On the 13th of May, 1861, the Legislature of California passed
an act which provides for the reclamation and sale of the "swamp
and overflowed lands" of the state. The twenty-seventh section
declares that the provisions of the act shall "apply equally to all
salt marsh or tide lands in the state as to swamp and
overflowed." On the next day -- the 14th of May -- the same
legislature passed another act ratifying and confirming the sales
of all
marsh and tide lands belonging to the state, which
bad been made according to the provisions of any acts of the
legislature for the sale of "swamp and overflowed lands," and
declaring that
"any of said marsh and tide lands that remained unsold might be
purchased under the provisions of the laws then in force for the
sale of swamp and overflowed lands,
provided no marsh or
tide lands within five miles of the City of San Francisco &c.,
should be sold or purchased by authority of this act."
On this case,
Held that after the passage of the second act there was
no authority for the sale or purchase of salt marsh or tide lands
within five miles of the City of San Francisco.
This was an ejectment in the Circuit Court of the United States
for the District of California to recover a lot of land situate on
the margin of the bay of San Francisco,
within five miles of
the city, below ordinary high water mark, and which contained
about forty acres of land under water, but which could be easily
reclaimed, and, by the natural growth of the city, would soon
become a part of it. The plaintiff claimed title under a
certificate of purchase from the state, dated 23
Page 72 U. S. 792
February, 1864, and which purported to have been issued by the
register of the land office under two acts of the legislature,
passed April 21, 1858, and May 13, 1861.
The question in the case turned upon the power of the register
to grant, or, in other words, on the authority to make the sale of
the premises. The act of 1858 provided for the sale of the
"swamp and overflowed" lands of the state. But the lands
in question, as described in the certificate, were
"salt marsh
and tide lands," not within the class or designation of the
act. The other Act, passed May 13, 1861, was entitled
"An act to provide for the reclamation and segregation of the
swamp and overflowed
and salt marsh and tide lands donated
to the state of California by act of Congress."
It contained an elaborate system for reclaiming "swamp and
overflowed" lands in the state, under the supervision and control
of commissioners. Section twenty-sixth provided for the sale of
these lands, and section twenty-seventh enacted that "the
provisions of this act shall apply equally to all salt marsh or
tide lands in the state, as to swamp and overflowed." If the case
had rested here, the authority to make the sale would seem to have
been undoubted. But the same legislature passed an act the next day
(May 14) which, it was contended, annulled this authority. It was
entitled, "An act to provide for the sale of the marsh and tide
lands of this state," and contained but one section. This
provided:
1. That the sales of all marsh and tide lands belonging to the
state, that had been made according to the provisions of any acts
of the legislature providing for the sale of the "swamp and
overflowed lands," were thereby ratified and confirmed.
2. That any of said marsh and tide lands that remained unsold
might be purchased under the provisions of the laws now in force
providing for the sale of the swamp and overflowed lands,
"
provided no marsh or tide lands within five miles of the
City of San Francisco or the City of Oakland &c., shall be sold
or purchased by authority of
this act," and
provided
further that no sales of lands, either tide or marsh,
Page 72 U. S. 793
which were thereby ratified and confirmed, within five miles of
said cities &c., shall be confirmed by this act, except alcalde
grants.
Judgment having gone for the defendant, the plaintiff brought
the case here on error.
MR. JUSTICE NELSON delivered the opinion of the Court.
What affords some plausibility to the argument, on the part of
the plaintiff, is the peculiarity of the words of the proviso. The
words are, "provided, no marsh or tide lands located within five
miles of the city &c., shall be sold or purchased by
authority of this act." This purchase, as appears from the
certificate, was made in 1864, under the Act of May 13, 1861, and
hence was not within any restriction, as none existed in that act.
The point is a nice one, but, we are inclined to think, not
substantial. It will be observed that the Act of May 14 does not
profess to confer any authority of itself to sell or to purchase
the marsh and tide lands, but provides that any remaining unsold
may be purchased under the provisions of the laws now in force --
that is, under the Act of May 13. It incorporates by the reference
that act into its own provisions as the authority for future sales,
and when the restriction is limited to sales or purchases made
by authority of this act, it necessarily embraces sales
and purchases under the act of May 13, that being the act to which
reference is made, and where the authority may
Page 72 U. S. 794
be found. This construction, which conforms to the fair and
reasonable import of the terms of the act, makes the two statutes
sensible and consistent and avoids the absurdity which must
otherwise be imputed to the legislature of passing two acts in two
consecutive days, each containing an independent authority for the
sale and purchase of these marsh and tide lands -- one with the
five miles restriction, and the other without it.
It may be said that the clause authorizing the sales of these
lands in the Act of May 14 in terms refers only to laws then in
force, providing for the sales of swamp and overflowed lands, and
hence that the reference is to the Act of April 21, 1858. But the
answer is, that the Act of May 13 provides for the sales of lands
of this class, and then, by the 27th section, enacts that the
provisions of the act should apply to salt marsh or tide lands the
same as to those of swamp and overflowed. This section incorporated
these marsh and tide lands into the several provisions of the Act
of May 13, putting them on the same footing as the other class, and
hence the reference in the Act of May 14 fairly embraced them. But
independently of this view, as the Act of May 13 provided for the
sales of swamp and overflowed lands, the reference, by its terms,
is as applicable to that act as to the act of 1858.
The intent of the legislature to prohibit these sales within the
five miles is apparent from another provision of the Act of May 14,
for while it confirmed those that had been made under some
misconstruction of previous laws, it excepted those made within the
five miles, save only alcalde grants.
There is another act of the legislature quite as decisive
against the title of the plaintiff as the one we have examined, and
less involved, passed April 27, 1863. This act provides for the
sales of swamp and overflowed marsh and tide lands belonging to the
state. It fixes the price and time of credit given to the
purchaser, prescribes the oath to be taken by him on the
application, and the duties of the county surveyor in making the
location, also of the surveyor general and register of the land
office. The act provides also for
Page 72 U. S. 795
certificates of purchase and the issuing of the patents, and
section 30 declares: "This act shall not apply to the marsh and
tide lands upon the city front, and within five miles of the City
and County of San Francisco," &c. And section 31 provides that
"all acts and parts of acts in conflict with the provisions of this
act are hereby repealed."
This act adopts a general system for the sale of certain
specified classes of the public lands, and, among others, marsh and
tide lands, and, as we have seen, repeals in express terms all
previous laws inconsistent or in conflict with it. And of course if
any previous law existed authorizing a sale of these lands within
five miles of the City of San Francisco, which the 30th section of
this act prohibits, it must be regarded as repealed.
We need only add, the sale of the lot in question was made after
the passage of this act. There being no authority to sell the land
in question or issue the certificate, it follows that the plaintiff
is without title, and the court below was right in giving judgment
for the defendant.
Judgment affirmed.
MR. JUSTICE FIELD did not sit in the case, or take any part in
its decision.
