same
period. It is urged very forcibly by counsel for the plaintiff in
error that this Court has fully decided against it in several well
considered cases, and that previous to the case of
Minturn v.
Brower, 24 Cal. 644, the decisions, or at least the
intimations, of the Supreme Court of California were also against
the doctrine.
By the treaty of peace, known as that of Guadalupe Hidalgo, of
February 2, 1848, 9 Stat. 922, which closed the controversies and
the war between the United States and Mexico, a cession was made of
a very large territory by the government of Mexico to the
government of the United States. This was a transfer of the
political dominion and of the proprietary interest in this land,
but the government of Mexico caused to be inserted in the
instrument certain provisions intended for the protection of
private property owned by Mexicans within this territory at the
time the treaty was made, and it may be conceded
Page 130 U. S. 244
that the obligation of the United States to give such
protection, both by this treaty and by the law of nations, was
perfect.
That portion of this territory which afterwards became a part of
the United States under the designation of the "California" had
been taken possession of during the war, in the year 1846. Most of
it was in a wild state of nature, with very few resident white
persons, and very little land cultivated within its limits. Article
11 of the treaty describes it in the following language:
"Considering that a great part of the territories which, by the
present treaty, are to be comprehended for the future within the
limits of the United States is now occupied by savage tribes who
will hereafter be under the exclusive control of the government of
the United States and whose incursions within the Territory of
Mexico would be prejudicial in the extreme, it is solemnly agreed
that all such incursions shall be forcibly restrained by the
government of the United States whensoever this may be
necessary."
This extract from the treaty shows the character of the country
which was acquired by the United States under that instrument.
Very soon after the American army took possession of California
in 1846, it was discovered that rich mines of the precious metals
were abundant in that country, and a rush of emigration almost
unparalleled in history to that region commenced, which was
continued from that time on for many years. It was in this
condition, as to population, of the territory itself, with a
proprietary title in the United States to a vast region of country
included within its limits, in which miners, ranchmen, settlers
under the Mexican church authorities, and claimants under Mexican
grants were widely scattered, that the State of California was
admitted into the union, and the necessity was presented for
ascertaining by some means the validity of the claims of private
individuals within its boundaries and to establish them as distinct
from the lands which belonged to the government. To this end,
Congress passed a statute on the 3d day of March, 1851,
entitled
Page 130 U. S. 245
"An act to ascertain and settle the private land claims in the
State of California." 9 Stat. 631. The first section of that
statute reads as follows:
"SEC 1. That for the purpose of ascertaining and settling
private land claims in the State of California, a commission shall
be and is hereby constituted which shall consist of three
commissioners, to be appointed by the President of the United
States, by and with the advice and consent of the Senate, which
commission shall continue for three years from the date of this
act, unless sooner discontinued by the President of the United
States."
Several of the succeeding sections are devoted to providing for
officers, declaring their duties, directing the mode of taking
depositions, and regulating the sessions of the commissioners, the
administration of oaths, and other matters. The eighth section is
as follows:
"SEC. 8. That each and every person claiming lands in California
by virtue of
any right or title derived from the Spanish or
Mexican government shall present the same to the said
commissioners, when sitting as a board, together with such
documentary evidence and testimony of witnesses as the said
claimant relies upon in support of such claims, and it shall be the
duty of the commissioners, when the case is ready for hearing, to
proceed promptly to examine the same upon such evidence, and upon
the evidence produced in behalf of the United States, and to decide
upon the validity of the said claim, and, within thirty days after
such decision is rendered, to certify the same, with the reasons on
which it is founded, to the district attorney of the United States
in and for the district in which such decision shall be
rendered."
The ninth and tenth sections provide for appeals by the claimant
and by the government from the decisions of this commission, first
to the district court of the United States within that district,
and from thence to this Court.
The eleventh section, prescribing the rule by which the
commissioners shall decide these cases, is as follows:
"SEC. 11. That the commissioners herein provided for, and the
district and supreme courts, in deciding on the validity
Page 130 U. S. 246
of any claim brought before them under the provisions of this
act, shall be governed by the Treaty of Guadalupe Hidalgo, the law
of nations, the laws, usages, and customs of the government from
which the claim is derived, the principles of equity, and the
decisions of the Supreme Court of the United States, so far as they
are applicable."
