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department of the interior and in the local land office in 1857. It is a matter of common knowledge, and is, in fact, sufficiently shown by the record in this case, that the land embraced in this survey, or the greater part thereof, remained unoccupied for many years. When it was discovered that the apparently barren lands in Imperial valley could be rendered exceedingly productive by means of irrigation, an extensive settlement of the valley began. By that time the monuments referred to in the field notes of the survey of 1856 had, to a great extent, been obliterated, and it was difficult, and in many cases impossible, to trace upon the ground the boundaries of the governmental subdivisions as established by the survey. Moved, no doubt, by the knowledge of these conditions, the congress of the United States passed an act, entitled "An act providing for the resurvey of certain townships in San Diego county, California". (The land is within the territory which has, since the passage of the act, been taken from San Diego county to form the new county of Imperial.) By this act, which was approved July 1, 1902, it was enacted "that the secretary of the interior be, and he is hereby authorized to cause to be made a resurvey of the lands of San Diego county, in the state of California, embraced in and consisting of the tier of townships 13, 14, 15 and 16 south, of range 11, 12, 13, 14, 15 and 16 east, and the fractional township 17 south, of range 15 and 16 east, all of San Bernardino base and meridian ; provided, that nothing herein contained shall be so construed as to impair the present bona fide claim of any actual occupant of any of said lands to the lands so occupied".

Pursuant to this law resurveys of the townships described were ordered. Among others, instructions for surveying township 17 south, range 15 east, were issued to Legrand Friel, U. S. Deputy Surveyor. Mr. Friel made his survey, and filed his returns with the surveyor general. They were transmitted to the general land office for its approval. Such approval was refused for reasons stated in a decision of the commissioner of the general land office, who returned the papers to the surveyor general for California with directions to except from approval the establishment of the alleged school sections, the commissioner stating that the 16th and 36th sections in each of the townships involved would be "platted and located in conformity with the claim lines of adjacent sections as shown by the resurvey". A corrected survey and plat were made, and were duly approved. The record contains a decision of the commissioner, under date of November 4, 1910, adjudging that "Tract 159" is a school section represented upon the plat of resurvey, i. e., section 16 of township 17. At the trial the defendants admitted that they were occupying "the tract of land on that map as section 16 by the new survey"-the land "marked as Tract 159 on the plat".

It should be added that at the date of the approval of the act providing for a resurvey (July 1, 1902), the defendants had not gone into possession of the land, and had taken no steps toward acquiring any title thereto. They were not, therefore, within the scope of the proviso with which the enactment ends.

[1] On the foregoing evidence, none of which is disputed, it seems clear that the plaintiffs made out a complete case of ownership and right of possession of the land in controversy, and that the verdict of the jury against their claim is unsupported.

The act of July 1, 1902, authorized the secretary of the interior to cause to be made a resurvey of certain townships. As we have already pointed out, the lines of the original survey could not with certainty be traced upon the ground. The purpose of the congressional enactment undoubtedly was that the new survey directed to be made should supersede the old one which had be come unavailable. It was intended that the dispositions of the public lands within the area affected should be regulated by the new survey, which, in theory at least, would reproduce the exact corners and lines of the old one. The congress recognized, however, that some of these lands were held by occupants who claimed or might claim vested rights. Such claims were expressly saved from the effect of the act by the proviso at the end. But the very fact that this proviso was inserted lends added force to the view that, as to all persons not then in occupancy of any of the lands, the resurvey was intended to be binding. [2] We see no constitutional objection to such an enactment. The public lands are under the exclusive control of congress, until title or a right to acquire title has, pursuant to some law, vested in some person or body corporate other than the United States. A person who claims no right in such public lands certainly cannot object to the act of congress in abandoning a survey already made, and substituting another in its place. This would be true even if the monuments of the original survey were readily discoverable. The power of congress to provide for a resurvey is much clearer where, as here, it has become impossible or exceedingly difficult to make a correct application of the original survey.

