The Governor of California had no power, on the 18th May, 1846,
either under the colonization law of August 18, 1824, and the
regulations of November 21, 1825, nor yet under the dispatch of
March 10, 1846, from Tornel, Minister of War, nor under the
proclamation of Mariano Paredes y Arillaga, President
ad
interim of the Mexican Republic, dated March 13, 1846 -- these
two last made in anticipation of the invasion of California by the
forces of the United States -- nor under any other authority to
make a valid sale and grant of the mission of San Luis Rey.
Like the preceding case, this one came before the Court upon
appeal from a decree of the District Court of the United States for
the Southern District of California, and arose originally upon a
petition for the confirmation of a land claim before the board of
commissioners appointed under the Act of the 3d March, 1851. The
grant in this case was thus:
"PIO PICO, CONSTITUTIONAL GOVERNOR &c."
"Whereas, Don Antonio Jose Cot and Don Jose Antonio Pico have
presented themselves to this government, petitioning that it shall
give them as a legitimate possession the mission of San Luis Rey
and the rancho of Palas, with the lands which pertain to them, in
payment of $2,000 in money and $437 and four reals in grain, with
which they have assisted the government in its exigencies, they
both obligating themselves to satisfy in every description of
produce the debt of the said mission of San Luis Rey in the
Page 68 U. S. 767
term of four years, having in consideration the prejudices which
the interested parties have had in the delay of the satisfaction of
the said debt and that the edifices, which are in a total
abandonment, will not pay the other creditors. I have come to
concede them &c.,
in virtue of the faculties with which I
find myself invested, they remaining responsible to satisfy
the debts of the said mission, and in order &c."
"Given in the Government House in the City of Los Angeles this
18th of May, 1846."
"PIO PICO"
"JOSE MARIA MORENO,
Sec. ad int'r."
Governor Pico, who was himself examined, testified that his
signature was genuine. "I placed it there," he said,
"as governor at the time and place where and when the paper
purports to be made and dated. It was made for the uses and
purposes, and upon the terms and considerations, therein specified.
The money and grain mentioned in said paper were furnished to the
government for its uses by the original grantees."
The following questions and answers were made during Governor
Pico's examination as to the source from which he supposed that he
derived authority to make the grant:
"
Question. Was this grant or sale made in virtue of the
general colonization law of the 18th of August, 1824, or of the
regulations for colonization of the vacant lands of the territories
of 1828, or of any other law or regulation of the Mexican
government?"
"
Answer. The sale was made in virtue of what is
expressed in the document itself. The government made the sale by
virtue of the authority with which it considered itself clothed
from the government of Mexico, and upon the motives and
considerations expressed in the document itself."
"
Question. Was the authority special?"
"
Answer. The governor had not received any special
authority to make the particular sale in this case, but the
governor had received special instructions to provide means for the
defense of the country by extraordinary efforts and at every
sacrifice. [
See ante, pp. <|68 U.S. 753|>753-754 --
REP.]"
"
Question. Did you consider the approval of the
Departmental Assembly necessary to make this grant valid?"
"
Answer. I did not so consider it."
It appeared, also, that possession had been taken by the
grantees, and that Carey Jones derived title from them. The Board
of Land Commissioners decided in favor of the claim, and the
district court affirmed the decision, from which decree of
affirmance this appeal came.
Page 68 U. S. 768
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
This was a petition for the confirmation of a land claim under
the Act of the third of March, 1851, and the case comes before the
Court upon appeal from a decree of the District Court of the United
States for the Southern District of California. Appellee claims the
land and property in question as purchaser from Antonio Jose Cot
and Jose Antonio Pico, who, as he alleges, were the original
grantees of the same under the departmental government of
California. Claim is for the mission of San Luis Rey, situated in
the County of San Diego, including the rancho of Palas, and is
bounded as follows: north by Santa Margarita, east by the Sierra of
Rauma, south by the rancho of San Francisco, and west by the
seashore, excepting all prior valid grants within the specified
boundaries. Title is claimed by virtue of an alleged sale of the
property made under the authority of the governor of the
department. Grant made in pursuance of the sale is dated at Los
Angeles on the eighteenth day of May, 1846, and purports to have
been executed in payment of two thousand dollars in money and four
hundred and thirty-seven dollars and fifty cents in grain, with
which the grantees had assisted the government in its exigencies,
they obligating themselves to satisfy the debt of the mission in
produce within four years.
I. Concession is accordingly made of the property to the
grantees "in virtue of the faculties with which I find myself
invested," but the governor does not condescend to explain what
those faculties were, or whence they were derived. Whether the sale
was made at private or public sale does not appear, nor in the view
taken of the case is it of any importance to inquire. Deposition of
the governor was taken to prove the authenticity of the grant, and
he testified that his signature appearing in the paper was his
genuine signature. Question was put directly to the witness whether
the grant was made in virtue of the colonization law of the
eighteenth of August, 1824, or of the regulations of the
twenty-first of November, 1828, but his answer was evasive and
unsatisfactory. He said the sale was made in virtue of what is
expressed in the document itself; that the government made the sale
by virtue of the authority with which it considered itself clothed
from the supreme government, and upon the motives and
considerations expressed in the document. He admitted that the
governor had not received any special
Page 68 U. S. 769
authority to make the particular sale in this case, but
endeavored to weaken the force of the admission by adding that he
had received special instructions to provide means for the defense
of the country by extraordinary efforts and every sacrifice.
Instead of claiming that the power to make the grant emanated from
the departmental assembly, as was claimed in the preceding case, he
stated expressly that he did not think the approval of that
assembly was necessary to the validity of the grant. Evidence was
also offered by the claimant to show that the original grantees
took possession of the property and remained in possession until it
was delivered to the agent of the United States.
II. Commissioners confirmed the claim, and the United States
appealed to the district court, where the decree of the
commissioners was affirmed. Whereupon the United States appealed to
this Court. Propositions discussed in the case are substantially
the same as those presented in the case just decided, and for the
reasons there suggested it will only be necessary to determine the
question of power. When the governor stated in his deposition that
he considered the local government clothed with authority from the
supreme government, he doubtless referred to the dispatch of the
minister of war, of the tenth of March, 1846, and also perhaps to
the proclamation of the president, which bears date three days
later; but the views of the court have been so decidedly expressed
upon that subject in the preceding case, that it seems unnecessary
to add anything to what was then remarked. Suffice it to say that
we are all of the opinion that the documents will bear no such
construction, nor do they afford any substantial support to any
such proposition. Taken as a whole, the case is governed by the
same principles as the preceding case, and we refer to the reasons
there given for our conclusion in this case -- that the governor of
the department had no authority to make the grant.
The decree of the district court is therefore reversed and
the cause remanded with directions to dismiss the
petition.
