People v. Cal. Fish Co.

The defendants appeal from the judgment and from an order denying their motion for a new trial.

This is one of a series of nine cases begun by the state of California to quiet its title to certain lands embraced in state patents executed to the predecessors in interest of the defendants, under the general statutes authorizing the sale of swamp and overflowed, salt-marsh and tide lands. The lands lie in and adjacent to the bay of San Pedro, also known as Wilmington Bay. The other cases are numbered, respectively, on our Los Angeles register, as No. 3056, No. 3057, No. 3058, No. 3059, No. 3061, No. 3077, No. 3078, and No. 3079. All of these cases were submitted at the same time. The tracts involved in the series of cases, except one, were sold as tide lands. The one exception involves the land embraced in No. 3077, and was sold as swamp land. We take up the present case, which involves tide land location 132 alone, because it presents the two main questions upon which all of the eases depend, and is free from other questions of importance which may be better treated in connection with the particular case in which they arise. Our discussion and conclusions upon .these two principal questions will apply to and control all of the eases. It is conceded that San Pedro Bay is and always has been navigable waters of this state and of the United States. The application and survey for tide land location 132 was approved

The land has been occupied by the parties defendant and others in privity with them under wharf franchises, and improvements for purposes of navigation have been made thereon in pursuance of said franchises. Those franchises and improvements, by stipulation of the parties, were withdrawn from consideration and were not adjudicated by the court below. Whatever rights the parties may have thereto will remain unaffected by our judgment on the appeals. The superior court gave judgment for the plaintiff, declaring the Reynolds patent void and that the defendants have no interest in the land under it. The tract is all below the line of ordinary high tide.

In speaking of the tide lands in controversy, we are to be understood as referring only to the land lying between the ordinary high and low tide lines. Some of the land involved in some of the cases is submerged land, below the line of ordinary low tide.

The two principal questions mentioned are: 1. The effect of a patent issued under the provisions of the Political Code for the sale of swamp and overflowed, salt-marsh and tide lands, upon the public easement for navigation and fishery and upon the title of the state to the soil; 2. The effect of the act of February 20,1872, purporting to create the town of Wilmington, to bring into operation certain statutory and constitutional provisions reserving swamp and tide lands from sale.

1. The effect of a patent for tide lands.

These patents were issued under and in pursuance of the laws of the state of California providing for the sale by the state of swamp and overflowed, salt-marsh and tide lands, being article II, chapter 1,. title VIII, part III, of the Political Code, embracing sections 3440 to 3493% inclusive. It is admitted on behalf of plaintiff that the proceedings leading up to and including the issuance of these patents were regular in form and according to the provisions of the law above mentioned in force at the time. The plaintiff claims that the patents to the lands sold as tide lands are invalid because

It is a well established proposition that the lands lying between the lines of ordinary high and low tide, as well as that within a bay or harbor and permanently covered by its waters, belong to the state in its sovereign character and are held in trust for the public purposes of navigation and fishery. A public easement and servitude exists over these lands for those purposes. In Martin v. Waddell, 16 Pet. (41 U. S.) 410, [ 10 L. Ed. 997 ], Chief Justice Taney said: “When the revolution took place, the people of each state became themselves sovereign ; and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use.” In Illinois C. Ry. Co. v. Illinois, 146 U. S. 452 , [ 36 L. Ed. 1018 , 13 Sup. Ct. Rep. 118 ], the court defined this trust as follows: “It is a title held in trust for the people of the state that they may enjoy the navigation of the waters, carry on commerce over them, and have the liberty of fishing therein freed from the obstruction or interference of private parties. . . . The control of the state for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters- remaining.” In Ward v. Mulford, 32 Cal. 372 , the court said: “Such land is held by the state in trust and for the benefit of the people. The right of the state is subservient to the public rights of navigation and fishery, and theoretically, at least, the state^can make no disposition of them prejudicial to the right of the public to use them for the purposes of navigation and fishery, and whatever disposition she does make of them her grantee takes them upon the same terms upon which she holds them, and, of course, subject to the public rights above mentioned.” (To the same effect, see Eldridge v. Cowell, 4 Cal. 87 ; Guy v. Hermance, 5 Cal. 74 , [ 63 Am. Dec. 85 ] ; Lux v. Haggin, 69 Cal. 255 , 335, [ 4 Pac. 919 , 10 Pac. 674 ]; Oakland v. Oakland W. F. Co., 118 Cal. 183 , [ 50 Pac. 277 ];