[3] But, say the respondents, the 16th and 36th sections were identified by the survey of 1856, and, upon the approval of that survey, they at once passed to the state of California. (Higgins v. Houghton, 25 Cal. 252; Sherman v. Buick, 45 Cal. 656.) They then, it is argued, ceased to be public lands, and the power of the federal government to exercise any control over them, by survey or othe vise, ceased. But the location of these sections was necessarily dependent upon the location of the adjoining sections of public land still undisposed of. In delimiting the boundaries of the adjoining sections, it was necessary that the boundaries of the school sections should be marked out and deter mined. Furthermore, this contention, it seems to us, can hardly be urged against the appellants who are accepting the resurvey as accurately describing the land owned by them. Such appellants might, perhaps, be in a position to attack the resurvey on the ground that its effect was to take from them land to which they already had title. But they are the only parties entitled to make this point. When they rely upon the resurvey as an accurate designation of the school section owned by them, the respondents, who do not claim under the state, and who were not making a claim of any kind when the statute authorizing the survey was

passed, cannot object. If, according to the survey of 1856, the land in controversy was the sixteenth section, the appellants have a perfect title to it, and the respondents clearly have neither title nor right of possession. If it was not school land, it remained public land of the United States, and subject to the jurisdiction of congress. In that aspect, the resurvey was unquestionably authorized, and the respondents can have no valid claim to land which was identified by the resurvey as school land which belonged to the state or its grantees and was accordingly not open to entry.

[4] The authorities cited by respondents to the effect that the land department has no authority by means of a resurvey or otherwise to affect the title to land after such title has passed from the government to its grantees (Moore v. Robbins, 96 U. S. 530; Kean v. Roby (Ind.), 42 N. E. 1012; Murphy v. Kirwan, 103 Fed. 104) have no application to the facts of this case. none of these cases had there been congressional authorization to make a resurvey which should take the place (so far as claims to be thereafter initiated were concerned) of an existing survey.


If the act of 1902 has been rightly interpreted by us, there is no occasion to consider the argument of respondents to the effect that the decision of the land department of the government fixing the location of section 16 was erroneous, and that said section was placed by the new survey at a different place from that occupied by section 16 under the survey of 1856. The new survey superseded the old one. Parties going upon the land after the passage of the act, and with constructive knowledge of the fact that such survey was to be made, took the chance that such survey might establish that the land occupied by them was a school section and not subject to entry as vacant lands of the United States.

The foregoing views make it unnecessary to consider specifically the various points made by appellants in attacking rulings on evidence and instructions to the jury. These questions can readily be solved by the application of the principles outlined in this opinion. Nor need we discuss the claim that the court erred in overruling plaintiffs' challenge to a juror. The same situation will not, in all likelihood, be presented on a new trial.

The judgment is reversed.

We concur:




L. A. No. 3456. In Bank. March 13, 1915.

J. C. HADACHECK, Plaintiff and Appellant, v. GEORGE ALEXANDER, Mayor of the City of Los Angeles; A. GALLOWAY, Chief of Police of the City of Los Angeles; LESLIE R. HEWITT, City Attorney of the City of Los Angeles; and W. J. WASHBURN, MILES GREGORY, J. J. ANDREWS, E. L. O'BRIEN, MARTIN BETKOUSKI, GEORGE WILLIAMS and R. M. LUSK, constituting the City Council of the City of Los Angeles, Defendants and Respondents.

[1] MUNICIPAL CORPORATIONS-BRICK YARD ORDINANCE CONDITIONS AND OPERATION-IGNORANCE OF COUNCILMAN-INSUFFICIENT GROUND FOR SETTING ASIDE.-A municipal ordinance prohibiting the manufacture of brick within a described district of the municipality will not be declared invalid because of the ignorance of a member of the city council, who voted for the enactment, of the actual conditions existing and of the operation of the ordinance upon those to be affected thereby, as it is the general, if not the universal, rule that the motive of the legislator may not be inquired into, but his conduct is to be judged by the expression which it takes in the enactment adopted.

Appeal from the Superior Court of Los Angeles County-Frank G. Finlayson, Judge.

For Appellant G. C. De Garmo, J. W. McKinley, W. R. Millar of Counsel.

