The departmental assemblies had no power under the laws of
Mexico regulating the disposition of the public domain to give it
away, either with or without the assent of the governor, except for
the purposes of settlement or cultivation. The right to dispose of
it for other purposes rested with the supreme government alone.
Held accordingly that a grant by a departmental
assembly of a tract of land embracing an area of over two millions
of acres, the grantees binding themselves to construct two wells
for the relief and aid of travelers and to establish two factories
for the use of the state and to protect them from hostile invasion
was void, whether such grant were approved by the governor or
not.
On the 28th of December, 1845, one Vigil and certain other
persons addressed a petition to the Most Excellent Departmental
Assembly, through Armijo, Governor of New Mexico, asking for a
grant of a tract of land called the Jornada del Muerto, binding
themselves, if the grant were made, to construct two wells for the
relief and aid of travelers and establish two factories for the use
of the state, and to protect them from hostile invasion. The
governor transmitted
Page 80 U. S. 450
the petition to the Assembly, but declined to recommend that
favorable action should be taken upon it on account of the novel
character of the application. Notwithstanding the refusal of the
governor to recommend favorable action, the assembly, on the 10th
of January, 1846, granted the tract to the petitioners for the
purpose of constructing wells and cultivating the lands, so far as
their means would permit, without being entitled to an exclusive
right to the pasture. The tract disposed of in this way embraced an
area of over two millions of acres. Soon after this, as is known,
war broke out between the United States and Mexico, and the whole
region where the land lay passed by conquest and treaty to the
government of our own country. Hereupon Vigil and the other
parties, asserting title under the grant, presented their claim to
the Surveyor General of New Mexico for confirmation. He, however,
rejected it. The claimants then applied to Congress for relief, and
a law was passed for their benefit which authorized them to
institute a suit in the Supreme Court of the Territory of New
Mexico against the United States, the law declaring further that
the same principles should be applied to the determination of the
controversy which Congress had prescribed for the decision of
similar land claims in California, derived under the authority of
the Mexican government. Suit was accordingly brought in the court
mentioned -- the court below -- and that court confirmed the claim.
From the decree of confirmation the case was now here on appeal by
the United States.
The case was ably and elaborately argued, and a wide range taken
in the discussion of questions presented by the record, but
collateral to the history already given, which it is not necessary
to notice in view of the grounds hereinafter set forth, on which
the decision of this Court is rested.
MR. JUSTICE DAVIS delivered the opinion of the Court.
It has been repeatedly decided by this Court that the only
Page 80 U. S. 451
laws in force in the territories of Mexico for the disposition
of the public lands, with the exception of those relating to
missions and towns, are the act of the Mexican Congress of 1824 and
the regulations of 1828. The avowed purpose of the Congress in
enacting this law, and of the supreme government in carrying it
into effect, was to colonize the public domain -- to preserve it
for settlement or cultivation. The favor of the legislature has
doubtless been often abused by unworthy ministers in charge of the
remote territories, but this consideration in no wise detracts from
the wisdom of the policy on this subject. This policy recognized
the obligation resting on the government to hold the public lands
as a public trust, to be administered for the benefit of those who
would settle upon them or cultivate them. They could not be sold
for money, nor granted away in consideration of past public
services, nor on condition of making public improvements, of use to
the traveling community, or of general benefit to the state. The
power to cede them depended entirely on the uses to which they were
to be put, and these, as we have seen, were cultivation or
settlement. The legal right to dispose of them for other objects
was withdrawn from the local authorities, and rested alone with the
supreme government.
If the policy of the law were wise, so were the regulations
established for the purpose of carrying out its provisions. These
regulations conferred on the governors of the territories, "the
political chiefs," as they are called, the authority to grant
vacant lands, and did not delegate it to the departmental assembly.
It is true the grant was not complete until the approval of the
Assembly, and in this sense the Assembly and governor acted
concurrently, but the initiative must be taken by the governor. He
was required to act in the first instance -- to decide whether the
petitioner was a fit person to receive the grant and whether the
land itself could be granted without prejudice to the public or
individuals. In case the information was satisfactory on these
points, he was authorized to make the grant and at the proper time
to lay it before the assembly, who were
Page 80 U. S. 452
required to give or withhold their consent. They were in this
respect an advisory body to the governor, and sustained the same
relation to him that the Senate of the United States does to the
President in the matter of appointments and treaties. The Mexican
government chose to entrust to an officer appointed by it the
execution of its policy on the subject of the public domain, rather
than to an elective assembly, over whose conduct it could not in
the nature of things exercise the same supervision and control. It
would seem, owing to the remoteness of the territories from the
seat of the general government and the sparseness of the population
that the wisdom of the selection could not be disputed, but be this
as it may, it was the undoubted right of the Mexican government to
decide the question for itself, and this Court cannot be required
to go further than to give effect to that decision.
These views dispose of this case, for the grant in controversy
was the sole act of the assembly, and has not even the element of
the governor's recommendation in its favor.
But if it were otherwise and the cession were the act of the
governor, it would still be invalid, because it would violate the
fundamental rule on which the right of donation was placed by the
law. The essential element of colonization is wanting, and besides
the number of acres granted was enormously in excess of the maximum
quantity grantable under the law. The decrees of the Cortes of
Spain are invoked as an authority for this grant, but it is
sufficient to say that they were invoked for a similar purpose in
Vallejo's case,
* and were decided
to be inapplicable to the state of things existing in Mexico after
the revolution of 1820. And the organic bases of the Mexican
republic of June 13, 1843, are equally ineffectual to support this
grant. If it be conceded the powers of the departmental assembly
were enlarged by these decrees so far as the private property
belonging to the department, as a municipal organization, is
Page 80 U. S. 453
concerned, yet they effected no change in the mode of disposing
of the public lands, nor was the colonization policy of 1824, at
all altered by them, for they expressly declare that "in
alienations of lands, the existing laws will be observed and what
the colonization laws determine."
In any aspect of this case, the claim for this large tract of
land has no foundation to rest upon. The departmental assembly,
aided in a certain sense by the governor, usurped the prerogative
of the supreme government, and no ingenuity of reasoning can
sanction a proceeding, which was not only without authority of law,
but contrary to the forms prescribed by it.
Judgment reversed and the cause remanded to the court below
with directions to enter a decree dismissing the petition.
*
66 U. S. 1 Black
541.