It is also settled that in the administration of this trust when the plan or system of improvement or development adopted by the state for the promotion of navigation and commerce cuts off a part of these tide lands or submerged lands from the public channels, so that they are no longer useful for navigation, the state may thereupon sell and dispose of such excluded lands into private ownership or private uses, thereby destroying the public easement in such portion of the lands and giving them over to the grantee, free from public control and use. On this subject in Illinois C. Ry. Co. v. Illinois, 146 U. S. 452 , [ 36 L. Ed. 1018 , 13 Sup. Ct. Rep. 118 ], the court said: “It is grants of parcels of lands under navigable waters, that may afford the foundation for wharves, piers, docks and other structures in aid of commerce, and grants of parcels which, being occupied, do not substantially impair the public interest in the lands and waters remaining, that are chiefly considered and sustained in the adjudged cases as a valid exercise of legislative power consistently with the trust to the public upon which such lands are held by the state.” (Ward v. Mulford, 32 Cal. 372 ; Taylor v. Underhill, 40 Cal. 473 ; Kimball v. Macpherson, 46 Cal. 107 ,108; Oakland v. Oakland W. F. Co., 118 Cal. 184 , [ 50 Pac. 277 ] ; People v. Kerber, 152 Cal. 733 , [ 125 Am. St. Rep. 93 , 93 Pac. 878 ] ; Messenger v. Kingsbury, 158 Cal. 613 , [ 112 Pac. 65 ].) The most striking instance of the exercise of this power of absolute disposition of such tide or submerged lands by the state of California is found in the laws providing for the improvement of the water-front of San Francisco. By these laws the water-front line was fixed, cutting off from navigation a large area of land which was subject to the daily flux and reflux of the tides and part of the lands always under water, upon which line a sea-wall was constructed, and the area landward of this wall was subsequently surveyed into lots and streets, sold into private ownership and filled in for

In view of these well settled propositions it is obvious that the claim of the plaintiff to the effect that such lands cannot, under any circumstances, be alienated in fee to private parties to the exclusion of the public, cannot be sustained. The main contention of the plaintiff with respect to this and all the other of the series'of cases above mentioned, is that the provisions of the Political Code aforesaid, under which the predecessors in interest of the respective defendants obtained such title as the defendants have to the land, were not enacted by the legislature in pursuance of any design to promote, regulate, or control navigation, but were a part of the scheme or system designed for the sale of proprietary lands of the state suitable for reclamation and agriculture, and, hence, that these provisions do not authorize the sale into private ownership of tide lands lying upon a navigable bay and suitable for use in furtherance of navigation, or that, if these laws do authorize the sale of the title to the soil of lands of this Character, they were not intended to affect the public rights of navigation or fishery and do not give to the patentee anything more than the title to the soil subject to the aforesaid public rights and uses. The defendants contend that these laws were intended to and do authorize the sale of such lands to private use, that they are,.in effect, a decision by the state that the tide lands which its officers may thereafter sell under these laws are unnecessary for navigation or fishery, and that the state’s decision thus made in regard to this matter is conclusive. The precise task before us, therefore, is to ascertain whether these statutes were designed merely to authorize the transfer of the title of the soil for such private use as should not interfere with the public rights of navigation and fishery, and

