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    U S v. COE, 170 U.S. 681 (1898)

    U.S. Supreme Court

    U S v. COE, 170 U.S. 681 (1898)

    170 U.S. 681


    No. 8.

    May 23, 1898

    This suit was originally instituted February 2, 1892, by the Algodones Land Company, under provisions of an act entitled 'An act to establish a court of private land claims and to provide for the settlement of private land claims in certain states and territories,' approved March 3, 1891.

    Pending the litigation, the Algodones Land Company conveyed the property to Earl B. Coe, and upon motion the action was revived in his name.

    The basis of the claim is an alleged grant, which shows that one Fernando Rodriguez, on January 4, 1838, at Hermosillo, presented a petition to the treasurer general of the state of Sonora, Mexico, stating that he had sufficient means to settle and cultivate a tract of vacant desert land, on the northern frontier of the state, situated between the Colorado and Gila rivers, said lands including the tract from the southern side of the Gila river, in front of the junction of the same with the Colorado river, as far as the crossing (paso) of the Algodones, [170 U.S. 681, 682]   and from said point following the eastern margin of the Colorado river as far as the junction of the same with the Gila, a distance of five leagues.

    He also offered at the proper time to furnish satisfactory evidence as to his ability to pay the just taxes (derecho) into the public treasury, 'it being understood, senor treasurer, that the registry that I now make is under the condition that the settlement and occupation of the said vacant lands by me shall be when the notorious condition and circumstances of the region of the country in which said lands are situated may permit the same to be done, since the said vacant lands are situated in a country desert and uninhabitable on account of the hostility of savages; it being well known that a settlement made by the Spanish government in the desert country Colorado was entirely destroyed in a short time by the Yuma Indians and other savages,' etc.

    Thereupon a commissioner was appointed by the treasurer general, who was directed to ascertain whether the grant would conflict with the rights of any other parties; also to survey and appraise the lands and offer the same for sale under the provisions of certain designated laws of the state.

    This commissioner, in the performance of the duties assigned him, caused the land to be appraised and surveyed, and thereafter offered the same for sale at public outcry on each day for 30 consecutive days.

    In his petition Rodriguez offered to pay for the land the amount at which it should be appraised, and, no other person having bida t any of the public offers, the record of the proceedings was returned to the treasurer general for final action. That officer thereupon referred the matter to the promoter fiscal of the public treasury, who, upon a review of the proceedings, declared that Rodriguez ought to be admitted to a composition with the treasury of the state for said lands, and [170 U.S. 681, 683]   recommended that three public offers be made, closing his report with the following language:

    The treasurer general thereupon ordered that three public offers of sale be made of said lands in the manner established by law. The 'junta de almoneda,' or board of sale, thereupon proceeded to make three public offers of sale on consecutive days, and on the third offer declared Rodriguez to be the purchaser.

    Thereafter the treasurer general executed a formal instrument in writing, in which, after referring to the proceedings thereto had, he recites as follows:

    The 'junta de almoneda,' or board of sale, consisted of [170 U.S. 681, 684]   certain officers, among whom was the treasurer general. The powers of the board with reference to the sale of public lands were conferred and defined by the laws of the central Mexican government.

    Matt. G. Reynolds, for the United States.

    A. M. Stevens and John F. Shafroth, for appellee.

    Mr. Justice McKENNA, after stating the facts in the foregoing language, delivered the opinion of the court.

    We shall assume the genuineness of the title papers. It was so found by all the judges of the court below, and, notwithstanding some irregularities in them, we are disposed to concur in the finding. The question which remains is, did the officers who made the grant have the power to do so?

    Section 4 of the act establishing the court of private land claims provides that the petition of petitioners 'shall set forth fully the nature of their claims to the lands, and particularly state the date and form of the grant, concession, warrant, or order of survey under which they claim, by whom made, ... and pray in such petition that the validity of such title or claim may be inquired into and decided.'

    In conformity to the act, the petition in this case, after alleging ownership of the land, proceeds as follows:

    The source of the title is therefore alleged to be in the state of Sonora, and the basis of its authority is explicitly given:

    (1) Article 2 of the sovereign decree No. 70 of the 4th of August, 1824.

    (2) A law passed by the constituent congress of Sonora and Sinaloa, being No. 30, and bearing date 20th of May, 1825.

    (3) Other decrees, being embodied in sections 3, 4, 5, 6, and 7 of chapter 90 of the organic law of the treasury, being law numbered 26 of the 2d of July, 1834.

