Urton v. Wilson

Myrick, J. A controversy arose before the surveyor-general of the State as to the conflicting claims of plaintiff and defendant regarding the purchase from the State of certain lands, which controversy was by the surveyor-general referred to the court below for determination.

The land was surveyed by the United States and listed to the State, and thereafter, July 14, 1870, Wilson made application [13]to purchase. April 25,1872, his application was approved, and June 4, 1872, he made the first payment of the purchase money, and received the register’s certificate. On the 20th of September, 1878, the plaintiff filed his application to purchase, and demanded that the controversy be sent to the proper court for adjudication. The plaintiff was not in possession and has paid nothing. The plaintiff claims that defendant’s application was invalid, on the ground that there was no law in force at the date of that application for the sale of land in lieu of the sixteenth and thirty-sixth sections lost to the State/ The land is the west half of section 28.

For the purposes of the controversy between the plaintiff and defendant, it is necessary only to say that plaintiff has no right to purchase the land. Section 3, article xvii., of the Constitution of this State declares: “Lands belonging to this State, which are suitable for cultivation, shall be granted only to actual settlers, and in quantities not exceeding three hundred and twenty acres to each settler, under such conditions as shall be prescribed by law.” The plaintiff was not an actual settler. It is true, he made his application before the Constitution was adopted, but he thereby acquired no rights which the State could not annul; he had paid nothing. This question was directly considered and passed on in Johnson v. Squires, 55 Cal. 103. So long as the statute remained in force, the plaintiff’s application might have been entitled to be considered, if defendant’s application was void; but when the statute was modified by the Constitution, he was obliged to bring himself within the constitutional provision. We note, as referring, in principle, to the plaintiff’s case, what is said by the court (by Sawyer, C. J.) in Hutton v. Frisbie, 37 Cal. on pp. 490-498, regarding pre-emption laws and the effect of their repeal.

In one of the briefs filed on behalf of appellant, the attorneys who prepared the same were unfortunate in not having carefully considered some of the cases cited, or in their construction of the decisions. In speaking of the decision in Johnson v. Squires, 55 Cal. 103, counsel said. “All that the court said about the effect of the new Constitution upon the judgment was obiter dicta. There were no facts before the court upon which the constitutional question could be decided.” Let us see what the opinion