For Respondents-Albert Lee Stephens, City Attorney; John W. Shenk, ex-City Attorney; Charles H. Hass, ex-Deputy City Attorney.


This is an action in which plaintiff sought a judgment in injunction restraining the defendants from putting into operation a certain ordinance of the city of Los Angeles which, for convenience, may be called the "Brick Yard Ordinance". He failed to secure the judgment he sought and prosecutes this appeal from the adverse judgment entered against him.

Under writ of habeas corpus sued out by this appellant the general question of the validity of the ordinance was considered and decided against him. (Ex parte Hadacheck, on Habeas Corpus, 45 Cal. Dec. 92.) It is contended, however, that the decision on habeas corpus is not conclusive, for the reason that upon this appeal from a civil judgment evidentiary matters may be considered-matters not open for consideration under the writ, and that giving due consideration to those matters it will be determined that this ordinance is unreasonable and oppressive and therefore void. The evidence here referred to is quoted at length in the brief and consists, for the most part, of the declarations of one of the members of the city council of the city of Los Angeles who voted for the enactment of the ordinance in question. It is contended that the evidence of this councilman shows an ignorance of the actual conditions existing-an ignorance of the very boundaries of the district in which the maintenance of brick making was prohibited—an ignorance of operation of the ordinance upon all those to be affected by its terms and similarly situated

to this appellant, sufficient to invalidate the ordinance, the contention herein being that the testimony of this councilman leads to the conviction that, at the instigation of some individuals, an ill-digested ordinance was hastily prepared and passed, to meet their complaints. [1] It is, however, the general, if not the universal, rule that the motive of the legislator may not be inquired into. His conduct is to be judged by the expression which it takes in the enactment adopted, and, as was said in Ex parte Hadacheck supra, page 594: "Whether or not this trade, however strictly the manner of its conduct may be regulated, can be pursued at all in a residential district without causing undue annoyance to persons living in the district, is certainly a question upon which reasonable minds may differ. If this be so, the propriety of entirely prohibiting the occupation within such districts is one for the legislative determination. The courts will not substitute their judgment upon this issue for that of the legislative body." Wherefore the judgment appealed from is affirmed.

Crim. No. 1870. In Bank.

March 13, 1915.

In the matter of the Application of W. J. STANTON, for a writ of Habeas Corpus.

[1] STATE PRISON DIRECTORS-TRANSACTIONS OF BOARD-INFORMALITY OF PROCEDURE.-The state board of prison directors is not required in its proceedings and orders to proceed with the formaliity required of the courts, as its functions are primarily administrative; the essential thing is the existence of the jurisdictional facts and not the recital of their existence in the records of the board.

[2] ID. MISCONDUCT OF PRISONER-FORFEITURE OF CREDITSHABEAS CORPUS-SUFFICIENCY OF EVIDENCE NOT REVIEWABLE.-The courts will not, on habeas corpus, consider the sufficiency of the evidence on which the board acted in declaring the credits of a prisoner forfeited for misconduct, or hold their proceedings invalid, if the offense charged is one which can fairly be considered as embraced within the provision of the statute applying to the forfeiture of credits.

[3] ID.-VIOLATION OF CONDITIONS OF PAROLE FORFEITURE OF CREDITS-AUTHORIZED PROCEDURE.-A forfeiture of credits for offenses committed by convicts while at liberty on parole, as well as for those committed by them while actually confined in the prison enclosure, is authorized by the prisoners' credits statute, as the parole law expressly declares that a prisoner out on parole is nevertheless "in the legal custody and under the control of the state board of prison directors", and the rules which the board may make for his conduct while outside are "the rules and regulations of the prison" within the meaning of that phrase as used in the prisoners' credits statute.

Application for writ of habeas corpus prayed to be directed against James A. Johnson, Warden, State Prison, San Quentin, Marin county.

For Petitioner-Arthur L. Shannon.

For Respondent-U. S. Webb, Attorney General, and Robert W. Harrison, Deputy Attorney General.

The petitioner was committed to the state prison at San

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