We had this question under consideration in the recent ease of Forestior v. Johnson, 164 Cal. 30 , [ 127 Pac. 156 ]. The plaintiff in that case had purchased from the state, as tide lands, premises embraced in a navigable bay opening into the bay of San Francisco, known as “Fly’s Bay.” He sued to enjoin the defendants from trespassing thereon by navigating boats over the water for the purpose of hunting and fishing at times when the land was covered with water. The defendants claimed no rights over the land except the right as citizens of the state to exercise the public right of navigation, and while doing so to fish or hunt over the premises. The greater part of the bay was covered and uncovered daily by the tides. The nature of the right asserted by the defendants and their admission as to the title to the soil, made it unnecessary to determine whether or not the patent conveyed such title. The case presented the question whether a patent for tide lands, under these laws, terminated the public right of navigation and fishery over the land embraced therein. It was held that the patent did not terminate these public uses, but merely conveyed to the patentee the title to the soil subject to the public right of navigation and fishery and that the plaintiff was not entitled to enjoin the defendants from exercising these public rights. In this connection the court referred to section 2, of article XV of the constitution, which is as follows: “No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this state, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this state shall be always attainable for the people thereof.” The provisions of the constitution are mandatory and prohibitory. They are binding upon every department of the state government, legislative, executive, and judicial. (Art. I, sec. 22.) All previous laws inconsistent therewith ceased to be effective upon the adoption thereof. (Art. XXII, sec. 1.) The effect of the section above quoted is that, no

The record in these several cases shows that the purchasers of the tide lands, under whom the defendants claim, paid the purchase money for their respective lands after the constitution of 1879 took effect. The earliest payment made was under tide land location No. 57, covering land involved in L. A. No. 3057, entitled the People etc. v. Banning Co., post, p. 630, [ 138 Pac. 100 .] The first installment of the purchase money under that location was paid to the state on March 5, 1880. The consequence is, under the authorities about to be cited, that the several purchasers had no vested right in the land, or any enforceable contract against the state for the purchase thereof, at the time the constitution of 1879 took effect. Hence, it follows that, regardless of the question whether the provisions of the Political Code were intended to authorize a sale in fee or not, the sales made under it after the constitution took effect, including those to the predecessors of the defendant, are all impressed with the limitations, reservations, and qualifications imposed by the aforesaid provision, and the estates held by the defendants are subject thereto. In Messenger v. Kings-bury, 158 Cal. 615 , [ 112 Pac. 67 ], it is said that “an applicant who has merely filed his affidavit and application to purchase, without paying any part of the purchase price,” under the provisions of the Political Code for the sale of tide lands “has no such vested right as will prevent a termination of the opportunity to purchase upon a repeal of the law providing for such sale.” (See, also, Polk v. Sleeper, 158 Cal. 634 , [ 112 Pac. 179 ], and cases there cited.) The decision in

The same conclusion follows from a consideration of the provisions of the Political Code, apart from the effect of the constitution thereon. We so held in Forestier v. Johnson, 164 Cal. 30 , [ 127 Pac. 156 ], Owing to the much greater interests here involved, and the much more elaborate argument in the present cases, we think it proper to treat the subject further. The dates and pages of the official volumes where are found the previous statutes out of which grew the provisions of the Political Code relating to the sale of swamp and overflowed, salt-marsh and tide lands are as follows: Act of April 28, 1855, Stats. 1855, p. 189; Act of April 21, 1858, Stats. 1858, p. ‘198; amending Act of 1859, Stats. 1859, p, 340; amending and confirming Act of May 14, 1861, Stats 1861, p. 363;

But although the above cited acts show that the sale of tide lands was authorized by the various statutes, enacted. after 1859, it is apparent from their provisions that it was not done in the interest of navigation, or with any reference whatever to navigation. The only provision having any tendency to protect or preserve the public easement for navigation, prior to the year 1870, consisted of reservations of lands in and within a specified distance of certain cities, and thereafter and until 1901, of lands within five miles of named cities and within two miles of all other incorporated towns and cities. From and after .1901 the statute reserved tide lands only, within those limits. These reservations, prior to 1901, applied to swamp and overflowed lands as well as tide lands. The purpose of the reservations was not stated in any of the statutes. As they applied, prior to 1901, to both swamp lands and tide lands, the former of which was not held in trust by the state for navigation, but was proprietary land, for the most part far from navigable water, it is clear that even the reservations made were not solely in the interest of navigation.

