The herald., 1896-03-23
ONE WHO KNOWS THE RECORD
WRITES INTERESTINGLY ABOUT THE
WRONGS OF ROGERIO ROcHA
The Comments of "Justice" and Judge R. NJ.
WIdney's Replies Thereto-That Affidavit
Relating to Rocha's Ejectment - Land
Commission Of 1851 and its Powers

is who has been writing upon the subject
Of Rogerio Rocha's claim in the San Fer
nando. He may be "tenderfoCt," and
have been made a ''catspaw." Indeed
from the invective in which the judge in
dulges in his article in THE HERALD of
March Sd, it would appear that "Justice"
has "catspawn of his own. with claws
sharp enough to harrow the soul OF the
judge.
The learned Judge made much of an
ferred to, an affidavit relating to the man.
ner OF the ejectment of Rocha. A little
analysis will make that affidavit appear
rather ridiculous. 1t appears to have been
sworn to by one Will A. Hannel, deputy
sheriff. in 1887. The records show that
W. Hammel took oath as deputy April ! 4,
1855, and that Will A. Hammel was ap.
pointed deputy January Z, 1889. But if
the signature to the papers on file Is to be
taken as genuine, tho ejectment of no
1t is possible there were two deputies con-
cerned in the ejectment proceedings, but
if there were they do not seem to have OBJ
served ordinary official caution in the dis
charge of their duties, as the following
facts will show:
Tie suit under which 2ogerio was elected
was begun January .. 1873, and his an
swer was filed March %, 1878. and SER
vice admitted by Rogerio's attorney on
the same date. May 6, 1878, the cause
was passed. Nothing further was done
until December IL, 1883, when an amend
same date notice to enter default
was filed and judgment by de-
fault entered without any pretense of no.
tice to defendant or his attorneys. Thorn g.
Ross. July 13, 1855. writ of possession
was issued, which writ was returned July
2S. without service.
Under date of September %, 1885, the
register of actions shows the following
entry: "Motion to set aside default
denied while the clerks minute entry
under that date reads, Porter vs.. Rod
gers motion to set aside default dened:"
(see minute book /, Cheney. page 1868,
and this minute entry is the only authority
for the register entry.
On September 20, 1885, an alias writ
was issued. On October l o the court made
an order that all proceedings under the
writ be stayed, and directed the same to
be served on the sheriff.
On November II, 1885, a writ of pos
session was returned, purporiing to be
the carrying out of the order of the court
of September 20, (Which order had been
suspended October 10), and also purport-
ing to be under a judgment rendered De-
cember l, 1SS5. manifest impossibility
because the ejectment was prior to the
judgment. So the record does not disclose
any order or other proceedings OF court
whereby the sheriff received authority to
eject Rogerio.
From the foregoing facts it would appear
that il justice had scratched a little deeper
he might have uncovered something of
more Importance than the affidavit of a
deputy who, it appears, did not know how
to spell his own name. 1t may not have
been raining at the time of the ejectment.
but it certainly did "ran subsequently,"
and there was no shelter for poor, old
RoRerio.
Now, as to the agreement relating to the
Indians rights which the judge seems to
regard as an impossibility.
The learned judge states that the land
commission was created in 1853 and end
ed its existence in 1856. judge so
learned in the law should know that the
land commission was created by the act
of March 3, 1851; that it commenced its
lahors near the end of the same year and
finished q part of them in 1885. For
come unknown reason its entire duties
never were performed.
No one denies that all claims derived
from "Mexican and Spanish authorities"
were to be presented to this commission,
but the part of the act of March 3, 1851 ,
that related to the rights of the Indians
was contained in another section, which
reads as follows:
"Sec 16. And be it further enacted that
it shall be the duty of the commissioners
hereinbefore provided for to ascertain and
report to the secretary of the interior the
tenure by which the mission lands are held
and those by civilized Indians, and those
who are engaged in agriculture or labor OF
any kind, and also those which are occu-
pied and cultivated by Pueblos or Ranch
eros Indians"
Now learned Judge needs not to be told
that this land commission was a special
tribunal. having no powers except those
laid down in the law creating it; and it is
clear from the foregoing quotation that
the claims of the Indians were not required
A<~A A~ n&4J k~ to- Ty,,
der the Spanish and Mexican governments
the Indians we're treated as they were
treated under our own government, that is.
they were the wards of the government.
The commission was required by the act
creating it to report the claims of the Indi-
ans to lands to the secretary of the inte-
rior, as we'll as the tenure by which the
mission lands we're held. Besides, the pre-
tended grant from Pico to Cells refers to
Indians "without anterior title" Rogerio,
however, had anterior title and therefore
was not affected by the pretended grant of
Pico to Cells.
But the learned judge further says: "If
the Indians were prevented from present
ing their claims to said commission by
promises, the promises must of necessity
have been made not later than 1852 and
then he attempts to get Maclay and Porter
were not in Los Angeles until 1873. all of
which proves nothing. The commission
had no authority to issue patent. The
patent to San Fernando was signed by the
president January 8, 1878, refused by
Eulogio +. de Cells, executor of estate of
Eulogio &c Coils, soon afterward. and was
taken from the surveyor-general's Office
under resolution passed by the officers of
the Los Angeles Farm Homestead assoca-
ton about February, 1875, against the pro-
test of Eulogo +. de Cells, which protest
will be found among the records, in it's
proper place, as shown by his affidavit
filed about January z, 1881, and this affi-
davit accompanies one made by Porter
setting out the same set of facts.
From the above record facts it is clear
that the contest in regard to the procuring
of this patent was going on continuously
from the date of its first refusal by Cells
until the date of its final delivery, and even
after the date of its delivery, and until late
in 1885 it was resisted by Porter and
Cells, as appears from the records re-.
ferred to. During all of this time the
agreements between Cells and Por-
ter and the Indians were of neces-
sity held in abeyance. Inasmuch as this
claimant, Cells, under whom the learned
Judge claims title, was protesting against
the patent being issued to him for thirteen
years after it was signed by the president
in 1873, and thirteen years after the
learned Judge claims Maclay and Widney
first came to Los Angeles, the learned
Judge should not have been in en-
tire ignorance of this suit, for filed there
in is the affidavit of Porter supporting the
afRI, x;t Nol;s Ind tho loorr,oI i,dra