By the Qowt
Flandrau J.
This action was tried and decided before a referee to whom it bad been committed to bear and determine tbe whole issues therein. The first objection urged by the Appellants is that the referee bad no power under tbe State Constitution to exercise judicial powers, tbe language of that instrument being as follows : — “ Tbe judicial “ power of tbe State shall be vested in a Supreme Court, Dis- “ trict Courts, Courts of Probate, Justices of tbe Peace, and “ such other Courts inferior to the Supreme Court, as tbe Leg- “ islature may from time to time establish by a two-third “ vote.” Constitution, Article 6, Section 1. The language of the Constitution is, for the purpose of this question, identical with that employed in the organic act of the Territory which was our Constitution before we entered tbe Federal Union as a State. Section 9 of that act is as follows: “ The judicial power of said Territory shall be vested in a Supreme Court, District-Courts, Probate Courts, and in Justices of the Peace,” &c. Under the organic act, the statute concerning referees was passed in the year 1851, and has been tbe law of the Territory and the State ever since, without any question of its validity having been made. Oornyp. Stats. 566. Probably there is no act upon the statute book under which more interests have been affected, more rights passed, and property involved, than the statute authorizing the appointment of referees; under this pressure of'great.interests, this Court would hesitate long [87]*87before it would disturb a statute, unless fully convinced that it was in violation of some substantial provision of the fundamental law, and the very fact that it has so long been acquiesced in by the whole bar of the State, and acted upon without question, would lead us to doubt our own convictions, should an investigation strengthen the point made against its validity.
A referee under our statute is! a person appointed by the Court to perform certain offices in the progress of a cause depending in the Court of his appointment, and it may be to try the whole issue. Comp. Stats. 563. The intention of the statute is clearly for the convenience of the parties, and the Court, in affording the former a tribunal of their own selection, desirable for purposes of expedition and economy, and in relieving the latter of a vast amount of business which its time and strength are illy competent to entertain and dispose of.
¥e will now see if the establishment of' this officer by the statute to aid the Courts in their labors, is a diversion of the judicial power of the State from its legitimate channels, and a location of it in unauthorized hands. In the first place there is no such officer as a referee permanently' attached to a Court. Again, there can be no referee created until there is a cause pending in one of the constitutional Courts, and after his appointment, even if it be to try the whole issue in the cause, it does not take the case out of the Court, but merely calls this officer into the Court to act in the cause in a certain maimer, at all times in strict subordination to the Court itself. During the trial of the issue before the referee the cause is as much a cause pending in the original Court as if it was on trial in term before a Jury; and every act done by the referee, is in contemplation of law, as much an act of the Court as if done by the Judge in open term time. The Court speaks and operates through the referee, its subordinate officer. The referee exerts no power jproprio vigore. Without the Court he could have no existence; without the Court he could not act after his creation; and without confirmation and adoption by the Court, his acts have no force or validity whatever. Nothing-can originate before a referee, and nothing can terminate with or by the decision of a referee. The Court acquires the juris[88]*88diction, and tbe Court renders tbe judgment upon tbe controversy, therefore tbe whole exercise of tbe judicial power is by the Court, tbe referee acting only in an intermediate capacity as an auxiliary to tbe Court in tbe ascertainment of certain facts and law necessary to its enlightenment in giving tbe proper decree or judgment.
If tbe Legislature should attempt to establish independent tribunals and vest them with judicial powers, tbe constitutional formalities would have to be complied with to give them validity ; but in merely supplying tbe Courts already established with these necessary and ■ convenient agents or officers, we see no violation of tbe Constitution whatever.
Tbe respondents object to tbe sufficiency of tbe complaint because they allege that at tbe time tbe power of attorney was given to Huff, Smith did not own, and could not have owned any land in Fillmore county, tbe whole of such lands being in tbe United States. The power of attorney authorizes Huff to “ enter into and take possession of all such lands and tene- “ ments, hereditaments, and real estate whatever in tbe county “ of Fillmore and Territory of Minnesota, to, or in which I “ am, or may be in any way entitled or interested,” &c.
This Court will take notice that tbe treaty under which the lands at that time composing Fillmore county were acquired from tbe Indians, was ratified by tbe United States on tbe 24th day of February, 1853, and we cannot ignore tbe fact that tbe treaty was made long anterior to that date, and that many people bad entered upon tbe lands after tbe treaty, and extensive and valuable interests bad grown up thereon, and that tbe Legislature bad recognized and made provision for tbe protection of such interests; and that a large proportion of tbe titles of tbe State have grown out of the interests then acquired.
