Subsequently, upon petition of respondent a rehearing was granted.
[365]W. 8. Wells, for Bespondent, on Eehearing.
First — Tbe Act of 1852 was an attempt on tbe part of tbe State to dispose of ber lands in advance of tbe action of tbe General Land Department, but manifests no intent, or even attempt, in any way, to deprive tbe General Land Department of its supervisory power.
Tbe Act of .1841 allows tbe Stats to select tbe lands in sucb manner as tbe Legislature may direct; but tbe mere act of selection does not imply location in its full sense. It was competent for tbe State, acting through tbe Legislature, or tbe agent of tbe State, whose warrant, issued under tbe Act of 1852, was bis letter of authority to select any given half section by merely designating it; and so far as tbe United States is concerned, or in fact tbe State herself, if ber agent chooses to select at random any given section, taking tbe chances in every respect as to bow, when, and against whom it might fall, she has no complaint to make. That selection, thus made, appropriates tbe land, and bad there been no law upon tbe-subject, it is bard to see what objection tbe United States could make to tbe mere act of selection thus evidenced. If, however, when the selection was to be located, that is fixed upon tbe ground, and tbe plats filed, adverse pre-emption or other superior rights bad attached, it was liable to be defeated; but this mere liability per se should not be-allowed to operate-to defeat tbe-title.
Tbe Act of 1841 (Sec. 8, Lester’s Land Laws, p. 61.) implies a difference between tbe act of selection and location. Tbe one is left to tbe State, while tbe other implies-tbe constant supervision of tbe General Government. Thus it refers to sectional divisions and sub-divisions peculiar to, based upon, and in conformity with tbe system of our Land Department, and known only to tbe States by tbe connection of their land system with tbe Department, and existing only where originally adopted by tbe General Government or necessarily connected with tbe public surveys. It reserves lands by-the-action-of tbe- General Government; it stays tbe final act of location, but not tbe selection, until survey. [366]True it is that tbe Act of 1852 authorizes no distinction, for it nowhere uses the term “ selection;” but in arguing the forcé of the act of 1841, in connection with our State legislation, we may properly insist that we can allow the action under the law of 1852, to operate to the full extent to which the State or her agent was authorized to proceed.
The first section of the Act authorizes the issuance of land warrants. The second section authorizes the location— erroneously so termed, for it is not only different from, but contrary to, a location in its essentials, as defined in the Act of 1841. The fourth section provides for survey and entry in office of County Clerk, and the fifth and sixth provide for the protection of the rights of the agent of the State until the location shall be made, and prescribes the mode of proceeding in case of non-conformity with the survey of the General Government, or a conflict. ^Che tenth and eleventh sections provide for a survey and full record of the appropriation of the land.
All this has been complied with on our part; every step there indicated has been pursued by us; our selection was duly made, surveyed and recorded; and, more than that, it had become final, not only as to the State, but as to the United States, for we produce the approval of the United States Register of this location, made immediately upon and following the completion of the survey. In Megerle v. Ashe, (33 Cal. 74), since affirmed by this Court in Smith v. Athern, (34 Id. 506), it is settled, that upon a location on a particular parcel of surveyed land, “selected and located,” says-dhe Comí, “in accordance with the provisions of the Act of Congress, when the selection and location have b§en made by the proper officers or agents, acting on behalf of the State, in such manner as the Legislature has-directed, and the selection and location has been approved by the proper officers of the United States, then the identification-of the land has made the title perfect, and attached it to the particular tract settled.” It is essential, under the Act of 1841, that the Legislature of the State shall direct the mode and manner of selection, and it seems [367]equally essential, and, in fact bas always been so considered in the case above cited, and in all others where the subject has been under discussion — that the final approval of the United States officers was necessary to perfect the title thus sought to be acquired.
Second--The certificate of the Register of the United States Land Office, showing the location of plaintiffs school land warrant, is something more than a certificate. It is the approval of the United States officer, insisted upon as essential to the location in Megerle v. Ashe, (supra). It is, in fact, the location itself, so far as the United States is-concerned. It is one of the means adopted and sanctioned by the Executive Department of the Government in carrying out the law of the land; and this being the case, the document thus issued has at least the force of a certificate of location as against the United States. (Stats. 1859.)
There then comes to our aid the Act of the State Legislature, (Hittell’s Digest, 703), which makes our certificate prima facie evidence of title.
Third — In the present case the-first question is: Has the title passed from the United States ? The second: Has it vested in the plaintiff as the vendee of the State ? The first question depends exclusively on the laws of the United States, and must be determined by those_ laws. As to the second, we have only to refer to the Act of 1852, and are entitled to invoke its protection fully. By it we are secured in the possession of the land, subject only to be defeated so far as we may conflict with the United States surveys and rights existing at the-date of the selection. The State in her own behalf, has no right to question our act. If, by any accident, mischance, blunder or otherwise, she has sold the same land twice, every principle of fair dealing forbids that she shall prefer the later purchaser, or the title of either. If the United States recognizes the fact (and in this case and upon this record she does), that the title has passed from her to the agent of the State, the only question remaining is between the State and her agent, as to whether the provisions of the Act of 1852 have been observed, and the [368]plaintiff has brought himself within them. If he, as the agent of the State has observed the provisions of the Act, has made the selection as therein provided, the matter -is at an end as between the State and him; and if the United. States has approved it, the location is perfect, and the question must end here.
