far as any benefits from such transportation are sought. The framers of the constitution never intended that a right given should not be fully enjoyed. In Brown v. Maryland, 12 Wheat. 447, Chief Justice MARSHALL, in delivering the opinion of the court, speaking of the commercial power of congress, and after observing that it is co-extensive with the subject on which it acts, and cannot be stopped at the exterior boundary of a state, but must enter its interior, said: "If this power reaches the interior of a state, and may be there exercised, it must be capable of authorizing the sale of those articles which it introduces. Commerce is intercourse; one of its most ordinary ingredients is traffic. It is inconceivable that the power to authorize this traffic, when given in the most comprehensive terms, with the intent that its efficacy should be complete, should cease at the point when its continuance is indispensable to its value. To what purpose should the power to allow importation be given, unaccompanied with the power to authorize a sale of the thing imported? Sale is the object of importation, and is an essential ingredient of that intercourse of which importation constitutes a part. It is as essential an ingredient, as indispensable to the existence, of the entire thing, then, as importation itself. It must be considered as a component part of the power to regulate commerce. Congress has a right, not only to authorize importation, but to authorize the importater to sell. * * The power claimed by the state is, in its nature, in conflict with that given to congress; and the greater or less extent in which it may be exercised does not enter into the inquiry concerning its existence. We think, then, that if the power to authorize a sale exists in congress, the conclusion that the right to sell is connected with the law permitting importation, as an inseparable incident, is inevitable." And the chief justice added: "We suppose the principles laid down in this case to apply equally to importations from a sister state." Page 449.

Assuming, therefore, as correct doctrine, that the right of importation carries the right to sell the article imported, the decision in the Kansas case may perhaps be reconciled with the one in this case by distinguishing the power of the state over property created within it, and its power over property imported; its power in one case extending, for the protection of the health, morals, and safety of its people, to the absolute prohibition of the sale or use of the article, and in the other extending only to such regulations as may be necessary for the safety of the community, until it has been incorporated into and become a part of the general property of the state. However much this distinction may be open to criticism, it furnishes, as it seems to me, the only way in which the two decisions can be reconciled. There is great difficulty in drawing the line precisely where the commercial power of congress ends, and the power of the state begins. The same difficulty was experienced in Brown v. Maryland, in drawing a line between the restriction on the states to lay a duty on imports and their acknowledged power to tax persons and property. In that case the court said that the two,-the power and the restriction,-though distinguishable when they did not approach each other, might, like the intervening colors between white and black, approach so nearly as to perplex the understanding as colors perplex the vision, in marking the distinction between them; but as the distinction existed, it must be marked as the cases arise. And after observing that it might be premature to state any rule as being universal in its application, the court held as sufficient for that case that when the importer had so acted upon the thing imported that it had become incorporated and mixed up with the mass of property in the country, it had lost its distinctive character as an import, and had become subject to the taxing power of the state; but that while remaining the property of the importer, in his warehouse in the original form or package in which it was imported, a tax upon it was plainly a duty on imports. So, in the present case, it is perhaps impossible to state any rule which would determine in all cases where the right to sell an

imported article under the commercial power of the federal government ends, and the power of the state to restrict further sale has commenced. Perhaps no safer rule can be adopted than the one laid down in Brown v. Maryland, that the commercial power continues until the articles imported have become mingled with and incorporated into the general property of the state, and not afterwards. And yet it is evident that the value of the importation will be materially affected if the article imported ceases to be under the protection of the commercial power upon its sale by the importer. There will be little inducement for one to purchase from the importer, if immediately afterwards he can himself be restrained from selling the article imported; and yet the power of the state must attach when the imported article has become mingled with the general property within its limits, or its entire independence in the regulation of its internal affairs must be abandoned. The difficulty and embarrassment which may follow must be met as each case arises.