Section 13 declares:
"That all lands, the claims to which have been finally rejected
by the commissioners in manner herein provided, or which shall be
finally decided to be invalid by the district or supreme court,
and all lands, the claims to which shall not have been
presented to the said commissioners within two years after the date
of this act, shall be deemed, held, and considered as part of the
public domain of the United States, and for all claims finally
confirmed by the said commissioners or by the said district or
supreme court, a patent shall issue to the claimant upon his
presenting to the General Land Office an authentic certificate of
such confirmation and a plat or survey of the said land, duly
certified and approved by the Surveyor General of California, whose
duty it shall be to cause all private claims which shall be finally
confirmed to be accurately surveyed, and to furnish plats of the
same,"
etc.
"SEC. 15. That the final decrees rendered by the said
commissioners, or by the district or Supreme Court of the United
States, or any patent to be issued under this act, shall be
conclusive between the United States and the said claimants only,
and shall not affect the interests of third persons."
Two propositions under this statute are presented by counsel in
support of the decision of the Supreme Court of California. The
first of these is that the statute itself is invalid as being in
conflict with the provisions of the treaty with Mexico and
violating the protection which was guaranteed by it to the property
of Mexican citizens, owned by them at the date of the treaty, and
also in conflict with the rights of property under the Constitution
and laws of the United States so far as it may affect titles
perfected under Mexico. The second proposition is that the statute
was not intended to apply to claims which were supported by a
complete and perfect title
Page 130 U. S. 247
from the Mexican government, but, on the contrary, only to such
as were imperfect, inchoate, and equitable in their character,
without being a strict legal title.
With regard to the first of these propositions, it may be said
that so far as the act of Congress is in conflict with the treaty
with Mexico, that is a matter in which the court is bound to follow
the statutory enactments of its own government. If the treaty was
violated by this general statute, enacted for the purpose of
ascertaining the validity of claims derived from the Mexican
government, it was a matter of international concern, which the two
states must determine by treaty, or by such other means as enables
one state to enforce upon another the obligations of a treaty. This
Court, in a class of cases like the present, has no power to set
itself up as the instrumentality for enforcing the provisions of a
treaty with a foreign nation which the government of the United
States, as a sovereign power, chooses to disregard.
The Cherokee
Tobacco, 11 Wall. 616;
Taylor v. Morton, 2
Curt. 454;
Head Money Cases, 112 U.
S. 580,
112 U. S. 598;
Whitney v. Robertson, 124 U. S. 190,
124 U. S.
195.
The more important question, however, is does the statute, in
its provisions for the establishment and ascertainment of private
land claims in that country which was derived from Mexico, apply to
such as were perfected according to the processes and laws of
Mexico at the time the treaty was entered into, or is it limited to
those imperfect and inchoate claims where the initiation of the
proceedings necessary to secure a legal right and title to the
property had been commenced, but had not been completed?
There is nothing in the language of the statute to imply any
such exclusion of perfected claims from the jurisdiction of the
commission. The title of the act, so far as it can be relied on,
repels any such distinction; it is "to ascertain and settle the
private land claims in the State of California;" and the first
section, above quoted, uses the same terms, "that, for the purpose
of ascertaining and settling private land claims in the State of
California, a commission shall be, and is hereby, constituted,"
etc. The eighth section, which prescribes the functions of the
court, and its duties, says
"That
each and every
Page 130 U. S. 248
person claiming lands in California by virtue of
any right
or title derived from the Spanish or Mexican government shall
present the same to the said commissioners when sitting as a board,
. . . and it shall be the duty of the commissioners, when the case
is ready for hearing, to proceed promptly to examine the same,"
etc.
In all this there is no hint or attempt at any distinction, as
to the claims to be presented, between those which are perfect and
those which are imperfect in their character. On the contrary, the
language of the eighth section is as precise and comprehensive as
it could well be made, in that it includes every person claiming
lands in California "by virtue of any right or title derived from
the Spanish or Mexican government."
The fifteenth section declares that the final decrees rendered
in such cases, or any patent issued under the act, "shall be
conclusive between the United States and the said claimants only"
-- that is to say, it shall be conclusive on the United States and
on the claimants, but it shall not conclude the rights of anybody
else if in a position to contest the action of the board.
It is not possible, therefore, from the language of this statute
to infer that there was in the minds of its framers any distinction
as to the jurisdiction they were conferring upon this board between
claims derived from the Spanish or Mexican government, which were
perfect under the laws of those governments, and those which were
incipient, imperfect, or inchoate.
