Spanish governments could present their claims, and have them examined and their validity determined; and the claimants could appear by counsel and produce documentary evidence and witnesses in support of their claims. The act required all persons thus claiming lands in California to present their claims to the board within two years from its date, and declared in substance that if, upon examination, they were found by the board, and by the courts of the United States to which an appeal was allowed, to be valid, the claims should be confirmed and surveyed, and patents issued therefor to the claimants. But the act also declared that all lands, the claims to which were not presented to the board within that period, should be considered as part of the public domain of the United States. In Beard v. Federy, 3 Wall. 490, this court, while stating that it was unnecessary to express any opinion as to the validity of the legislation in respect to perfect titles acquired under the former government, held that it was not subject to any constitutional objection, so far as it applied to grants of an imperfect character, which required further action of the political department to render them perfect. The grant to Manuel Jimeno, under which the defendants claim, was one of an imperfect character. Upon the cession of the country there remained a further proceeding to be had with respect to that grant before an indefeasible title could vest in the grantee. A formal transfer of the property to the grantee by officers of the government was necessary. The proceeding was termed a judicial delivery of possession. Until it was had the grant was an imperfect one. As pre- . liminary to or as part of the official delivery, the boundaries of the land were to be established, after summoning the neighboring proprietors as witnesses to the proceeding. Malarin v. U. S., 1 Wall. 282, 289. No such official delivery of possession was had under the former government to the grantee, Jimeno, though the grant to him contains these conditions: "He shall petition the proper judge to be put in judicial possession by him in virtue of this document, by whom the boundaries shall be marked out, on the limits of which he shall place the proper landmarks. The land now granted is of the extent of four square leagues, more or less, as shown by the map which accompanies the espediente. The judge who shall give him possession shall have it measured in conformity with the evidence, the surplus that results remaining in the nation for its proper use."

The authority and jurisdiction of Mexican officials terminated on the 7th of July, 1846. On that day the forces of the United States took possession of Monterey, the capital of California, and soon afterwards occupied the principal portions of the country, and the military occupation continued until after the treaty of peace. The political department of the government designated that day as the period when the conquest of California was complete and the authority of the officials of Mexico ceased. In this matter the judiciary follows the political department. U. S. v. Yorba, 1 Wall. 412, 423; U. S. v. Pico, 23 How. 321, 326; Hornsby v. U. S., 10 Wall. 224, 239. After that date no alcaldes elected by the citizens had any jurisdiction to deliver judicial possession. This was distinctly held in the case of Fremont v. U. S., 17 How. 542, 563. In answer to the objection there taken that there was no survey or judicial possession of the land granted to Alvarado, under whom Fremont claimed, the court said: "The alcalde had no right to survey the land or deliver judicial possession, except by the permission of the American authorities. He could do nothing that would in any degree affect the rights of the United States to the public property; and the United States could not justly claim the forfeiture of the land for a breach of these conditions, without showing that there were officers in California, under the military government, who were authorized by a law of congress to make this survey, and deliver judicial possession to the grantee. It is certain that no such authority existed after the overthrow of the Mexican government."