In the License Cases, reported in 5 How. 600, this court held that the states could not only regulate the sales of imported liquors, but could prohibit their sale. The judges differed in their views in some particulars, but the majority were of opinion that the states had authority to legislate upon subjects of interstate commerce until congress had acted upon them; and as congress had not acted, the regulation of the states was valid. The doctrine thus declared has been modified since by repeated decisions. The doctrine now firmly established is that, where the subject upon which congress can act under its commercial power is local in its nature or sphere of operation, such as harbor pilotage, the improvement of harbors, the establishment of beacons and buoys to guide vessels in and out of port, the construction of bridges over navigable rivers, the erection of wharves, piers, and docks, and the like, which can be properly regulated only by special provisions adapted to their localities, the state can act until congress interferes, and supersedes its authority; but where the subject is national in its character, and admits and requires uniformity of regulation, affecting alike all the states, such as transportation between the states, including the importation of goods from one state into another, congress can alone act upon it, and provide the needed regulations. The absence of any law of congress on the subject is equivalent to its declaration that commerce in that matter shall be free. Thus the absence of regulations as to interstate commerce with reference to any particlar subject is taken as a declaration that the importation of that article into the states shall be unrestricted. It is only after the importation is completed, and the property imported has mingled with and become a part of the general property of the state, that its regulations can act upon it, except so far as may be necessary to insure safety in the disposition of the import until thus mingled. Cooley v. Board, etc., 12 How. 299, 319; State Freight Tax Cases, 15 Wall. 232, 271; Welton v. Missouri, 91 U. S. 275-282; Railroad Co. v. Husen, 95 U.S. 465, 469; Mobile v. Kimball, 102 U. S. 691, 697; Ferry Co. v. Pennsylvania, 114 U. S. 196, 203, 5 Sup. Ct. Rep. 826; Brown v. Houston, 114 U. S. 622, 631, 5 Sup. Ct. Rep. 1091; Walling v. Michigan, 116 U. S. 446, 455, 6 Sup. Ct. Rep. 454; Pickard v. Car Co., 117 U. S. 34, 6 Sup. Ct. Rep. 635; Railway Co. v. Illinois, 118 U. S. 557, 7 Sup. Ct. Rep. 4; Robbins v. Taxing Dist., 120 U. S. 489, 7 Sup. Ct. Rep. 592. It is a matter of history that one of the great objects of the formation of the constitution was to secure uniformity of commercial regulations, and thus put an end to restrictive and hostile discriminations by one state against the products of other states, and against their importation and sale. "It may be doubted," says Chief Justice MARSHALL, "whether any of the evils proceeding from the feebleness of the federal government contributed more to that great revolution which induced the present system than the deep and general conviction that commerce ought to be regulated by congress. It is not, therefore, matter of surprise that the grant should be as extensive as the mischief, and should comprehend all for

eign commerce and all commerce among the states. To construe the power so as to impair its efficacy would tend to defeat an object, in the attainment of which the American government took, and justly took, that strong interest which arose from a full conviction as to its necessity." Brown v. Maryland, 12 Wheat. 446. To these views I may add, that if the states have the power asserted, to exclude from importation within their limits any articles of commerce because in their judgment the articles may be injurious to their interests or policy, they may prescribe conditions upon which such importation will be admitted, and thus establish a system of duties as hostile to free commerce among the states as any that existed previous to the adoption of the constitution.

MORE et al. v. STEINBACH et al.
(April 16, 1888.)

1. PUBLIC LANDS-SPANISH AND MEXICAN GRANTS IN CALIFORNIA-CONFIRMATION. The act of congress of March 3, 1851, "to ascertain and settle the private land claims in the state of California, " (9 St. 631,) created a board of commissioners to which all persons, claiming land by virtue of any right or title derived from the Spanish or Mexican government, were required to present their claims for examination and determination within two years from its date, with such documentary evidence and testimony of witnesses as they relied upon to support their claims, and provided, in substance, that if upon examination they were found by the board, and by the courts of the United States, to which an appeal could be taken, to be valid, the claims should be confirmed and surveyed, and patents issued therefor to the claimants; but that all lands, the claims to which were not presented to the board within that period, should be considered as a part of the public domain of the United States. Held, (1) that this provision requiring the presentation of their claims was obligatory on claimants, and that they were bound by the judgment of the board, if confirmed by the courts of the United States on appeal, and by the survey and location of the claim by the officers of the land department following the final decree of confirmation; (2) that the patent of the United States, issued after the claim was surveyed and located, is conclusive, both as to the validity of the title of the claimant and the extent and boundaries of his claim, as against all parties not claiming by superior title, such as would enable them to contest the action of the government respecting the property.