As early as 1851, tbe Territorial Legislature passed an act for tbe protection of settlers upon tbe public lands of tbe United States where settlement was not expressly prohibited by tbe general government or some department thereof, and allowed an action to be maintained for injuries to such a possession of lands, and to recover tbe same. Comp. Stats., 654. We are cited to the act of Congress of March 3, 1807, (U.S. S[89]*89tats. at large, Vol. 2. p. 445,) to show that tbe settlement or occupation of lands of tbe United States' of tbis description was unauthorized and contrary to law. Whether tbis act embraces acquisitions of territory from Indian tribes is very doubtful; but whether it does or not, it is quite clear that the legislation of Congress subsequently made upon the subject of the settlement of the public lands by individuals with reference to their future acquisition has entirely annulled the effect and obligation of the act of 1807. The pre-emption laws for a long time restricted settlement to the surveyed lands ; but the difficulties of such a limitation in a country where the settlement rapidly outrun the tardy movement of the government surveys, soon forced themselves upon the notice of Congress and resulted in the extension of the rights of preemption to all the lands in this State whether surveyed or not, by the act of August 4th, 1854. U. S. Stats. at large, Vol, 10, p. 576.
This act has always been construed, so far as we have been able to ascertain, not only to permit rights to be acquired upon the unsurveyed lands after its passage, but also to recognize such as had previously accrued.
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By the Qowt
Flandrau J.
This action was tried and decided before a referee to whom it bad been committed to bear and determine tbe whole issues therein. The first objection urged by the Appellants is that the referee bad no power under tbe State Constitution to exercise judicial powers, tbe language of that instrument being as follows : — “ Tbe judicial “ power of tbe State shall be vested in a Supreme Court, Dis- “ trict Courts, Courts of Probate, Justices of tbe Peace, and “ such other Courts inferior to the Supreme Court, as tbe Leg- “ islature may from time to time establish by a two-third “ vote.” Constitution, Article 6, Section 1. The language of the Constitution is, for the purpose of this question, identical with that employed in the organic act of the Territory which was our Constitution before we entered tbe Federal Union as a State. Section 9 of that act is as follows: “ The judicial power of said Territory shall be vested in a Supreme Court, District-Courts, Probate Courts, and in Justices of the Peace,” &c. Under the organic act, the statute concerning referees was passed in the year 1851, and has been tbe law of the Territory and the State ever since, without any question of its validity having been made. Oornyp. Stats. 566. Probably there is no act upon the statute book under which more interests have been affected, more rights passed, and property involved, than the statute authorizing the appointment of referees; under this pressure of'great.interests, this Court would hesitate long [87]*87before it would disturb a statute, unless fully convinced that it was in violation of some substantial provision of the fundamental law, and the very fact that it has so long been acquiesced in by the whole bar of the State, and acted upon without question, would lead us to doubt our own convictions, should an investigation strengthen the point made against its validity.
A referee under our statute is! a person appointed by the Court to perform certain offices in the progress of a cause depending in the Court of his appointment, and it may be to try the whole issue. Comp. Stats. 563. The intention of the statute is clearly for the convenience of the parties, and the Court, in affording the former a tribunal of their own selection, desirable for purposes of expedition and economy, and in relieving the latter of a vast amount of business which its time and strength are illy competent to entertain and dispose of.
¥e will now see if the establishment of' this officer by the statute to aid the Courts in their labors, is a diversion of the judicial power of the State from its legitimate channels, and a location of it in unauthorized hands. In the first place there is no such officer as a referee permanently' attached to a Court. Again, there can be no referee created until there is a cause pending in one of the constitutional Courts, and after his appointment, even if it be to try the whole issue in the cause, it does not take the case out of the Court, but merely calls this officer into the Court to act in the cause in a certain maimer, at all times in strict subordination to the Court itself. During the trial of the issue before the referee the cause is as much a cause pending in the original Court as if it was on trial in term before a Jury; and every act done by the referee, is in contemplation of law, as much an act of the Court as if done by the Judge in open term time. The Court speaks and operates through the referee, its subordinate officer. The referee exerts no power jproprio vigore. Without the Court he could have no existence; without the Court he could not act after his creation; and without confirmation and adoption by the Court, his acts have no force or validity whatever. Nothing-can originate before a referee, and nothing can terminate with or by the decision of a referee. The Court acquires the juris[88]*88diction, and tbe Court renders tbe judgment upon tbe controversy, therefore tbe whole exercise of tbe judicial power is by the Court, tbe referee acting only in an intermediate capacity as an auxiliary to tbe Court in tbe ascertainment of certain facts and law necessary to its enlightenment in giving tbe proper decree or judgment.