    The petition then proceeds to allege that under and by virtue of said laws and decrees such proceedings were thereunder regularly and lawfully had as that the government of the state of Sonora, by its officers duly authorized by the laws aforesaid, and of said state, duly and regularly and for a good and valuable consideration, to wit, the sum of $400, in the lawful money of the state, and for other good and valuable considerations, in said grant title set forth and described, did on the 12th day of April, 1838, sell and convey to one Senor Don Fernando Rodriguez the land hereinbefore mentioned, and more particularly hereinafter deseribed.

    The allegation or claim then is a grant from the state of Sonora. There is no claim of a grant from the Mexican government. The grant, however, recites that it is done 'in the name of the free and independent sovereign state of Sonora as well as of the august Mexican nation.'

    It is conceded that the ownership of the public lands was in [170 U.S. 681, 686]   Spain, and passed to Mexico upon its independence, and afterwards vested in the Mexican confederation or republic.

    In Texas v. Thorne, 3 Tex. 499, Justice Hemphill said:

    If the title was in the Mexican union, how did it get into the states? There was no law explicitly conveying it. It is claimed, as alleged in the petition, by virtue of the sovereign general decree numbered 70 of the 4th of August, 1824, and the recital of the grant is:

    The decree of August 4, 1824, seems to be a revenue measure simply. We quote part of it, including sections 9 and 11, upon which special stress is laid:

    This law was passed between the dates of the constitutive act and the adoption of the constitution, the latter event taking place in October. It is claimed that nothing is said in the provisions of the decree preceding the eleventh article regarding the public lands, and that hence it is asserted that they are assigned to the states by that article. It is besides contended that the colonization act of August 18, 1824, confers the right on the states to dispose of the vacant lands within their borders. This contention is suported by Goode v. McQueen's Heirs, 3 Tex. 256; Chambers v. Fisk, 22 Tex. 504; Wilcox v. Chambers, 26 Tex. 504.

    But if it be true that the state had rights in and powers of disposition of the public lands, these rights and these powers could be surrendered, and it is contended by the appellant that they were surrendered by the constitution of 1836. Preceding this constitution, October 3, 1835, a law was passed abolishing state legislatures, and establishing departmental councils. Reynolds, 195. This law contained the following provision:

    On the same day, and as part of the same law, the president made regulations, articles 10, 12, and 13 of which are as follows:


    Certainly, as far as this law could effect it, there could be no sales 'without the previous approval of the supreme government.'

    Following this law and these regulations a law was enacted establishing bases for a new constitution. The provisions which are pertinent to our inquiry are as follows:


    The constitution of 1836 has no provision in regard to the public lands, nor does it define the duties of the minor administrative officers. As to divisions into departments it enacts as follows:

    By article 1 of law of 1807, December 3, 1836, the Mexican territory was divided into as many departments as there were states, with certain modifications which did not affect Sonora. 3 Mex. St. 258. The effect of the constitution and laws necessarily was the destruction of the states as such. The government then ceased to be federal in form, and became entralized in character. The power of Sonora as a state, therefore, was extinguished. We have said that the constitution of 1836 has no provision in regard to the public lands, but the laws passed under it deal with them in such manner as to preclude the further rights of the states as such over them.

    On January 17, 1837, a law was passed (Reynolds, 210) [170 U.S. 681, 691]   establishing a national bank and creating a fund for redeeming certain currency.

    Articles 2 and 3 are as follows:

    On April 12, 1837, a law was passed (Reynolds, 223) the seventh article of which is as follows:

    On April 17, 1837, a decree was promulgated (Reynolds, 224) creating the office of superior chief of the treasury, and providing for the manner of making purchases, sales, and contracts on behalf of the nation, articles 1, 2, 4, 37, 73, 76, and 92 of which are as follows:



    ... [170 U.S. 681, 693]   '(76) The minutes of the board shall be spread on the proper book, which shall be signed by all the members thereof, and an authenticated copy transmitted to the superior chief of the treasury to enable him to make a report to the supreme government when the case requires it.


    The regulations of July 20, 1831, referred to, provide for the organization of the board of public sales, 'junta de almoneda,' and its powers. Sections 131, 132, and 133 are as follows:

    Article 132, which prescribes the manner in which the sale shall be conducted, which said article is as follows:

    Article 133, which is as follows:

    If the title to the vacant lands or the right to dispose of them belonged to the state of Sonora, the junta de almoneda had no function to perform in regard to them; in other words, it was a national instrumentality, not a state instrumentality. If, however, the vacant lands become the property of the national government by the constitution of 1836, and could be disposed of by or through the junta de almoneda, the procedure required by the law creading it would have to be followed. This law provided that sales and purchases made by the board (junta) should be published for at least eight days beforehand, and by placards which shall be posted in the most public and frequented places, and shall be inserted in the newspapers of the greatest circulation, if there be any in the place, the notice to contain the more essential circumstances and the necessary instructions pertaining to the matter. These provisions are not shown to have been complied with, and the record precludes any presumption that they were.