In order that a perfect title to land might vest under a grant from the Mexican government a delivery of possession by its officers was necessary. The proceeding was termed a judicial delivery of possession.

3. SAME TERMINATION OF POWERS OF MEXICAN OFFICERS.

The authority and jurisdiction of Mexican officials in California terminated on the 7th of July, 1846. No alcalde appointed or elected subsequent to that date was empowered to give judicial possession of land granted by the previous government.

4. SAME LAWS OF CONQUERED OR CEDED COUNTRY.

The doctrine that the laws of a conquered or ceded country, except so far as affected by the political institutions of the new government, remain in force after conquest or cession until changed by it, does not apply to laws authorizing the alienation of any portions of the public domain, or to officers charged under the former government with that power. No proceedings affecting the rights of the new government over public property could be taken, except in pursuance to its authority on the subject.

5. QUIETING TITLE-PLAINTIFF'S POSSESSION-CODE CIVIL PROC. CAL. § 733.

Under the Code of Civil Procedure of California a plaintiff, asserting title to lands, though out of possession, may maintain an action to determine an adverse claim, estate, or interest in the premises.

(Syllabus by the Court.)

Appeal from the Circuit Court of the United States for the District of California.

This is a suit in equity to determine the adverse claims of the defendants below, appellants here, to certain lands in the county of Ventura, in the state of California. One of the plaintiffs, Rudolph Steinbach, is an alien and a subject of the emperor of Germany. The other plaintiff, Horace W. Carpentier, is a citizen of the state of New York. The defendants are all citizens of

the state of California. In their complaint the plaintiffs allege that they are the owners in fee of the premises, which are fully described; that the defendants claim an estate therein adverse to them; that such claim is wholly unfounded and invalid in law or equity; and that its assertion depreciates the value of their title and property, and prevents them from using or selling the property, and otherwise harasses and annoys them in its possession and ownership. They therefore pray that the defendants may be required to set forth the grounds and nature of their claims and pretensions, that the court may determine each of them; and that it may be adjudged that they are unfounded in law and equity, and that the plaintiffs are the owners of the premises and entitled to their possession, and may have a writ of assistance for the possession of such portions as may be found to be in the occupation of the defendants, and for such other and further relief as may be just. In their answer the defendants disclaim all interest in a portion of the premises, and deny that the plaintiffs have any estate in the residue. As to such residue they admit that they claim an estate in fee-simple therein, and aver that the defendant A. P. More is now, and his grantors have been since 1843, the owners thereof in fee by virtue of a grant made April 28, 1840, by Alvarado, then governor of the department of California under the Mexican government; that the grant was approved by the departmental assembly on the 26th of May, 1840; and that thereafter, on the 1st of April, 1843, Micheltorena, then governor of the department, ratified and confirmed the grant; and that, on the 17th and 18th of November, 1847, the grant was duly surveyed, and the grantee placed in possession by the first alcalde of the district in presence of the neighboring proprietors, who consented to the lines thus established. The answer further alleges that the grant was adjudged to be valid and confirmed under the act of congress of March 3, 1851, "to ascertain and settle the private land claims in the state of California," (9 St. 631,) and that the defendant A. P. Moore, on the 4th of March, 1858, succeeded by proper conveyances to all the interests of the grantee in the premises, and still remains the owner thereof, except as to a portion not in dispute here, which he has alienated, and as to portions which are described as belonging to the other defendants, all of whom assert title to the parcels held by them under conveyances from him. A replication being filed, proofs were taken, from which it appears that the plaintiffs claimed under a patent of the United States, issued to one Manuel Antonio Rodrigues de Poli, bearing date on the 24th of August, 1874. It is conceded that whatever title was acquired by Poli under the patent had passed by proper mesne conveyances to them. The patent recites the proceedings taken by Poli before the land commissioners under the act of March 3, 1851; the filing of his petition in March, 1852, asking for the confirmation of his title to a tract of land known as the mission of San Buenaventura, his claim being founded upon a sale made on the 8th of June, 1846, by the then governor of the department of California; the decree of confirmation rendered by the board of commissioners in May, 1855; the affirmation of said decree by the district court of the United States for the Southern district of California in April, 1861, to the extent of 11 square leagues, and by the supreme court of the United States, as shown by its mandate issued in December, 1868; and the subsequent depositing in the general land-office of a plat of the survey of the claim confirmed, authenticated by the signature of the surveyor general of the United States for California, the descriptive notes and plat of the survey being set forth in full. The land of which the plaintiffs claim to be the owners is embraced in this patent, and upon its efficacy in transferring the title they rely. The defendants, as stated in their answer, claim under a grant made by Governor Alvarado to Manuel Jimeno on the 28th of April, 1840, which was confirmed under the act of congress of March 3, 1851, to ascertain and settle private land claims in California. It appeared in evidence-a fact not averred in the answer-that the claim thus confirmed was subsequently