If tbe Legislature should attempt to establish independent tribunals and vest them with judicial powers, tbe constitutional formalities would have to be complied with to give them validity ; but in merely supplying tbe Courts already established with these necessary and ■ convenient agents or officers, we see no violation of tbe Constitution whatever.
Tbe respondents object to tbe sufficiency of tbe complaint because they allege that at tbe time tbe power of attorney was given to Huff, Smith did not own, and could not have owned any land in Fillmore county, tbe whole of such lands being in tbe United States. The power of attorney authorizes Huff to “ enter into and take possession of all such lands and tene- “ ments, hereditaments, and real estate whatever in tbe county “ of Fillmore and Territory of Minnesota, to, or in which I “ am, or may be in any way entitled or interested,” &c.
This Court will take notice that tbe treaty under which the lands at that time composing Fillmore county were acquired from tbe Indians, was ratified by tbe United States on tbe 24th day of February, 1853, and we cannot ignore tbe fact that tbe treaty was made long anterior to that date, and that many people bad entered upon tbe lands after tbe treaty, and extensive and valuable interests bad grown up thereon, and that tbe Legislature bad recognized and made provision for tbe protection of such interests; and that a large proportion of tbe titles of tbe State have grown out of the interests then acquired.
As early as 1851, tbe Territorial Legislature passed an act for tbe protection of settlers upon tbe public lands of tbe United States where settlement was not expressly prohibited by tbe general government or some department thereof, and allowed an action to be maintained for injuries to such a possession of lands, and to recover tbe same. Comp. Stats., 654. We are cited to the act of Congress of March 3, 1807, (U.S. S[89]*89tats. at large, Vol. 2. p. 445,) to show that tbe settlement or occupation of lands of tbe United States' of tbis description was unauthorized and contrary to law. Whether tbis act embraces acquisitions of territory from Indian tribes is very doubtful; but whether it does or not, it is quite clear that the legislation of Congress subsequently made upon the subject of the settlement of the public lands by individuals with reference to their future acquisition has entirely annulled the effect and obligation of the act of 1807. The pre-emption laws for a long time restricted settlement to the surveyed lands ; but the difficulties of such a limitation in a country where the settlement rapidly outrun the tardy movement of the government surveys, soon forced themselves upon the notice of Congress and resulted in the extension of the rights of preemption to all the lands in this State whether surveyed or not, by the act of August 4th, 1854. U. S. Stats. at large, Vol, 10, p. 576.
This act has always been construed, so far as we have been able to ascertain, not only to permit rights to be acquired upon the unsurveyed lands after its passage, but also to recognize such as had previously accrued. It is clearly such an adoption of such acts by a change of policy, as will effectually prevent a party from defeating an obligation growing out of such rights, on the ground that it was against public policy and public law. The act of i.Congress of May 28, 1844, under which towns or municipal pre-emptions are settled and entered, goes hand in hand with the agricultural pre-emption laws, and the extention of the pre-emption laws to the unsur-veyed lands in Minnesota by the act of August 4th, 1854, carried with it the right to acquire rights upon such lands for municipal, manufacturing and other purposes recognized by the pre-emption laws. See pre-emption la/ws of 1841.
We have held that inchoate interests in town sites by parties occupying them, wei*e such interests as were included within the recording acts, and that conveyances of such interests duly recorded were notice to subsequent purchasers. Davis & Barnes vs. Murphy, 3 Minn. R., 119. On page 125, the Court says in speaking of such interests, “.This is certainly an interest in land, inchoate it is true, yet nevertheless [90]*90“ valuable; and it is authorized by law, and laws are made “ to provide means of perfecting it into a title in fee. It may u be defended against all encroachments from persons not “ having a paramount right. It is more than a mere right to “ the possession because it contains the germ which will ex- “ pand and ripen into a perfect title.”