    There are other laws of the national government which are inconsistent with the rights of the states, after 1836, to dispose of the public lands. That of December 7, 1837, is of that character; also that of September 15, 1837. The law of December 7, 1837, provides as follows:

    The law of September 15, 1837, provided for a convention between English bondholders of Mexican bonds and the Mexican government (Reynolds, 227), section 7 of which reads as follows:

    On June 1, 1839, a law was passed approving the above-named convention (Reynolds, 232), and article 3 of this law is as follows:

    Between the date of the law and the grant in this case no regulations to be observed in carrying out colonization were established. On the contrary, by a law passed April 4, 1837, all colonization laws were certainly modified and may be repealed. The law was as follows:

    As has already been stated, the grant recites that it was made 'in the name of the free and independent and sovereign state of Sonora as well as that of the august Mexican nation.' This, it is contended, authenticates the power of the granting [170 U.S. 681, 697]   officer, and Chief Justice Marshall in U. S. v. Delassus, 9 Pet. 117, is quoted:

    So also it was said by this court in Strother v. Lucas, 12 Pet. 410, that:

    These principles were asserted of Spanish titles in the territories of Louisiana and Florida. They are disputable in their application to titles under the Mexican laws. U. S. v. Combuston, 20 How. 59. But we need not dispute them, for the proof in this case satisfies their requirement. It is ample to show that the national laws were not pursued, and besides it is conceded that at the time of the grant the state of Sonora was in rebellion against the nation. It and its officers, therefore, were opponents of the national authority, not its instruments; while declaring independence of it, they could not claim to act for it and convey its title.

    The appellee further contends that the national government approved the title of Rodriguez. The laws which have been quoted provide that when the property had been knocked down to the highest bidder a minute or report of the proceedings was required to be made and transmitted to the supreme government, either directly under the regulations of 1831, or first to the supreme chief of the treasury under the act of April 17, 1837, and the sale could not be executed until [170 U.S. 681, 698]   the approval of the supreme government. By 'supreme government' was meant the national government, and hence the approval of the governor of Sonora, which the record shows, was not sufficient. The certificate of the governor is limited and significant:

    It is contended, however, that a communication of an officer of the state of Sonora to an officer of the general government made in 1847, and a certificate of the governor of Sonora given two days later, justify the presumption that the sale had been approved by the general government. We give them in full:

    Jose de Aguilar.'

    These do not establish the presumption claimed for them. The letter to the Mexican minister of state is dated nine years subsequent to the sale and grant to Rodriguez. It should have preceded the grant. Had it done so, some presumption of approval might then have been deduced from the grant of the performance of precedent conditions. The approval of the government stated in the certificate of Gov. Jose de Aguilar manifestly refers to the approval of his predecessor, Leonardo Escalante, and not an approval by the general government. There is no other approval 'which is attached to the title and the certificate of Don Maria Mendoza.'

    There was introduced in evidence an ex parte affidavit alleged to have been mae in 1881 before the treasurer general of the state of Sonora by one Matias Moran and one Antonio Corvillo. Who these persons were is not stated. Matias has no identification but his name. Antonio Corrillo is designated 'citizen.' Of this paper the following testimony was given by Bartolome Rochin, keeper of the archives of the treasury at Hermosillo:

    The following is as much of the affidavit as we think necessary to quote:

    This affidavit is very questionable. It was testified to be in the handwriting of a Mr. Telles, who, it was also testified, was treasurer general in 1877 and 1878, and was taken from the archives by the witness who produced it. At whose instance it was taken, or for what purpose, does not appear, except that it is recited in it that the persons who made it were personally present 'for the purpose of giving compliance to the foregoing disposition or order of the governor of the state.' What disposition or order is not explained. The language of the paper is very ambiguous. It is not clear whether it is the notary who, acting for Manuel Diaz, treasurer general, or the deposing witnesses, who recite that the title was in the year 1838 adjudicated to Don Fernando Rodriguez, and in that of 1847 was approved by the supreme [170 U.S. 681, 702]   government of the nation. But, even if by the latter, it is distinctly not their testimony, but only an assumption preceding it. This testimony comes afterwards, and is confined to the verification of certain signatures.

    It follows from these views that the decree of the court of private land claims should be, and it is, reversed, and the cause remanded for further proceedings.

    Mr. Justice GRAY concurred in the result. Mr. Justice BREWER, Mr. Justice BROWN. Mr. Justice SHIRAS, and Mr. Justice PECKHAM, dissented.

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