There has never been any provision regarding navigation in any of these statutes, and no inquiry or determination on the subject, or in reference to it, was authorized. No board or officer was given any discretion or authority to ascertain whether any land applied for was or was not required for purposes of navigation, or what effect their reclamation or use for private purposes would have upon, navigation and commerce. The surveyor general’s approval of the application and survey was necessary. But this requirement applied

The tide lands embraced in these statutes, under the generally accepted meaning of that term, includes the entire sea beach from the Oregon line to Mexico and the shores of every bay, inlet, estuary, and navigable stream as far up as tide water goes and until it meets the lands made swampy by the overflow and seepage of fresh water streams. It is not to be assumed that the state, which is bound by the public trust to protect and preserve this public easement and use, should have intentionally abdicated the trust as to all land not within the very limited areas of the reservations, and should have directed the sale of any and every other part of the land along the shores and beaches to exclusive private use, to the destruction of the paramount public easement, which it was its duty to protect, and for the protection and regulation of which it received its title to such lands.

The history of this legislation on the subject plainly shows that the object of the legislature has been to secure the reclamation of land suitable for agriculture and make it pro-. ductive. The first statutes, those of 1855 and 1858, with the amendment of 1859, provided only for the sale of swamp lands. These embraced large areas, in the interior of the state, situated in the San Joaquin and Sacramento valleys, and extending down to tide water in the bay of San Francisco. There the tide flats in many places merged into them imperceptibly, making it difficult to distinguish between them. The act of May 13, 1861, was the first law providing for reclamation districts. Section 27 of this act declared that it should apply equally to tide lands and swamp lands. No

There is also a rule of‘statutory construction leading to the same conclusion. A statute will not be construed to impair or limit the sovereign power of the state to act in its governmental capacity and perform its governmental functions in behalf of the public in general, unless such intent clearly appears. The state is not bound by general words in a statute, which would operate to trench upon its sovereign rights, injuriously affect its capacity to perform its functions, or es

As stated in Forestier v. Johnson, 164 Cal. 30 , [ 127 Pac. 156 ], the decisions heretofore made by this court hold that these statutes do not allow the alienation of tide lands free from the public easement. In Taylor v. Underhill, 40 Cal.. 473 , the court said that even if the title of the state should pass to the buyer, upon a sale under the act of 1868, “it would not authorize him to change the water-front or obstruct navigation”; that a sale to authorize such change “must be done in the interest of commerce,” and, in effect, that the advisability of such change “must first be determined by the legislature”; and that no such right “passes to-the purchaser under the laws for the sale of swamp and overflowed land.” The only law existing at that time for the sale of tide land was that classing it with swamp and overflowed land. In People v. Russ, 132 Cal. 102 , [ 64 Pac. 111 ], the court said, referring to the rights of the owner of lands bought of the state under the provisions- of the Political Code under consideration: ‘ ‘ The right of the public in the use of a stream, as a public highway, is paramount to any right which the owner of the land has to reclaim his land from overflow.” These decisions support our construction.

Other decisions go further and declare that these laws do not apply to tide lands situated on the shores- of the ocean between high and low tide lines and that a patent for such land conveys no title to the patentee. (People v. Morrill, 26 Cal. 336 ; Kimball v. Macpherson, 46 Cal. 103 ; People v. Cowell, 60 Cal. 400 ; Upham v. Hosking, 62 Cal. 255 .) It was upon these decisions that the court below predicated its conclusion that the defendants had no title to the lands in controversy. In view of the very plain language of the statutes describing tide lands among those authorized to be sold, we do not feel that we can follow these decisions. People v. Morrill, interpreted the act of May 14, 1861, in connection with the act of 1858 as amended by the act of 1859, applying only to the swamp and overflowed lands. The latter required that the purchaser should make oath that the lands were desired for the purpose of “settlement and reclamation by affiant,” and other provisions showed that the reclamation was con

Our conclusions as to the law on this branch of the case may be summarized as follows:

1. The tide lands are, and from the beginning of our government have been, dedicated to public use for purposes of navigation and fishery.