The doctrine invoked by the defendants, that the laws of a conquered or

ceded country, except so far as they may affect the political institutions of the new sovereign, remain in force after the conquest or cession until changed by him, does not aid their defense. That doctrine has no application 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 sovereign over public property can be taken except in pursuance of his authority on the subject. The cases in the supreme court of California and in this court which recognize as valid grants of lots in the pueblo or city of San Francisco by alcaldes appointed or elected after the occupation of the country by the forces of the United States, do not militate against this view. Those officers were agents of the pueblo or city, and acted under its authority in the distribution of its municipal lands. They did not assume to alienate or affect the title to lands which was in the United States. Welch v. Sullivan, 8 Cal. 147; White v. Moses, 21 Cal. 34; Merryman v. Bourne, 9 Wall. 592. It follows from what is thus said that it would be a sufficient answer to the contention of the defendants that the grant under which they claim to have acquired a perfect title conferred none. The grantees were not invested with such title, and could not be without an official delivery of possession under the Mexican government, and such delivery was not had, and could not be had, after the cession of the country, except by American authorities acting under a law of congress. But independently of this consideration, and assuming that the title under the grant was perfect, the obligation of the grantee was none the less to present his claim to the board of land commissioners for examination. The ascertainment of existing claims was a matter of vital importance to the government in the execution of its policy respecting the public lands; and congress might well declare that a failure to present a claim should be deemed an abandonment of it, and that the lands covered by it should be considered a part of the public domain. Certain it is that a claimant presenting his claim to the board for examination and confirmation, in order that he might subsequently acquire a patent from the government, is bound by the adjudication of the board. After submitting his claim to its examination and judgment, he cannot afterwards be heard to say that in adjudicating upon his title the board erred, or that the land department in determining the boundaries of his claim erred, in order that he may claim outside of the survey and patent other lands which he considers covered by his grant. He cannot repudiate a jurisdiction to which he has appealed; and the estoppel extends to parties claiming under him. Boyle v. Hinds, 2 Sawy. 527; Cassidy v. Carr, 48 Cal. 339.

In determining claims under Mexican grants the board of land commissioners was required by the act under which it was created to be governed by the treaty of Guadalupe Hidalgo, the law of nations, the laws, usages, and customs of the government from which the claim was derived, the principles of equity, and the decisions of the supreme court of the United States, so far as they were applicable. And in U. S. v. Fossatt, 21 How. 445, 449, this court, in considering what was involved in the inquiry into the validity of a claim to land under that act, said: "It is obvious that the answer to this question must depend, in a great measure, upon the state and condition of the evidence. It may present questions of the genuineness and authenticity of the title, and whether the evidence is forged or fraudulent; or it may involve an inquiry into the authority of the officer to make a grant, or whether he was in the exercise of the faculties of his office when it was made; or it may disclose questions of the capacity of the grantee to take, or whether the claim has been abandoned or is a subsisting title, or has been forfeited for a breach of conditions. Questions of each kind here mentioned have been considered by the court in cases arising under this law. But, in addition to these questions upon the vitality of the title, there may arise questions of extent, quantity, location, boundary, and legal operation, that are equally essential in determining the validity of the claim

L

In affirming a claim to land under a Spanish or Mexican grant, to be valid within the law of nations, the stipulations of the treaty of Guadalupe IIidalgo, and the usage of those governments, we imply something more than that certain papers are genuine, legal, and translative of property. We affirm that the ownership and possession of land of definite boundaries rightfully attach to the grantee." Trust relations respecting the property between the patentee and others may be enforced equally with such relations between him and others respecting any other property, but until the patent is set aside or modified by proceedings taken at the instance of the government, all the questions necessarily involved in the determination of a claim to land under a Spanish or Mexican grant, and in establishing its boundaries, are concluded by it in all courts and proceedings, except as against parties claiming by superior title, such as would enable them to resist successfully any action of the government in disposing of the property. The confirmation takes effect, by relation, as of the date of the first proceeding commenced before the land commissioners; and an adjudication that at that date it was valid, is also an adjudication that it was valid at the date it was made. And the patent which follows the confirmation and approved survey, and is a matter of record, is itself evidence of the regularity of preliminary proceedings. As was said in Beard v. Federy, 3 Wall. 478, 492, "by it the government declares that the claim asserted was valid under the laws of Mexico; that it was entitled to recognition and protection by the stipulations of the treaty, and might have been located under the former government, and is correctly located now, so as to embrace the premises as they are surveyed and described. As against the government this record, so long as it remains unvacated, is conclusive. And it is equally conclusive against parties claiming under the government by title subsequent. It is in this effect of the patent as a record of the government that its security and protection chiefly lie."

