United States v. Vallejo (66 U.S. 541)/Dissent Wayne
Mr. Justice WAYNE.

I have examined this case with much attention, and concur in the conclusions of my brother, Mr. Justice Grier; and will add, that as I have neither seen nor heard anything in the case so conclusive as the judicial opinion of our brother, Judge McAllister, I have determined that the best course which I can take to counteract the conclusion to which this court has come in this case, will be to adopt his opinion on the law of the case as more expressive of my dissent than anything I could add. The part of it which I refer to is as follows:

'This case is to be considered as one in which the title-papers are admitted to be genuine, the payment of a money consideration paid, and the possession of the claimant, as was ordinarily taken under the laws and usages of Mexico, established. The sole grounds taken by the Government, on which the validity of this claim is resisted, are:

'1. That no witness proves that a house was built within one year from date of the grant of 1843. That a house was built upon the land prior to the date of either grant by the claimant is clearly proved. That a second house was not built, (as subsequent condition,) especially in the case of an absolute sale, could not authorize a court of equity to forfeit any interest which has become vested in the claimant.

'2. The second ground is, that the grant of 1844 is invalid, because it is without restriction, and for a consideration of $5,000 in money.

'3. Because the Governor has exceeded his power in making a grant for the excess of eleven leagues.

'The two last objections, which urge the grant to be void because it was a sale for a money consideration, and because it exceeds in quanity eleven leagues, will be considered together. These objections apply to the second grant of 1844, which purports to be on its very face an absolute sale.

'This grant cannot be deemed, in the language of the Supreme Court of the United States in the Cambuston case, (20 How., 64,) 'a pure donation without pecuniary consideration or meritorious services rendered to the Government.' Nor doe  it purport to be issued under the Mexican colonization law of 1824, or the regulations of 1828. It is treated by the Government attorney for what it really is, an unrestricted sale for a pecuniary consideration. Had it been a pure donation, made professedly under the laws of Mexico, professing to have been issued by virtue of those laws, and in pursuance of the terms and provisions prescribed by them, proof of a compliance with the restrictions by the Governor would not have been afforded by the recitals in the grant of his having done so, especially if there had been doubt of the bona fides of the grant. This is the extent to which the court went in the Cambuston case.

'It does not apply to a bona fides; all made to supply the necessary wants of the Government, and applied to the removal of them. If so intended, its practical effect would be in the coesent and all analogous cases to nullify the applications of the 'principles of equity,' which are made one of the rules of decision by the act of Congress for this court in the exercise of the jurisdiction conferred on it. Nothing was said by the Supreme Court to justify such conclusion. In that case they use language which indicates that if the grant had not been a mere donation, had been free from suspicion, for meritorious services rendered to the Government, or a pecuniary consideration, the claimant would have stood on a different footing. They say, (20 How., 64,) 'In the examination of this case, we have found it very difficult to resist a suspicion as to the bona fides of the grant. It is a pure donation, without pecuniary consideration or meritorious services rendered to the Mexican Government.'

'In the case of Fremont vs. United States, Taney, C. J., says: 'And the grant was not merely to carry out the colonization policy of the Government, but in consideration of the public and patriotic services of the grantee. This inducement is carefully set out in the title-papers; and although this cannot be regarded as a money consideration, making the transaction a purchase from the Government, yet it is the acknowledgment of a just and equitable claim, and when the grant was made on that consideration the title in a court of equity ought to be as firm and valid as if it had been purchased with money on the same conditions.'

'Now, in this case the grant was made for a money consideration by the Governor, to obtain, and who did obtain by it, the means to maintain the starving soldiers of the country at a critical moment of its then condition. This fact is ascertained by the official communication of the Governor to the grantee, found in the Mexican archives for the year 1843, and referred to in another record for the same year. The grantee was in possession, open and notorious, for three years, undisturbed, prior to the occupation of this country by the Americans. Under such circumstances, could the Mexican Government, had it continued, have refused to have recognised the claim of the grantee with justice or equity?

'If the facts, that the Government received a pecuniary, and, for aught that appears, adequate consideration, must necessarily avoid the grants, with the other circumstance, that the quantity of land granted exceeded eleven square leagues, it must be done because these grants are within the operation of the colonization law of Mexico of 1824, in relation to the distribution of lands by donation, to carry out the colonization policy exclusively, and which restricts the quantity of lands to any one individual to eleven leagues.

'The power to give under certain restrictions, made evidently to prevent fraud in the distribution, did not, by implication, repeal the power, if it previously existed, to sell for a pecuniary consideration, if bona fide exercised.

'That such power did exist in the Governors, the court will now consider, and give its reasons for the conclusion to which it is arrived.

'In a work published in 1829, in the city of Mexico, among the laws supposed to be retained in Mecico is the decree of the Spanish Cortes of January 4th, 1813. This law evinced a spirit and policy evidently more liberal than bad previously animated Spanish legislation, and which probably did not operate in Spain, or any of its then colonies, but, it is reasonable to believe, that in common with other decrees of the Spanish Cortes was called into active existence by the Spanish revolution of 1819, and was in force at the time of the independence of Mexico.

'Such is the view enunciated by the board of Land Commissioners in the case of the City of San Francisco vs. United States, and the publication of the decree in Mexico, in 1829, as one of the retained laws, as of force, confirms the opinion of the board.

'The Supreme Court of this State, in the case of Cohas vs. Raisin, (3 Cal., 443,) distinctly affirm its existence, and cite the compilation in which it is given as 'Leyes Vigentes,' p. 58.