That the question as to whether title has passed from the United States must be determined by the laws of the United States alone, we cite: Wilcox v. Jackson, (13 Peters, 498); United States v. Fitzgerald et al., (15 Id. 407;) Lessee of Hickey v. Stewart, (3 Howard, 750); Bagnall v. Broderick, (13 Peters, 450.)
M. A. Wheaton, for Appellant, for Rehearing.
First — By the eighth section of the Act of Congress of September 4, 1841, (Lester, p, 61.) five hundred thousand acres of land were granted to the State “for purposes of internal improvement,” “ the selections in all of the said States to be made within their limits respectively, in such manner as the Legislature thereof shall direct, and located in parcels, conformably to-sectional divisions and subdivisions of not less than three hundred and twenty acres in any one location on any public land,” etc., “which said location may be made-at any time after the lands of the United States in said States respectively, shall have been surveyed,” etc.
The admission of California into the Union, with Section 2 of Article IX in her Constitution, by Act of Congress indirectly changed the proceeds of the sales of the lands from an “internal improvement” into a school fund.
The title to these lands vested in California the moment she was admitted as a State into the Union, but they had yet to be selected and located. These two words, “selected” and “located,” are almost identical in meaning; taken as they occur in said section eight, they both together mean choosing and segregating these lands from the mass of public lands within the State.
In the Act of May 3, 1852, the Legislature undertook to dispose of the said lands, (Stats. 1852, p. 41). As by the [369]Constitution of this State, every law of the Legislature “shall embrace but one object, and that object shall be expressed in the title,” (Art. IV., Sec. 25); it is very certain' that the object of the law was to dispose of the land, the provisions of the law contained the method and manner which she, in mistaken belief of unlimited power over the subject, conceived to be proper to adopt in making such disposition.
So much of the Act as provides for locating the warrants upon unsurveyed land, is in conflict with the law of Congress making the grant, and is void. (Const. U. S., Art. VI., Second Subdiv.)
The provisions of the Act being in conflict with the provisions and terms of the grant to the State, may well be challenged as legislative acts impairing the obligations of a contract. (Terry v. Megerle, 24 Cal. 624; Grogan v. Knight, 27 Id. 515.)
On this account, so much of the Act of 1852 as provides for the selection and location of unsurveyed lands, must be totally rejected as utterly void; and this portion of the Act being got rid of, the remainder is more easy to comprehend, and still holds good. (Lathrop v. Mills, 19 Cal. 530; Robinson v. Bidwell, 22 Id. 386; Warren v. Mayor of Charleston, 2 Gray, 98; French v. Teschmacher, 24 Cal. 546.)
Sections one, two, three, seven, eight, nine, thirteen, fifteen, sixteen and seventeen of the Act can all be sustained, while sections four, five, ten, eleven and twelve, should be rejected as conflicting with the law of Congress and the conditions of the grant, because providing for nothing but locations upon unsurveyed lands. Section six would also seem to be unnecessary to the location of surveyed lands, and section fourteen is unnecessary for any purpose except to assist in showing the intention of the Legislature.
It is plain, that while the Legislature, acting beyond her powers, made extraordinary provisions for the selection and location of unsurveyed lands, yet the whole Act was not exhausted in such illegal usurpation, but portions of it, including all of section three, provide-for-selection and loca[370]tion, according to law, upon surveyed lands, and said section places tbe owner oí tbe warrants in tbe shoes of tbe State, and they have tbe same right to choose tbe manner of making tbe selection and location which tbe State itself would have bad, bad she not sold tbe warrants.
Statutes are to be construed according to their meaning and intention, even when tbe strict letter of tbe statute is otherwise. (Knowles v. Yeates, 31 Cal. 86-7; 1 Kent's Com. 461.)
Second — We are still of tbe opinion that neither of tbe exhibits offered in evidence was any legal evidence of title. Tbe first shows only a location upon unsurveyed lands, and is, of course, void; tbe second was not issued under any law of this State, or of tbe United States, and hence was not prima facie evidence under our statute, (Hittell, 703); tbe third is void upon its face, as Nye, tbe Begister of tbe Stockton office, could not lawfully certify to tbe consent of tbe Begister of tbe San Francisco office. Tbe exhibit is issued without authority of law, and is no legal evidence,
Tbe certificates were not copies-of tbe records and consequently were not legal evidence. (Hittell, 5583; Practice Act, Sec. 447; Gregory v. McPherson, 13 Gal. 572-3-4.)