2. The title to these lands is, by the people, vested in the state in trust for said public uses. The administration and execution of this trust is committed by the constitution to the legislative department, subject to certain expressed reservations and restrictions.

3. The powers of the state as trustee are not expressed. They are commensurate with the duties of the trust. Every trustee has the implied power to do everything necessary to the execution and administration of the trust.

4. As the state has the powers necessary to the execution and administration of the trust, it follows that it may dispose of these lands in the administration of the trust in such manner as the interests of navigation may require. ’One. of-the duties of the trust is to adapt the land to the use for navigation in the best manner. If, in. so adapting the tide lands for this use, it is found necessary or advisable, in aid of the use, to cut off portions of it from access to navigable water, so that they become unavailable for navigation, the state has power to exclude such portions from the public use and, to that extent, revoke the original dedication.

5: When this has been done in the regular administration of the trust, the land thus excluded from use for navigation may become proprietary land, not subject to the public use, and it may then be alienated irrevocably by the state for private use to private individuals.

6. When the state, in the exercise of its discretion as trustee, has decided that portions of the tide land should be thus excluded from navigation and sold to- private use, its determination is conclusive upon the courts; but statutes purporting to authorize an abandonment of such public use will be carefully scanned to ascertain whether or not such was the legislative intention, and that intent must be clearly expressed or necessarily implied. It will not be implied if any other inference is reasonably possible. And if any interpretation of the statute is reasonably possible which would not involve a destruction of the public use or an intention to terminate it in violation of the trust, the courts will give the statute such interpretation.

7. The provisions of the Political Code authorizing the sale of the swamp and tide lands show clearly that they were en

acted'without any consideration of the interests or necessities of navigation over tide lands* that they were not intended as an exercise of the power of administering the public trust upon which the state holds the tide land, that they were not enacted in pursuance of a legislative determination that such lands were not necessary for navigation, or as a decision that the interests of navigation required that they be excluded from the public use, or in the interest of navigation. If they had been so intended, they would authorize the alienation of practically all the tide lands without any provision for the protection of the public use and would result in its utter destruction. They can. be given some effect if construed to authorize the sale of such land subject to the public easements, the purchaser to be without authority to interfere with such use, or with the further administration thereof by or on behalf of the state. They are reasonably susceptible of that interpretation; hence they will be so construed. The holder of a patent from the state under these laws will have the naked title to the soil.

8'. Section 2 of article XV of the state constitution deprives the legislature of power to dispose of the tide lands fronting upon navigable water so as to entitle the grantee to destroy or interfere with the public easement for navigation. It also to that extent repeals all laws which theretofore may have purported to authorize such alienation. No payment of purchase money to the state for any of the tide land in question was made until after the adoption of the constitution in 1879. Hence it is all subject to the restriction just stated. Therefore, regardless of the question of the true construction of the Political Code provisions purporting to authorize the sale of tide lands, the patents under which the several defendants claim tide lands are subject to the constitutional restriction and do not deprive the state of its power as sovereign trustee to adapt and improve these lands for navigation as it may see fit. This provision, however, does not deprive the legislature of power to improve the water-front and irrevocably alienate such tide land as may thereby be rendered inaccessible and useless for navigation.

9. If any part of the tide land in controversy was open to sale when the sales thereof were made, the proper judgment would be that the defendants claiming under such patents own

the soil, subject to the easement of the public for the public uses of navigation and commerce, and to the right of the state, as administrator and controller of these public uses and the public trust therefor, to enter upon and possess the same for the preservation and advancement of the public uses and to make such changes and improvements as may be deemed advisable for those purposes.