We have also held that settlements under the act of May 23d, 1844, may be otherwise than in person, and there need be no cultivation of the soil. Indeed I see no reason why the occupation of any land in’a town site may not be by a person residing withoututhe State, if he keeps a representative fairly on the land, by improvement, tenant, or agent. Leech vs. Rauch, 3 Minn. R., 448.
In view of the law then, as we understand it, Mr. Smith may have had very valuable interests in real estate in the county of Eillmore on the 3d day of October, 1853, the day on which he executed the power of attorney to Mr. Huff, notwithstanding the land was unsurveyed, and he resided in .the State of Illinois.
In passing to a consideration of the manner in which the power was executed by Mr. Huff, we will first examine the power conferred upon him. I cannot see how more forcible or appropriate words could have been selected to authorize him to sell and convey by deed of warranty any interest in real estate that Mr. Smith may have had within the prescribed limits. The words are, “ to grant, bargain and sell the same, “ or any part or parcel thereof, for such sum or price, and on “ such terms as to him shall seem meet, and for me and in my “ name to make, execute, acknowledge and deliver good and “ sufficient deeds and conveyances for the same, either with or “ without covenants, and warranty.”
Could he sell for anything but cash ? could he sell for anything but money ? could he^sell an undivided interest ? These questions meet us in the outset, as the attorney sold on time, and only part of the consideration was in money, and he sold an undivided interest.
I think it is clear that the words “ and on such terms as to him shall seem meet” following the words "immediately “ for such sum or price,” must refer to such previous words, and [91]*91mean tbe terms upon whidrthe “ sum or price” is to be paid. In tbe case of Leroy vs. Beard, 8 How. Sup. Ct.R. U. S., 466, Tbe Court in construing tbe word “ terms” as used in a power of attorney similar in all respects to tbe one under consideration, use tliis language. “ Terms,” is an expression applicable to tbe “ conveyances and covenants to be given, as much as to tbe amount of, and tbe time of paying tbe consideration,” and this case bolds that tbe word “ terms” in a power of attorney authorized a covenant of warranty in a deed made under tbe power. "We feel clear that Huff was fully empowered to sell on reasonable credit.
Tbe authority to sell and convey on such terms as ttto tbe agent should seem meet carried with it a power to receive tbe purchase money, so that payment of tbe note to fIiuff was a good payment to bis principal. Story on Agency, Sec. 58. Peck vs. Harriot 6 Serg. & Rawle, 149.
Tbe consideration for which tbe interest was sold, was six hundred dollars, and tbe agreement that tbe purchaser should “ open and keep a lumber yard in the village of Winona, Minnesota a§ soon as practicable;” and tbe question is whether tbe attorney bad any right to include anything but money. “ The extent of tbe power is to be settled by tbe language employed in the whole instrument (4 Moore 448,) aided by tbe situation of tbe parties and of tbe property, the usages of tbe country on such subjects, the acts of tbe parties themselves, and any other circumstance having a legal bearing and throwing light on tbe question.” LeRoy vs. Beard, 8 How U.S. Sup. Ct. R. 466.
Tbe record discloses that tbe claim bad been "made for tbe purpose of a town site. The complaint says “ That some time thereafter, (after 1851) and before the execntion of tbe aforesaid bond, (contract in suit) tbe said Johnson and tbe said Or-rin Smith, laid out and platted said land into lots and blocks,, and duly filed and recorded tbe same,” &c. Tbe parties were-then engaged in tbe speculation of enlarging tbe town of Wi-nona, by making additions thereto, as it appears that after-wards this land was entered under tbe town act as part of the-town of Winona. Under these circumstances tbe power was-conferred upon Mr. Huff. Tbe prime object clearly was to-[92]*92sell the land in a manner that would realize tbe most money. Not being on the ground in .person, Mr. Smith desired to have a representative "there clothed with full power to act for him, and seize all the varying chances that those active times might offer, to dispose of on the most advantageous terms, his interest in the town. Eor this purpose he says his attorney may sell and convey, on such terms as to him may seem meet, ask, demand, collect, recover and receive all sums of money that should become due to him for such sales, and have full power and authority to do, and to perform pall and [every act and thing whatsoever requisite and necessary to be done in and about the premises as fully to all intents and purposes, as he might or could do if personally present.