surveyed as required by that act, and on the 22d of April, 1872, a patent of the United States therefor was issued to the claimants, Davidson and others, who had acquired by proper conveyances whatever rights Manuel Jimeno possessed under the grant. The defendants afterwards succeeded to the rights and title of these claimants. The patent to Davidson and others recites the various proceedings taken by them for the confirmation of the claim to the land covered by the grant to Manuel Jimeno, issued by Governor Alvarado on the 28th of April, 1840, and approved in a subsequent instrument by Governor Micheltorena on the 1st of April, 1843, which two instruments are described as separate grants; the confirmation of the claim by the board of land commissioners on the 22d of May, 1855, and that, an appeal having been taken to the district court of the United States for the Southern district of California, the attorney general of the United States gave notice that it was not the intention of the United States to prosecute it, and thereupon, at its December term, 1857, it was dismissed by the court. The patent also recites the subsequent proceedings taken for the location and survey of the claim, by which it appears that two surveys were made, both of which were brought before the district court of the United States under the act of 1860; and that the one made under instructions of the United States surveyor general in December, 1860, and approved by him in February, 1861, was adopted by the court "as the correct and true location of the lands confirmed." The descriptive notes of the survey approved are set forth in full in the patent, with a plat of the lands. This patent does not embrace the premises to which adverse claims are asserted by the defendants. Their contention is that the grant followed by the judicial possession given by the alcalde of the vicinity in 1847, vested in the grantee a perfect title to the lands within such judicial possession, which does embrace these lands; and that their right to such lands is not lost by reason of the fact that they are not included in the subsequent survey of the claim under the act of 1851, and the patent of the United States. The court below held against their contention, and adjudged that the plaintiffs were owners in fee of the described premises, and that the adverse claims of the defendants to an estate or interest therein were unfounded in law or equity, and gave a decree, as prayed, for the plaintiffs. From this decree the defendants have appealed to this court.

J. B. Mhoon and Geo. Flournoy, for appellants. E. S. Pillsbury, for appellees.

Mr. Justice FIELD, after stating the facts as above, delivered the opinion of the court.

The question presented for determination in this case relates to the effect of proceedings taken under the act of March 3, 1851, to ascertain and settle private land claims in California, upon the claims of parties holding concessions of lands in that state under the Spanish or the Mexican government. By the session of California to the United States, the rights of the inhabitants to their property were not affected. They remained as before. Political jurisdiction and sovereignty over the territory and public property alone passed to the United States. U. S. v. Percheman, 7 Pet. 51, 87. Previous to the cession numerous grants of land in California had been made by the Spanish and Mexican governments to private parties. Some of these were of tracts with defined boundaries; some were for specific quantities of land to be selected from areas containing a much larger quantity; and others were of lands known only by particular names, without any designated boundaries. To ascertain what rights had thus passed, and to carry out the obligation which the government of the United States had assumed to protect all rights of property of those who remained citizens of the country, congress passed the act of March 3, 1851. By it a board of commissioners was created, to which all persons claiming land by virtue of any right or title derived from the Mexican or