It is to be understood, of course, that if the state has sold tide lands subject to the public easement, prior to making improvements thereon for navigation, as it may do, it cannot, upon putting in force a plan for the subsequent improvement thereof, retake the absolute title without compensation. The purchaser will continue to hold the servient estate, after as well as before the improvement, and if at any time the public easement and use is lawfully 'and permanently abandoned, the purchaser will then have the absolute and complete estate in the land. And before any such improvement is made by the state, he may use the property as he sees fit, ^ subject to the power of the state to abate any nuisance he may create thereon, and to remove any purpresture he may erect thereon.

10. With regard to the harbor lines fixed by the United States, it is clear that this is the equivalent of a license to the state to fill in the land between them and the shore, either before or after the erection of a wall on the established line. And until such a sea-wall is actually made, the state may improve for navigation the space between such established line for the wall and the shore, by wharves or other structures within the line.

It appears that on July 29, 1908, the authorized officers of the United States established in Wilmington Bay, otherwise known as the inner harbor of' San Pedro, certain lines as pier-head and bulkhead lines for said harbor. A large part of the lands involved lie between these lines and the shore. No seawall, bulkheads, piers, of other improvements have been built on these lines. The defendants claim that the effect of fixing these lines is to divest the public of its easement for navigation over the lands between the lines and the shore, and to release the same to private use. A similar question was presented in People v. Kerber, 152 Cal. 733 , [ 125 Am. St. Rep. 93 , 93 Pac. 878 ], with regard to the sea-wall line fixed by state

One of the patents in another of the series of cases (People v. Banning, L.

The defendants also claim that their titles are validated and confirmed by section 8 of the act of 1893, now incorporated into the Political Code as section 3493s, to the effect' that all uneanceled certificates and patents for swamp and overflowed lands, belonging to any of the classes described in section one of the act (Pol. Code, sec. 3493m), are for all purposes valid. We do not think this statute, either as originally enacted (Stats. 1893, p. 341), or as incorporated in the code, applies to tide land. The description given in the first section is as follows: “lands uncovered by the recession or drainage of the waters of inland lakes, and inuring to the state by virtue of her sovereignty, or the swamp and overflowed lands not segregated by the United States.” The title of the original act was, “an act regulating the sale of the lands uncovered by the recession or drainage of the' waters of inland lakes, and unsegregated swamp and overflowed lands, and validating sales and surveys heretofore made.” No mention is there made of tide lands. They are not included in the subject of the act and it is not to be presumed that the legislature intended to make any provision concerning them. The phrase, “and inuring to the state by virtue of her sovereignty,” in the first section, was not intended to designate another distinct class of land, but only to indicate that the first mentioned class included only the lands uncovered by the recession of navigable lakes, since they belong to the state in virtue of her sovereignty, and not to lands beneath unnavigable lakes, which belong to the owners of the adjoining upland. (Civ. Code, sec. 830; Oakland v. Oakland W. F. Co., 118 Cal. 183 , [ 50 Pac. 277 ] ; Shively v. Bowlby, 152 U. S. 31 , 42, [ 38 L. Ed. 331 , 14 Sup. Ct. Rep. 548 ] ; Foss v. Johnstone, 158 Cal. 127 , [ 110 Pac. 294 ].),

The defendants further claim that the state is estopped to claim title to these lands by reason of the fact that they were purchased for a valuable consideration, which the state has not yet returned or offered to return. This proposition, if it