This language is very broad, and if we confine it as we must to those matters “requisite and necessary” to carry out the main object of the power, which is the advantageous sale of the land, still we would have to ignore the promptings of our own senses, and our knowledge of the manner of transacting such business, if we should hold that the provision for establishing a lumber yard in the town was without the spirit and meaning of the power. There is nothing more common than the insertion, in conveyances of land, or interests in town enterprises, of a provision that the purchaser shall improve the land sold, or adjacent lands, to enhance the value of the remaining lands of the grantor, and render them more saleable. The stipulation for the establishment of a lumber yard in a young and growing town was one evidently designed to raise the value of the remaining lands of the seller; and the fact that it might and would at the same time increase the value of the lands owned by the agent Huff or any other citizen of that place, can in no' manner affect the question of its value to the grantor Smith, unless it is shown to operate so unjustly as to be a fraud upon the rights of Mr. Smith. ¥e think the consideration for which the interest was sold was fully justified by the power; its inadequacy is not raised.
The same remarks which have just been made concerning the aids a Court may use to throw light on the instrument it is called upon to interpret, are applicable to the question whether the power authorized the sale of an undivided inter[93]*93est. In sucb cases the nature of the subject contemplated in the power of attorney to be bought or sold, will very materially affect the execution of the power. Eor instance, if the power should authorize the agent to buy one hundred bales of cotton for his principal, and he should purchase fifty from one man, and fifty from another' at different times, or if he should buy fifty only, being unable to purchase any more at any price, or at the price limited, the power would be well executed as a general rule. Story on Agency, Sec. 110. Livermore on Agency, Chap. 5, Sec. 1, p. 99-100. So if A should consign a cargo of goods to B to sell; there can be no doubt that B. might sell different parcels thereof to different persons, and at different times, and the sales would be held, by implication, fairly within the scope of the authority. Story on Agency, Sec. 180. But if the authority was to buy or sell a ship, or a plantation, it would not be 'well executed by the purchase or sale of a part of either. Story on Agency, Sections 111, 180. And why would such opposite constructions be placed upon the same words in different instruments ? The answer is, simply because the power in each case must be interpreted with relation to the subject matter it treats of and is to operate upon. Let us now examine the subject matter of the power in this case. The complaint shows that some time between the year 1851 when the claim was made, and the 16th of April, 1855, the date of the execution of the contract in suit, the land was laid out into blocks and lots, and a map made of it and filed and recorded. That at the time the Judge entered the land at the United States Land Office, which was the last of October, 1855, only a few months after the contract to the Plaintiffs had been executed, “ the claim was considered as divided into sixteen shares, of which the said Orrin Smith- claimed to be the owner of four sixteenths, including the one sixteenth which by the terms and conditions of said bond he had agreed to convey to the plaintiff in this action,” &c. Now these allegations, together with the fact that the agent sold one sixteenth of the claim to the plaintiffs, leaves it past any doubt that at the time of the sale, the claim had been divided into these sixteenth parts, and that such division was made or assented to by Smith: be[94]*94cause he had in some way disposed of four of the shares, and claimed the remaining four from the Judge after the entry of the land, one of which four the plaintiff alleges was the one he had previously agreed to sell and convey to him. These facts being fairly disclosed by the complaint, (and for the purposes of this inquiry they must be taken as confessed) it seems to come with a bad grace from Mr. Smith, after placing his property in this peculiar situation, to object, that his agent upon whom he had conferred such ample powers, should make a sale of one of the very divisions or parts into which he had separated it, and had been himself disposing of it. It is but a fair construction to place upon the acts of' the parties, to say that the division of the claim into sixteenth parts was to meet the provision in the power of attorney rallowing the agent to sell “ any part or parcel” of the property. The power was on record for the inspection of the world, and [had in no manner been revoked or annulled ; purchasers therefore had a right to regard it as continuing, and to examine its terms as applied to the lands as they were at the time of the purchase, and not as they were at the date of the power. If any subsequent change in the condition of the lands would affect the powers of the agent, the principal should make a corresponding alteration in the power or revoke it; if he allows it to remain, he willbe bound by any act that is justified by its terms at the time the act is performed.
The complaint is good, and there must be a new trial.
Emmett, Ohief Justice, dissents.
Note. A motion for a re-argument of this case was denied at the July Term, 1861.