'That tribunal, in the case of Welch vs. Sullivan, (8 Cal., 168,) again affirm the existence of this decree. The say the decree of the Cortes in 1813 directs, etc.

'But there is internal evidence afforded by the Mexican legislation on the subject of colonization, that the existence of the decree of 1813 was known, and legislation was enacted in view of some of its provisions. The diseno making the boundaries of the land petitioned for, which is required to accompany the application to the Governor, is in conformity to the decree of 1813. Again, the conditions usually inserted in the colonization grants under the Mexican law and regulations are similar to those prescribed in the 2d section of that decree. This, in its preamble, among other things, declares its object to the 'to furnish with this class of lands (public lands) in aid of the public necessities (wants) to reward meritorious defenders of their country, and citizens who have no property.' The evident intent of this decree, declared on its face, is, that common or public lands should be converted into private property, and lands granted should be distributed in full property, and with established metes and bounds. Upon a careful revision of this decree the conclusion must be, that in the absence of other legislation the carrying out this decree must have devolved on the executive department, and the Governors of California, under the instructions of the Supreme Government, would have the power to grant common lands. Now by that decree the quantity of land granted to one individual was not limited to any given quantity; but as to persons, it was limited to citizens.

'The only instance in which quantity is limited is in certain donations to certain official persons, to whom small lots of prescribed extent were to be granted. This decree authorized grants to meritorious defenders, and a sale of land to aid the public necessities; and such sale, made in good faith, would be the legitimate exercise of power, unless the provisions of the decree confirming the power have been repealed by subsequent legislation. Have they been repealed, expressed or by fair implication, by the colonization law of 1824 of Mexico, or by the regulations of 1828?

'Animated by a more liberal view of her interests, Mexico determined to afford inducements to emigration, and she opened her public lands to foreigners as well as citizens, and determined to make donations for colonization purposes to all who strictly complied with the terms which, in the distribution of the land, she prescribed to prevent fraud. Among these was limiting the quantity of land in any donation to a single person to eleven leagues. There are many reasons for the legislation of Mexico to surround her system of colonization with checks and limits when the Governors were to distribute the public lands, which do not apply to a bona fide sale for money consideration. Such is not a case which, by implication, should be brought within the colonization laws. The construction of a law, from the action of those whose duty it is to carry it out, should be  onsidered when endeavoring to ascertain the intention of the Legislature. The fact that sales have been made by Governors of lands in quantities of more than eleven leagues, who would grant by donation to a colonist not more than eleven, is a circumstance not to be disregarded.

'By the records of the case, United States vs. Rodriguez, No. 479, among the files of the papers of the board of Land Commissioners, it is made to appear that Governor Pio Pico issued a grant for twelve leagues in consideration of the sum of $12,000, past indebtedness to the Government. The board of Land Commissioners confirmed the claim. The land in that case is situated in the southern district, and the records inaccessible to us, and it is impracticable to ascertain whether any appeal is pending, has been made, or been dismissed. The opinion of the board is, however, on file among the archives in the Surveyor General's office. In that opinion it is stated, 'that in consequence of the importance of the two questions involved, the court took the case under advisement, and also for the reason that the determination of the case would settle the fate of a large number of cases undetermined, so far as the action of that tribunal was concerned.' The first of those questions involved the only two grounds taken in the present. It was, whether the power of the Government of California, under the Mexican authority, existed to sell or grant for a consideration of money, or with limits to exceed in amount eleven leagues. The board decided that he had such power.

'In the case of The United States vs. M. G. Vallejo, No. 321, the same tribunal affirmed the principle decided in the previous case, and confirmed the claim to fifteen leagues. In their opinion the board say, 'there appears no objection to the confirmation of this claim, except that it exceeds in amount the maximum authorized to be granted under the provision of the colonization law. The last five leagues do not appear to have been granted under those provisions, but a sale for an actual consideration received by the Government of two thousand dollars. This point was fully considered and decided by the court in case 479, and the doctrine recognised that a bona fide sale, made for a full consideration, by the Governor of California, under the Mexican laws, vested in the purchaser both a legal and equitable interest, of which he would not be divested by the Government by any rules of law or equity.' No power, certainly, was given by the colonization law of 1824, authorizing the Governor to grant by way of sale, under any circumstances. If, therefore, he does not possess the power independently of that law, it exists nowhere, and a money consideration need not to have been referred to the U.S. Supreme Court to illustrate the equities of parties applying for a confirmation of their grants.

'In the Cambuston case, (20 How., 4,) they assign as a reason for a strict interpretation of the claimant's grant, and its want of equity, that there had been no pecuniary consideration paid. In Fremont's case, (17 How., 558,) they refer to the fact that the grant was given for meritorious and patriotic services, and should place the claimant on a footing with one who had purchased with money, and thus give a just and equitable claim against the Government, the title to which in a court of equity would be firm and valid.

'No sale, it would seem, for any amount of money, could be legal so as to pass a title, if it be conceded that no power on the part of the Governor to make a grant of the kind existed. It does appear to me, that when the Supreme Court refers to the money consideration of a grant as vesting in the holder of it a superior equity, by so doing they have at least not decided that the Governor's act was void.

'They must have acted under the impression that the power to sell in good faith was in the Governor, or that the equity of the case was such as gave 'a just and equitable claim against the Government,' the title to which in a c urt of equity would be 'firm and valid.' In either view, but especially on the ground of a power in the Governors of California, apart from the colonization law, to aid in good faith, by a sale of land, the public necessities, this court considers that a decree affirming that of the board of Land Commissioners in this case must be entered.'