2. The other question presented affects the validity of these patents with respect to lands situated within two miles of the corporate limits of the town of Wilmington as fixed by the act of February 20, 1872, purporting to create .and incorporate the town of Wilmington. (Stats. 1871-2, p. 108.) The act of April 4, 1870, excluded from sale all land within two miles of “any town or village.” (Stats. 1869-70, p. 877.) This act was in force at the time the act incorporating Wilmington was passed. The Political Code was enacted at the legislative session of 1872, the same legislature which incorporated Wilmington. Section 3488 of the Political Code, prior to 1901, excluded from the operation of that article all tide lands or swamp lands within two miles of any incorporated city or town. Section 3 of article XY of the constitution of 1879 is as follows: “All tide lands within two miles of any incorporated city or town in this state, and fronting on the waters of 'any harbor, estuary, bay, or inlet used for the purposes of navigation, shall be withheld from grant or sale to private persons, partnerships, or corporations.” All the lands in question front on the bay of San Pedro. The act of 1872, incorporating Wilmington, was repealed by the legislature on March 12, 1887 (Stats. 1887, pp. 108, 109). If, in point of law, Wilmington was an incorporated town, within the meaning of the above provision of the code and constitution, during the interval between the passage and the repeal of the law, then all proceedings to purchase the lands in question, taken in that interval, would be invalid with respect to land within the two-mile limit. A considerable part of the land involved is affected in this way. The affidavit and application of J. B. Banning for the purchase of tide land location No. 144, involved in L.

We do not think that the validity of tide land location No. 144 is affected by the fact that the application and affidavit therefor were filed with the surveyor general three days before the repeal of the Incorporating Act. It was not approved until long after the repeal. It remained on file after the repeal and until the approval, and the filing may be considered as having been effective after the approval as well as before it. Until the approval, it was, at most, a mere unaccepted offer to purchase. It did not become effective until it was accepted and approved, and at that time the above restrictions upon the power of the state officers to make sales of land had been removed by the repeal of the Incorporating Act and the consequent destruction of the municipal corporation. No impediment to the valid disposition of the soil remained, and no essential part of the proceeding occurred prior to the repeal.

The other of the locations last mentioned, so far as they embrace land within the two-mile limit, present the question whether or not Wilmington was an incorporated town within the restrictions and reservations of the code and the constitution. Section 1 of the Incorporating Act declares that the tract of land described, containing two thousand four hundred acres, “shall hereafter constitute the boundaries of and be known and named the town of Wilmington.” Section 2, so far as material, is as follows: “The government of said town shall be vested in a board of trustees, to consist of five members, a town marshal, assesssor and treasurer. Said town shall be a body politic and corporate by the name and style of the town of Wilmington, and by that name they and their successors shall be known in law and have perpetual succession, and may sue and be sued in all courts and in all actions whatsoever. ...” Section 3 provided that the town officers should be elected by the legal voters of the town on the first Elonday of April of 1872, and on the first Elonday

Section 4 provide .1 that for the first election the justice of the peace of the township should appoint the election officers, who should proceed to open the polls, receive the votes, and declare the results. It appeal’s from the evidence that at the instance of the township justice fourteen citizens met prior to the election day and nominated candidates for the several offices, but that before the day of election came the general sentiment of the citizens was that the incorporation was a mistake, and they did not vote at the election. No election was ever held, and no person or persons ever acted or assumed to act as officers of the town at any time. The citizens did nothing to organize the town government. Upon these facts the defendants contend that the said iown of Wilmington was never incorporated and that it never had a legal corporate existence. The argument is that the state could not erect any territory into a municipal corporation without the consent of the citizens concerned, or a majority of them, and that in the absence of such consent and in the face of a refusal to consent, the attempt to incorporate the town was ineffectual for any purpose. It is also urged that the act of the legislature was a mere proposal for a future incorporation, intended to be of no effect whatever until it was accepted by the citizens and a corporate organization effected, 'and that by their refusal to accept the corporate franchise or to organize under it, the citizens rejected the proposal and prevented the creation of such proposed municipal corporation.

The Incorporating Act was passed while the constitution of 1849 was in force. The effect of the act depends upon the terms of that constitution. Section 1 of article IV thereof granted all the legislative power of the state to the senate and assembly, constituting the legislature, subject, of course, to such limitations as the constitution elsewhere imposed. Section 31 of the article provided that ‘ ‘ Corporations may be formed under general laws, but shall not be created by special acts, except for municipal purposes.” Section 37 provided that “It shall be the duty of the legislature to provide for the organization of cities and incorporated villages.”