It remains to consider two other positions taken by the appellants: First, that the sale to Poli of the ex-mission of San Buenaventura was illegal and void, and hence that no title passed to the patentee on its confirmation; second, the want of any allegation in the complaint, or any evidence in the proofs, that the plaintiffs were in possession of the premises when this suit was commenced. In support of the first position the appellants cite U. S. v. Workman, 1 Wall. 745. In that case it was held that the departmental assembly of California had no power to authorize the governor to alienate any public lands of the department, and that its own power was restricted to that conferred by the laws of colonization, which was simply to approve or disapprove of the grants made by the governor under those laws. But it does not follow that there were not exceptional circumstances with reference to the sale to Poli, which authorized the governor to make it. We are bound to suppose that such was the case, in the absence of any evidence to the coutrary, from the fact that the validity of his claim under it was confirmed by the board of land commissioners, by the district court of the United States, and by this court on appeal. The question of its validity was thereby forever closed, except as against those who might be able to show a prior and better title to the premises. The defendants show no title whatever; but, on the contrary, the grant under which they assert title has been, by the adjudication of the board of land commissioners, and by the survey and patent, confined to other land. Second, as to the want of any allegation in the complaint of possession by the plaintiffs, or any evidence of that fact in the proofs, it is sufficient to say that, by section 738 of 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. People v. Center, 66 Cal. 551, 5 Pac. Rep. 263, and 6 Pac. Rep. 481. A statute of Nebraska, authorizing a similar suit by a plaintiff out of possession, was before this court for consideration in Holland v. Challen, 110 U. S. 15, 3 Sup. Ct. Rep. 495, and the ju

risdiction of a court of equity to grant the relief prayed in such case was sustained. See, also, Reynolds v. Bank, 112 U. S. 405, 411, 5 Sup. Ct. Rep. 213; Chapman v. Brewer, 114 U. S. 158, 170, 171, 5 Sup. Ct. Rep. 799; U. S. v. Wilson, 118 U. S. 86, 89, 6 Sup. Ct. Rep. 991; Frost v. Spitley, 121 U.S. 552, 557, 7 Sup. Ct. Rep. 1129. We see no error in the decree of the court below, and it is accordingly affirmed.

STATE OF CALIFORNIA v. CENTRAL PAC. R. Co. (No. 660.) SAME v. SOUTHERN PAC. R. Co. (No. 661.) SAME v. NORTHERN RY. Co. (No. 662.) SAME v. CALIFORNIA PAC. R. Co. (No. 663.) SAME v. CENTRAL PAC. R. Co. (No. 664.) SAME v. SAME. (No. 1,157.)

(April 30, 1888.)

1. RAILROAD COMPANIES-TAXATION- ASSESSMENT-STEAMERS-CONNECTING LINES STATE AND COUNTY BOARDS.

By the constitution of California two modes of assessment for taxation are prescribed: one, by a state board of equalization; the other, by county boards and local assessors. All property is directed to be assessed in the county, city, etc.. in which it is situated, except that the franchise, roadway, road-bed, rails, and rolling stock of any railroad operated in more than one county are to be assessed by the state board, and apportioned to the several counties, etc. By an act of the legislature the state board is required to include in their assessment steamers engaged in transporting passengers and freights across waters which divide a railroad. This act was held by the supreme court of California, in San Francisco v. Railroad Co., 63 Cal. 469, to be contrary to the constitution; and steam-boats were held to be assessable by the county board and not by the state board. This court, following that decision, and that of Santa Clara v. Railroad Co., 118 U. S. 394, 6 Sup. Ct. Rep. 1132, holds that the assessment of the steamers of a railroad company by the state board is in violation of the constitution of California, and void; and being inseparably blended with the other property assessed, it makes the whole assessment void.

2. SAME-FRANCHISES-REGULATION OF COMMERCE.

The state board of equalization of California having included in their assessment all the franchises of a railroad company, among which were franchises conferred by the United States, of constructing a railroad from the Pacific ocean across the state as well as across the territories of the United States, and of taking toll thereon, held, that the assessment of these franchises was repugnant to the constitution and laws of the United States, and the power given to congress to regulate commerce among the several states.

8. SAME.

Franchises conferred by congress cannot, without its permission, be taxed by the states.

4. SAME.

Congress has authority, in the exercise of its power to regulate commerce among the several states, to construct, or authorize individuals or corporations to construct, railroads across the states and territories of the United States.

(Syllabus by the Court.)