Undoubtedly, under the powers which these commissioners had to
examine into the existing claims, there would be a difference in
the principles of decision which they would apply, as to their
validity, between a perfected title under the Mexican government
and one which was merely incipient, and which the board might
reject as unworthy of confirmation for many reasons. Of this the
statute takes no note, except that it provides that the principles
on which the commissioners are to act shall be those mentioned in
the eleventh section, above quoted.
Nor is there any reason, in the policy upon which the
statute
Page 130 U. S. 249
is founded, and the purposes it was intended to subserve, why
this distinction should be made. Obviously it was not intended to
adjust or settle titles between private citizens making claim to
the same lands. It is equally clear that the main purpose of the
statute was to separate and distinguish the lands which the United
States owned as property, which could be sold to others, either
absolutely or by permitting them to settle thereon with preemption
rights, or which could be reserved from public sale entirely, from
those lands which belonged, either equitably or legally, to private
parties under a claim of right derived from the Spanish or Mexican
governments.
When this was done, the aim of the statute was attained. The
order of the commissioners or the decree of the court established
as between the United States and the private citizen the validity
or the invalidity of such claims, and enabled the government of the
United States, out of all its vast domain, to say, "This is my
property," and also enabled the claimant under the Mexican
government who had a just claim, whether legal or equitable, to
say, "This is mine." This was the purpose of the statute, and it
was equally important to the object which the United States had in
the passage of it, that claims under perfect grants from the
Mexican government should be established, as that imperfect claims
should be established or rejected.
The superior force which is attached, in the argument of
counsel, to a perfect grant from the Mexican government had its
just influence in the Board of Commissioners, or in the courts to
which their decisions could be carried by appeal. If the title was
perfect, it would there be decided by a court of competent
jurisdiction, holding that the claim thus presented was valid; if
it was not, then it was the right and the duty of that court to
determine whether it was such a claim as the United States was
bound to respect, even though it was not perfect as to all the
forms and proceedings under which it was derived. So that the
superior value of a perfected Mexican claim had the same influence
in a court of justice which is now set up for it in an action where
the title is contested.
Page 130 U. S. 250
Nor can it be said that there is anything unjust or oppressive
in requiring the owner of a valid claim, in that vast wilderness of
lands unclaimed and unjustly claimed, to present his demand to a
tribunal possessing all the elements of judicial functions, with a
guaranty of judicial proceedings, so that his title could be
established if it was found to be valid, or rejected if it was
invalid.
We are unable to see any injustice, any want of constitutional
power, or any violation of the treaty in the means by which the
United States undertook to separate the lands in which it held the
proprietary interest from those which belonged, either equitably or
by a strict legal title, to private persons. Every person owning
land or other property is at all times liable to be called into a
court of justice to contest his title to it. This may be done by
another individual, or by the government under which he lives. It
is a necessary part of a free government, in which all are equally
subject to the laws, that whoever asserts rights or exercises
powers over property may be called before the proper tribunals to
sustain them.
No doubt could exist, and none whatever would have been
suggested, if this statute, instead of requiring the individual
claimants to take notice that they were called upon to establish
their title and to come forward and do so, had provided that the
United States should sue everybody who was found in possession of
any land in California at the time the treaty was made, and thus
compel him to produce his title, if he had any. Such suits would
have been sustained, without hesitation, as being legal,
constitutional, and according to right. What difference can it
make, then, that the party who is supposed to possess all the
evidences which exist to support his claim is called upon to come
before a similar tribunal and establish it by a judicial
proceeding? It is beyond question that the latter mode is the more
appropriate one to carry out the object intended, and better
calculated to save time and expense, both to the government and to
the party, and to arrive at safe and satisfactory conclusions.
The government of the United States, when it came to the
consideration of this statute, was not without large experience
Page 130 U. S. 251
in a somewhat similar class of cases arising under the treaties
for the purchase of Florida from Spain and of the Territory of
Louisiana from France. In the latter case particularly, a very much
larger number of claims by private individuals existed to the soil
acquired by the treaty, some of whom resided on the land which they
claimed, while others did not, and the titles asserted were as
diverse in their nature as those arising under the cession from
Mexico. The Territory of Louisiana was held for many years by
Spain, then by France, and the mode of acquiring rights, claims,
and titles to the public lands had been pursued according to the
forms prescribed by those two governments, so that, upon its
transfer to the United States, Congress was engaged for a long
series of years in the business of establishing the valid claims,
and rejecting those which were invalid. There were in those cases
many titles which had been perfected under the Spanish and French
laws, as well as those which were in the most incipient stage of
the assertion of rights.
