Rousset v. Reay

60 Cal. 328, 1882 Cal. LEXIS 460

• Court: California Supreme Court
• Decided: March 29, 1882
• Docket: No. 6,981
• Status: Published

Opinion

Ross, J.:

The lands in controversy in this action, and in a number of other actions now pending before us, form a part of what was known as the “ outside lands” of the City and County of San Francisco. After the passage of the Act of Congress of March 8, 1866, in relation to those lands, the Board of Supervisors passed, among other orders, Order Mo. 866, by which provision was made for the presentation of petitions by the respective claimants, the making of proofs, the making and publication of awards of the land, to be followed by deeds by the Mayor. It is contended on behalf of the appellants that this Order—Mo. 866—was never authorized or ratified by the Legislature, and that, as a result, the deeds issued by the Mayor pursuant to its provisions were unauthorized and void.

In effect Order 866 was ratified and re-enacted by the Act of the Legislature approved March 14, 1870. (Statutes 1869-70, p. 353.) By the first, second, third, fourth and fifth sections of that Act the order was substantially re-enacted, and by the sixth section the Legislature repealed all Orders and parts of Orders of the Board of Supervisors conflicting with Order 866, accompanying the repeal, however, with the proviso that such repeal should not invalidate any of the proceedings instituted under the Order of which Order 866 was amendatory, and expressly authorized such proceedings to be continued under the provisions of said Order 866. This was in effect a legislative ratification of the provisions of Order 866, for it can not be held that the Legislature intended to authorize any proceedings to be conducted under an unauthorized or invalid Order. Besides the whole scope of the Act of March 14,1870, manifests the intent on the part of the Legislature to ratify and continue the provisions of Order 866. The intent is manifested, in the first place, by the repeal of all Orders and parts of Orders in conflict with it, with the saving clause that all proceedings instituted under the Order of which it was amendatory should be unaffected by the repeal and be continued under its provisions ; and, in the second place, by the re-enactment in statutory form of the provisions of the said Order.

Our conclusion is, that the deeds under which the plaintiff claims were not unauthorized, and that they were properly admitted in evidence. (McCreery v. Sawyer, 52 Cal. 257; Le Roy v. Cunningham, 44 id. 609; Kraft v. Driscoll, 1 P. O. L. J. 24.) We have looked into the evidence, and cannot say the findings of the Court of possession of the premises by the appellants at the time of the commencement of the action, was not justified. As respects the finding in relation to the statute of limitations, it is sufficient to say that if there was a plea of the statute, the finding covered it.

Judgment and order affirmed.

McKinstry and McKee, JJ., concurred.

Paul Rousset et al. v. J. W. Reay et al., No. 6984; Theodore Lieberman v. J. W. Reay et al., No. 6983 ; Simon Held v. J. W. Reay et al., No. 6984; William Thurmauer v. J. W. Reay et al., No. 6985; E. S. Freeman v. J. W. Reay et al., No. 6986; William J. Adams v. J. W. Reay et al., No. 6987; J. M. Forrest v. J. W. Reay et al., No. 6988; Patrick F. Butler v. J. W. Reay et al., No. 7282; presenting the same points and argued by the same counsel as Rousset v. Reay (Ho. 6891) supra, were affirmed on the authority of that case.