It is, of course, unnecessary to decide here that the legislature could have forced the citizens of Wilmington to attend the election and vote for municipal officers or could have compelled them to take up and. perform any of the civic duties incident to citizens of such corporation, or to incur municipal debts or liabilities of 'any character. It may be that legislative power does not include such extreme power over personal liberty of action. The question here presented involves no such proposition. It is a question of the application of a clause reserving land from sale by the state, a reservation made for the benefit of municipal corporations, present and future, and for the preservation of public rights likely to become important to a growing town or city, although of little importance when first incorporated. The reservation in the act of 1870 protected towns and villages, whether incorporated or not. It was superseded by the reservation in the Political Code. It was important that the latter reservation should be effective immediately upon the creation of a municipal corporation without awaiting the organization of the municipal government by the citizens. If this were not so, the reservation would usually be ineffective,

From all these considerations we conclude that Wilmington was an incorporated town from the time of the Incorporating Act until its repeal, unless the terms of the act itself show a legislative intent that acceptance and organization were to be a condition precedent to the beginning of its status as a corporation. The act contains nothing evincing such an

In the ease of tide land location 132, here involved, the approval of the application and survey occurred in 1886, before the act incorporating the town of Wilmington was repealed and while the sale of the land was unauthorized and prohibited by reason of the fact that the land was situated within two miles of the town of Wilmington as incorporated in 1872. The patent in pursuance of said application and payment was not issued until May 31, 1887, more than two months after the repeal of the act incorporating Wilmington had removed the restriction and made the subordinate' title to the soil open to sale. The appellants claim that the patent thus issued after the restriction was removed is valid, although all the previous proceedings were forbidden at the time they were had, but they do not argue the point or present authorities to support it. Cases holding that a patent is conclusive against collateral attack are not applicable here. This action is by the state itself, in effect to declare the patent invalid. It is a direct attack, by the party authorized to make it. The rule regarding sales of public lands is that all acts of the administrative officers of the state toward such sale, in respect to the lands which the state has withheld from sale, or which are not yet subject to sale, are void, not merely voidable but absolutely void for want of power in the officers, and no subsequent action by the officers themselves can give validity to the void act or ratify it in any way. (Doolan v. Carr, 125 U. S. 618 , [ 31 L. Ed. 844 , 8 Sup. Ct. Rep. 1228 ] ; United States Land Assoc, v. Knight, 85 Cal. 485 ,

In the present case, the period of limitation has not begun to run. The patent, as we have shown, is absolutely void. Its issuance without authority and contrary to the constitutional prohibition did not set the statute in motion. There has been no adverse possession by the defendants. The only occupancy shown was under certain wharf franchises which, with the improvements made in pursuance thereof, are reserved from the operation of the judgment.

The point that at the expiration of such a franchise, or of a railroad permit, the state cannot take such improvements without compensation, does not arise in this or in any other of the cases. Nor do any of them involve the proposition that improvements or structures made on tide lands by a purchaser, on the faith of a patent which grants him only the servient fee, subject to the public easements, may be taken

The conclusion we have reached as to tide land location 132 is that the patent is wholly void because of the proximity of the land to the .town of Wilmington as incorporated in 1872, and that the judgment of the court below was, in effect, correct.

The judgment and order are affirmed.

Angellotti, J., and Sloss, J., concurred.

I concur in the judgment and generally in what is said in the opinion of Justice Shaw so far as it relates to the questions presented by this particular ease—a case which hinges upon the proposition that the patent in question was absolutely void ab initio, 'and under which there was no adverse possession. Such a case does not call for any extended discussion of the effect of a valid conveyance of tide lands, as to the interest or estate granted or the reserved rights of the public. As to these matters I prefer to express my views in one of the eases in which the patent cannot be held to have been void, and in which it will be necessary to define the interest acquired by the patentee and the rights reserved to the state. By this I do not mean to intimate that I find myself very widely at variance with the present opinion, but only that I think, that in a few particulars' it requires some qualification.