It is not profitable, perhaps, to go into the details of the
various acts of Congress passed upon the subject, most of which
were enacted in the interest of private claimants, and many of
which were designed to remove the bar which had come to exist by
reason of delays and failures to comply with the statutes in regard
to the presentation of such claims, Congress appointed
commissioners to investigate claims, who were to report to that
body, and generally reserved the right of rejecting or confirming
those reports. They changed the form and the number of these
officers, the rules by which they should be guided, and the times
limited for the assertion of private land claims. Indeed, it is
almost safe to say that some legislation may still be wanting, and
may still be had, to do justice to unfortunate parties who have
thus far not obtained the advantages of establishing their
rights.
The wisdom, therefore, of the present act in regard to the land
claims in California is manifest by a comparison with those earlier
statutes in which Congress undertook to do the same thing which it
desired to do in the act of 1851, but which failed for want of a
clear, satisfactory, and simple mode of
Page 130 U. S. 252
doing it, by bringing all the parties before a tribunal
essentially judicial in its character, whose decisions should be
final without further reference to Congress. But to have the
benefit of the superiority of the plan of 1851 over former modes of
establishing private rights to lands acquired by treaty, the later
statute must be carried out in accordance with the intention found
in its provisions.
This view has, we think, been established and prevailed without
limitation or contradiction in the decisions of this Court from the
earliest period when it could be raised here under the statute. In
the case of
Fremont v. United
States, 17 How. 542,
58 U. S. 553,
the Supreme Court, in the opinion delivered by Chief Justice Taney,
said:
"It will be seen from the quotation we have made that the eighth
section embraces not only inchoate or equitable titles, but legal
titles also, and requires them all to undergo examination, and to
be passed upon by the court. The object of this provision appears
to be to place the titles to land in California upon a stable
foundation, and to give the parties who possess them an opportunity
of placing them on the records of the country in a manner and form
that will prevent further controversy."
"In this respect it differs from the act of 1824, under which
the claims in Louisiana and Florida were decided. The jurisdiction
of the court in these cases was confined to inchoate equitable
titles, which required some other act of the government to vest in
the party the legal title or full ownership. If he claimed to have
obtained from either of the former governments a full and perfect
title, he was left to assert it in the ordinary forms of law, upon
the documents under which he claimed. The court had no power to
sanction or confirm it when proceeding under the act of 1824, or
the subsequent laws extending its provisions."
In the subsequent case of
United States v.
Fossatt, 21 How. 445,
62 U. S. 447,
this proposition is repeated in the most emphatic language, as
follows:
"The matter submitted by Congress to the inquiry and
determination of the board of commissioners by the Act of
Page 130 U. S. 253
March 3, 1851, 9 Stat. 632, § 8, and to the courts of the United
States on appeal, by that act and the Act of August 31, 1852, 10
Stat. 99, § 12, are the claims 'of each and every person in
California, by virtue of any right or title derived from the
Spanish or Mexican government.' And it will be at once understood
that these comprehend all private claims to land in
California."
"The effect of the inquiry and decision of these tribunals upon
the matter submitted is final and conclusive. If unfavorable to the
claimant, the land 'shall be deemed, held, and considered as a part
of the public domain of the United States,' but if favorable, the
decrees rendered by the commissioners or the courts 'shall be
conclusive between the United States and the claimants.'"
"These acts of Congress do not create a voluntary jurisdiction
that the claimant may seek or decline. All claims to land that are
withheld from the Board of Commissioners during the legal term for
presentation are treated as nonexistent, and the land as belonging
to the public domain."
In the case of
United States v.
Castillero, 2 Black 17,
67 U. S. 158, it
was said:
"Power to decide upon the validity of any claim presented to
land in California by virtue of any right or title derived from the
Spanish or Mexican government, as matter of original jurisdiction,
is, by the act of the 3d of March, 1851, exclusively conferred upon
the commissioners appointed under the first section of that
act."
In the case of
Newhall v. Sanger, 92 U. S.
