Evening star., 1867-11-07
THE COVRTS

VS.. Fisher, the celebrated contested CaIifornis
land case, msking eight points:
lef Thai act OF the I'D March, 1894 in spa-
cial pre-em ption law In favor of bona fds mr.
Chasers under Vallejo
2d. There could be no doubt as to limita.
ton as to quantity, quarter section or sub.
division as in other pre- .emption cases.
Sd III the occupancy and Improvement was
not TO be governed by the general pre- emption
left yague and indefrite7
ith. The term settler used In the act aud re-
per- mac received oefnite determination when
tnls special pre-empiion act was passed, and
must nave same meaning IN this law.
5th. The whole act taken together show con.
clnsively that the Vallejo tract, having been
declared TO be public lands, the settlers upon
II Will have the same privileges Of pre-emp-
tion as all other settlers upon the public do.
main.
9th. The object of the report upon which the
bill was passed was TO confine each settler to
his Improvements, even II 1t should be much
less than quarter section.
7th. This act permitted the settlers to pay for
the surveying of this entire tract Just as other
pre-emption settlers were permitted to do nm.
Ger the act referred to of the 3Oth March, Is62
and to pay for the land entered, at the same
price ana IN the same manner, consequently
sth. If this had been confirmation of any
pre-exisfing equitable title, the confirmation
would have been as IN all cases, according to
the particular boundaries mentioned in the
tract confirmed, and not according to the
lines Of the public surveys, which were un-
necessary except for pre-empton purposes
Now, this Court has jurisdiction over all per-
sons who may be found within its limits and
served with process. 1t cannot act upon the
subject matter. but can upon the person, and
has jurisdiction IN all cases of trust, con tract
or fraud. In this case there 10 both actual and
constructive fraud. The pre-emption act Of
1sil creates valid and binding contract be-
tween the Government and the settler, subject
to be defeated only by the willful neglect of
the settler. A law annulling the obligation Of
contract is never to be presumed, because 1t
would be iniquitous and unjust, unconstitu.
Congress, by act OF 1s4I. aving created a
valid and binding contract with the settler,
founded upon valuable consideration, can
never be supposed to authorize its agents to
annul such contract. The settlement and i'm
provement constitute the consideration, and
The right TO enter becomes vested when they
are made, and Congress can never be pre-
do so. Patents and certificates are in equity
only prin,a fdcie evidence CT title, and their va
HGty is exclusively judicial question.
Then follows an elaborate discussion upon
the construction OF laws. Private acts con.
stIued most favorably 10 the public ana to the
general policy Of the Government.
MIR. ID. s. Walker continued his argument
until the close of the session OF Court.
To morrow, Mr. Dick, Of CAL, follows for
the defendant
TO-DAY.
Before Judge TVyiie as Chancellor N. H.
Miller and NJ. j. Saffold for complainants,
MADE motion for .Injun ction to restrain de-
fendant In case Of Wm. H. Parker VS.. Joseph
BIadtlsr and wife, from selling goods and
chattels embraced in deed of trust to said
Parker OF 24th June, 1865. Granted.
Supreme Court Of District in General Term
Chief Justice Cartier, associate Justices Olin.
W vile, and Fisher.
Mr. Totten for committee appointed in case
OF Mr a l. king, have examined him and
find him qualified and q gentleman OF good
moral character, and entitled To bacome q
member OF this bar. Mr.. Leach moved that
Geo. DOolttle be admitted to this bar, and pre-
sented his certificate from the Supreme Court
OF New York Admitted.
Justice Cartter.-Proeeed with your orgu.
ment, Mr.. Dick.
Gen. u. J. Walker.-Nay it please your
honor 1 wish TO explain what has been said by
me yesterday in regard TO case in contro-
versy, Cunningham vs. Ashley (ii How He
read the case.
MIR. Dick, after referring to the pIeadinss in
said in substance as follows: The plaintiff
seeks by the bill to divest the defendant Z
ute 10 the W. I sec; 30 town, N. X. W,
OF Mount Diablo Meridian In California. He
alleges that OH the 2Sth October, 1862, he en-.
tered upon the land as part OF the public do.
main, settled upon ii by building his yelling
with The purpose to become owner under the
pre-emption laws. He alleges that prior to
March 3. 1853, the surveys OF the town ship in.
cluding this land were completed. the Sur
veyOr General was ready to return the plats
thereof into the Land Once at San Francisco
but did not do SO In consequence of orders
from the Commissioner of the General Land
Office to suspend action; and that had eu ch
plat been returned, the plaintiff would have
been entitled to enter said land.
He further alleges that he is now entitled to
enter the land. and obtain a patent therefor on
payment Of the price fixed by law. He then
charges that the above order OF the Commits
sioner OF the General Lend Once to the Sur
veyor General, s'was issued at the solicitation
| of the defend dant, on the pretext that he had
/ made application to Congress" 10 procure the
passage Of the act Of March 3, 1863, for the re-
4 fx.f fha n nlQi anfe
law was then pending, and the bill proceeds
to charge fraud and oppression, &c. The bill
! further Gays, tDat land IN question being
rejected by the Supreme Court of the
| United States thereupen became public land
He then goes on TO deny that the opinion or the
| Attorney General, and the decision of the Sec.
retary et the Inferior founded thereon, are in
| conformity with the law. The ans wer denies
| that plaintiff entered and settled upon the land
| as authorized by the pre-. .emption laws, and
says that the entry was violent and illegal.
| possession Of the defendant The ans wer i'm.
sists th "a there is no controversy bet ween plain
I'M and defendant, but. on the con trary, that il
Is the Government that has opposed and
| denied the claim Of plaintiff; that the law OF
| Congress Of March 3, 1863, and the acts OF the
4 agents OF Congress executing its declared will,
and not any violation of the rights Of plaint,f
\ by defendant, and he denies all charges of
1 fraud and oppression. The defendant also
relies upon the facts stated in the report of the
| Register and Receiver, of the I'd June Ia65
\ sdIu report uuo1ng tndt In consequence of such
| actual possession Of the land by defendant.
| that il was not open TO settlement by any other
| person. Both parties admit the title of the
| Government, and therefore they have a com
| mon starting point. Neither claims other wise
| than under law Of Congress The platnttff il
| without the evidence Of grant that is author.
lied to be given BY the law that he claims
under. When the bill was filed, an act on of
electment had been begun in the State court by
Frisbee TO recover possession OF the land Thus
| IL appears that the State court had ACQUIRED
jurisdiction Of the controversy as to the title of
The LANDS. As this Court never had iurisdic-
ton TO restrain proceedings in eectment in the
State Court, and IL is no longer conten nded that
IL can restrain the officers OF the Govern une mt
from delivering the patent to the defendant,
The only remaining question il one which this
Court conld have no jurisdiction Of uder an v
circumstances. because affecting title to lands
In California. Gan the Court grant the relief
prayed for. namely, "that the defendant, II be
bas entered the lands, may be declared TO hold
the same in trust for plaintiff and be compelled
TO convey the same accordingly on payment of
the purchase meney required by law. Congress
has openly and plainly refused 70 deal with
Whitney, and has in the most open and direct
msnper dealt with Frisbie as purchaser. Can
this Court declare null and void such action
OF Congress, and undo one bargain which Oon.
Gress has made, ana then make another which
Congress has refused to makel II So doe II
not become the agent OF Con gress In effect, in
disPestng OF the public land; and, next, as
agent O8sum0 pOUeY a dtsuosa of the ~, hl;n