In Error to the Circuit Court of the United States for the Northern District of California.

Geo. A. Johnson, Atty. Gen., Saml. Shellabarger, and J. M. Wilson, for the State of California. Creed Haymond, H. S. Brown, Geo. F. Edmunds, and Wm. M. Ecarts, for the railroads.

BRADLEY, J. These cases are substantially similar to those of Santa Clara Co. v. Railroad Co., and the other cases decided at the same time, and reported in 118 U. S. 394, 6 Sup. Ct. Rep. 1132. It will be unnecessary, therefore, to set out any provisions of the constitution and laws of the United States and of California which are involved in the present cases in common with those referred to. The actions were brought by the state of California in the superior court for the county of San Francisco, and were removed into the circuit court of the United States, where a jury was waived in each case, and the causes were tried by the court, whose findings of fact and conclusions of v.8s.c.-68

law are contained in the respective records. One of the cases (No. 660 on the docket) was brought against the Central Pacific Railroad Company for the recovery of the state and county taxes due upon the assessment of the company's property made by the state board of equalization for the year 1883; said assessment being $18,000,000, and the taxes amounting to $276,865.10, 60 per cent. of which was tendered and paid without prejudice to either party after the suit was brought. Another case (No. 1,157) is an action against the same company for the taxes of 1884, due upon a like assessment of $24,000,000. A third, (No. 664,) against the same company, is for the taxes of 1884, upon an assessment of $22,000,000. No. 661 is a similar action against the Southern Pacific Railroad Company for the taxes of 1883. No. 662 is a similar action against the Northern Railway Company for the taxes of 1883. No. 663 is a similar action against the California Pacific Railroad Company for the taxes of 1883. Tender and payment of 60 per cent. of the taxes were made in all the cases except 1,157, in which the amount tendered and paid was 50 per cent. Similar defenses were set up in these cases as in the cases reported in 118 U. S., supra. It was claimed, as in those cases, that in making the assessments no deduction was made for the mortgages on the companies' property, while such deduction was made on the property of other citizens, by assessing to the mortgagees the amount of the mortgages as an interest in real estate; thus discriminating against the company, and denying to it the equal protection of the laws, contrary to the fourteenth amendment of the constitution. It was also alleged, in defense, that the board of equalization included in the assessments a valuation of rights, franchises, and property which they had no authority to assess; as, for example, franchises granted to the companies by the United States, and ferry-boats, fences, and other property subject to be assessed by the local county boards, and not by the state board; and that the assessments were for aggregate amounts, not showing on their face what part of the valuation represented the property illegally included therein,-thus rendering the entire assessment in each case void. It was on this latter ground that the judgments for the defendants in the former cases were affirmed. If these defenses, or either of them, are supported by the facts, it is unnecessary for us to decide the question raised under the fourteenth amendment of the constitution. The questions arising under that amendment are so numerous and embarrassing, and require such careful scrutiny and consideration, that great caution is required in meeting and disposing of them. By proceeding step by step, and only deciding what it is necessary to decide, light will gradually open upon the whole subject, and lead the way to a satisfactory solution of the problems that belong to it. We prefer not to anticipate these problems when they are not necessarily involved.

The ground on which it is alleged that the assessments in question were made to include property which the state board had no authority to assess, is to be found in article 13, §§ 9 and 10, of the state constitution. Those sections are as follows: "Sec. 9. A state board of equalization, consisting of one member from each congressional district in this state, shall be elected by the qualified electors of their respective districts at the general election to be held in the year one thousand eight hundred and seventy-nine, whose term of office, after those first elected, shall be four years, whose duty it shall be to equalize the valuation of the taxable property in the several counties in the state for the purposes of taxation. The comptroller of state shall be ex officio a member of the board. The boards of supervisors of the several counties of the state shall constitute boards of equalization for their respective counties, whose duty it shall be to equalize the valuation of the taxable property in the county for the purpose of taxation: provided, such state and county boards of equalization are hereby authorized and empowered, under such rules of notice as the county boards may prescribe as to the county assessments, and under such rules of notice as the state board may prescribe; as to the ac