761,
92 U. S. 764,
it was said, in speaking of the statute of 1851, that "claims,
whether grounded upon an inchoate or a perfected title, were to be
ascertained and adequately protected."
We will only refer to one other case, that of
More v.
Steinbach, 127 U. S. 70,
127 U. S. 81,
decided at the last term, where the whole subject was carefully
reviewed in the opinion of MR. JUSTICE FIELD. In regard to the
question now before us the court in that opinion said:
"It follows from what is thus said that it would be a sufficient
answer to the contention of the defendants that the
Page 130 U. S. 254
grant under which they claim to have acquired a perfect title
conferred none. The grantees were not invested with such title, and
could not be, without an official delivery of possession under the
Mexican government, and such delivery was not had, and could not be
had, after the cession of the country except by American
authorities acting under a law of Congress. But independently of
this consideration, and assuming that the title under the grant was
perfect, the obligation of the grantee was nonetheless to present
his claim to the Board of Land Commissioners for examination. The
ascertainment of existing claims was a matter of vital importance
to the government in the execution of its policy respecting the
public lands, and Congress might well declare that a failure to
present a claim should be deemed an abandonment of it, and that the
lands covered by it should be considered a part of the public
domain."
It is said by counsel for defendant in error that there would
never have been any doubt upon this question were it not for
certain dicta in the cases here referred to. We are unable to
perceive any sufficient reason for calling these expressions of the
court, whose judgment must be final on the subject, "dicta," for we
feel bound to say that they were observations pertinent to the
matter under consideration, and seem to have met the entire
approbation of the court in whose behalf they were uttered, and as
they embraced a very considerable period of time, during which a
contrary opinion would have saved much labor to the court, we must
believe that the opinions thus expressed without variation were the
well considered views of this Court when they were delivered. A
careful examination of the decisions of the Supreme Court of
California on this subject will show that if they do not absolutely
support this view, they contain nothing contrary to it until the
case of
Minturn v. Brower, 24 Cal. 644. That court, in the
case of
Teschemacher v. Thompson, 18 Cal. 11, said:
"By the Act of March 3, 1851, the government has afforded the
means of protecting all titles, legal or equitable, acquired
previous to the cession. Its power to thus provide . . . results
from the fact that it is sovereign and supreme as to all
matters
Page 130 U. S. 255
connected with the treaty and the enforcement of the obligations
incurred thereunder. . . . It must determine for itself what claims
to property existed at the date of the treaty."
And so in
Semple v. Hagar, 27 Cal. 163, shortly after
the decision of
Minturn v. Brower, supra, the court used
the following language:
"The court will take judicial notice that, according to the
provisions of the Act of Congress of March 3, 1851, every person
claiming lands in California by virtue of any right or title
derived from the Spanish or Mexican government should present his
petition for the confirmation of his title to the Board of Land
Commissioners, and that such proceedings must be had thereupon,
before said board or the district or Supreme Court of the United
States, that a final decree, confirming the title of the claimant
to the land, must be entered before the patent for the land could
be issued. A patent could not be issued for the land claimed under
a Mexican grant unless such proceedings were first had for the
confirmation, and it is not pretended that they were not had in
respect to the Jimeno grant. The patent was issued only in
pursuance of the decree of confirmation, and for the purpose of
carrying it into effect."
These cases show that the doctrine has not been considered as
well settled in California against the views herein expressed until
the case now before us, or, rather, until that of
Phelan v.
Poyoreno, 74 Cal. 448, was decided, which is referred to by
the court as the foundation of its judgment in the present action.
That case was argued before a commission of the supreme court,
whose judgment was adopted by the supreme court of the state under
a law of California which prescribes this mode of appellate
jurisdiction.
Upon the mere question of authority, these decisions of the
Supreme Court of the United States, and of the Supreme Court of
California, would be decisive against the judgment of the latter
court in this case; but we are quite satisfied that upon principle,
as we have attempted to show, there can be no doubt of the
proposition that no title to land in California dependent upon
Spanish or Mexican grants can be of any
Page 130 U. S. 256
validity which has not been submitted to and confirmed by the
board provided for that purpose in the act of 1851, or, if rejected
by that board, confirmed by the district or Supreme Court of the
United States.
This proposition requires that the judgment of the Supreme Court
of California, in the case before us, be
Reversed, and the case remanded to that court for further
proceedings in conformity with this opinion.