The herald., 1896-02-02
~ occupied and cultivated by pueblos or
yonchorus Indiana


Hege Il specific and clearly defined and
limited duty, pointed out to the board by
The very Law of its creation with reference
10 these mission lands. Congress knowing
that shey had not been and could not un-
der the Mexican law be- granted, and know
ing too, that the civilized Indians were oc-
.cupAats and cultivators of these mission
lands. evidently intended to treat at least
that much of California's domain as gov
eminent property, subject to certain rights
Of the occupants. Hence 1t was that the
whole matter was relegated to the secre-
tary of the interior, who, under the law
was aud still is charged with the duty o
supervising and managing and protecting
the public domain.
Undoubtedly the reason for requiring
the board to ''ascertain and report to the
secretary the tenure by which the mission
lands were held'' was to enable him to
deal justly with the occupants, and to rec
1mmend such legislation as might be
deemed necessary for the protection of
these Indians, the tenants and wards of
the government.
In thus prescribing by the law the action
that the commissioners should take with
reference to mission Iands-under the upi-
Yversally recognized maxim, "Expressio
unius exclusio alterius-the board was as
sffectually prohibited from taking any
other action with reference to these mission
flands as if congress had in terms forbid
den it TO do SO.
CONFIRMATION VOID. ..
If then. the de Cells claim was void in
law, as shown OH the face of claimants
petition, and if the commissioners decree
Of confirmation was void for want of juris-
diction, it clearly follows that all subse-
quent proceedings, including the decree of
af1rmance by tho United States district
court as we'll as the surveying and patent
ing of the land were also void. 1t is settled
law that where lower court has no juris-
diction, sit necessarily follows that the
appellate court could not acquire any by
.appsal."
This decree of confirmation having thus
been made without Jurisdiction. and void,
It IL . necessary consequence that the land
patent resting thereon is also void.
Section % of the act above quoted. for
the ascertainment and settlement OF
private land claims in California, desig-
ustes the cases in which patents for land
plains shall be issued. 1t provides among
0ther things that:
s.For all claims finally confirmed by said
commissioners, or by the said district or
supreme court, patent shall issue to the
claimant upon his presenting to the gen.
erar land Office an authentic certificate of
such confirmation and 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" etc.
WHAT IS CLEAR
Thus it is clear that there was no author
ity to either survey or patent a private land
claim in California until the same had
been ''confirmed;'' which of course means
validly confirmed, for a void confirmation
is no confirmation.
Indeed the authorities in support of this
principle run through all the books and
are innumerable and without conflict.
Here, then, are the nature and source sof
the so-called title, under which two corpo-
rations are today holding some twenuy-six
square leagues, ur about l ! 5000 acres of
the most valuable lands in Southern Cali
fornia. directly adjacent to the great and
growing city of Los Angeles. and worth
exclusive of improvements, at least
bl2.0O0,O0O. Perhaps the question may
pc asked, how it was possible that while
only fourteen leagues were embraced in
thi. so-called decree of confirmation, YET
twenty-six leagues were covered by the
patent?
JUSTICE MISCARRIES
In answer to this inquiry your petitioner
does not hesitate 10 declare that whoever
will scrutinize carefully the official acts of
those public functionaries who have from
time to time been entrusted with the re.
sponsible duty of either adjudicating or
fixing bounds to these Spanish and Mexi-
can land claims IN California, will be forced
TO the conclusion that in very many in.
stances neither law nor justice nor COM
mon sense has had a feaher's weight with
these officials, as against the grasping
greed of fraudulent land claimants. Nor
Is this charge made without thoroughly
weighing tho words in which it is couched.
] ct the law and the facts speak for them.
selves. For example: The Mexican law
forbade the granting of more than eleven
l,apues of land to any one individual.
IA grant by the governor of California of
more than eleven leagues to one person
was void as TO tho excess.'' So that even
il this grant of San Fernando mission
lands had not been otherwise void as a
grant. it would certainly have been void as
to three of the fourteen leagues attempted
to be granted, simply for the want of
power in the governor to make so large a
grant to one person. In other words, three
leagues out of the fourteen would still have
been government lands, and the commis-
sioDers would have had no more legal au-
thority 10 award to the claimant these
three leagues of the public domain than
they would have had to award him three
thousand leagues.
If this is not sound doctrine, then where
shall we draw the line of Limitation?
Where shall we set boundary to the land
granting power of this board of comis-
sioners?
DONATED LEAGUES OF LAND
And If, wi hout any authority, and in de-
fance of law, these commissioners
could donate three leagues of government
land to Mr.. de Cells, so as to make his
claim three leagues larger than the law al
lowed. oil by virtue of self assumed
power, why could not a United
States deputy surveyor, with
equal proprie'y and by the
f,xercise of the Same kind of arhitrarv ar