Pacific Coast Law Journal. VOL. 2. NOVEMBER 9, 1878. No. 11. Current Topics. THE Supreme Court of the United States began its labors October 15th, upon the unusually large docket of cases, brought up on appeal from all parts of the country. The docket contains 878 cases, and the number is constantly increasing. The Washington lawyers represent more cases before that court than those from any other locality. This docket is led by Enoch Totten, Esq., of Washington, who appears in twenty-nine cases. This is the largest number of cases represented by any one attorney, or firm of attorneys. Mr. P. Phillips represents nineteen cases, Mr. R. T. Merrick represents thirteen, and ex-Senator Carpenter ten. Mr. Grant, of Iowa, represents sixteen cases, or more cases than any one attorney outside of Washington. The court will sit in continuous session until about the 1st of May, excepting a short recess during the holidays. Between 300 and 400 cases are usually disposed of at each term. THE Convention, after several days of close debate, have agreed to amend the section of the present Constitution in regard to the right of trial by jury. The section now reads: Section 7. The right of trial by jury shall be secured to all, and remain inviolate; but in civil actions, and in cases of misdemeanor, where the punishment does not exceed six months' imprisonment, or a fine of five hundred dollars, or both, three-fourths of the jury may render a verdict. A trial by jury may be waived in all criminal cases not amounting to felony, by the consent of both parties, in open court expressed; and in civil cases, by the consent of the parties, signified in such a manner as may be prescribed by law. In civil cases, and in cases of misdemeanor, the jury may consist of any number less than twelve, that the parties may agree upon in open court. Section 8, respecting grand juries, was amended so as to read: Section 8. Offenses heretofore required to be prosecuted by indictment shall be prosecuted by indictment, or by information after commitment on examination by a magistrate, as may be prescribed by law; but a grand jury shall be drawn and summoned at least once a year in each county. CIRCULAR INSTRUCTION. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, WASHINGTON, D. C., August 10, 1878. Register and Receiver, United States District Land Office. GENTLEMEN: On the 23d ultimo the Honorable Secretary of the Interior rendered a decision in the case of Nelson Dudymott vs. Kansas Pacific Railway Company, involving a construction of the last clause of Section 3 of the Act of Congress, approved July 1, 1862, entitled, "An act to aid in the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean, * * * *” (12 Statutes, page 498), which clause is in the following words: "And all such lands, so granted by this section, which shall not be sold or disposed of by said company within three years after the entire road shall have been completed, shall be subject to settlement and pre-emption, like other lands, at a price not exceeding one dollar and twenty-five cents per acre, to be paid to said company." In accordance with such decision, a copy of which is herewith sent you, the following instructions are given: They will apply only to lands granted by said Act of July 1, 1862, as amended by the Act of July 2, 1864, and the Act of March 3, 1869, authorizing the transfer of part of the grant to the Union Pacific Railway Company, Eastern Division, to the Denver Pacific Railway Company. Where any person shall apply to file a pre-emption declaratory statement for a tract, or tracts, not exceeding a quarter section, within the limits of such grant, and where the entire road shall have been completed for more than three years, such applicant will be required to show that he or she is duly qualified as a pre-emptor. Thereupon the declaratory statement will be conditionally received and the proper note thereof made. You will immediately thereafter call upon the proper officer of the railroad company for a statement showing whether the lands applied for had been sold by it prior to the date of the application to file a declaratory statement therefor. If the company shall report that the land had been so sold, the report must show the date of such sale, and the name of the person or persons to whom sold, and give a description of the deed or instrument of conveyance. On the receipt of such a report you will reject the application to file a declaratory statement, subject to appeal to this office. If the company shall state that the land had not been sold, you will allow the declaratory statement, and upon the applicant showing at the proper time a full compliance with the requirements of the pre-emption laws, permit payment of entry at $1 25 per acre. Each declaratory statement allowed, and entry permitted, should be given its proper number of the current series. Should the company neglect or refuse to furnish the required statement within thirty days after your call therefor, you will, upon a request by the pre-emption applicant, order a hearing to determine whether the tract, or tracts, applied for are subject to such filing, giving due notice of the time, when, and place where such hearing will be held, in some newspaper published and circulated in the county where the lands are situated, notifying said company, and any and all persons, if such there be, claiming title to said lands under it, to appear at the time and place mentioned and show cause why the declaratory statement should not be received. At such hearing the applicant will be required to prove that he or she is an actual settler upon the land, and a qualified pre-emptor, and that the records of the county, where deeds and conveyances are recorded, do not show that the land had been sold at the date of the application to file a declaratory statement therefor; and the company, or its grantee, will be permitted to establish the fact of such prior sale by it. If the company, or its grantee, fail or refuse to appear and offer any testimony, and the proofs submitted by the applicant be, in your judgment, satisfactory, you will allow the filing of the declaratory statement, and transmit the record to this office for examination and instructions. If both parties appear at the hearing and submit testimony, you will transmit the record to this office with your joint opinion thereon. As the law requires the proceeds of the sales of such lands to be paid to the company, payments therefor must be made with cash, and not with military bounty land warrants or agricultural college scrip, nor can a pre-emption filing therefor be transmuted into a homestead entry. In making returns of the lands thus sold you will transmit separate abstracts of such lands and accounts of moneys received therefor, for each company, in order that such moneys may be passed to the credit of the proper company. For your information and guidance, I subjoin the following list of companies whose grants are clearly under, or subject to, the terms of the Act of July 1, 1862, with the date of the completion of each road, as appears from the records of the departments: Union Pacific Railway, completed July 15, 1869. Sioux City and Pacific Railroad, completed March 2, 1869. Question as to the completion of the Central Branch, Union Pacific Railroad, has been submitted to the Secretary of the Interior by the company, and is now under consideration. Applications involving that company's lands, therefore, will not be considered by you until further instructed. Should application be made to file for lands within the limits of grants other than those named above, with allegation that such lands are subject to the same or a like condition as imposed by the Act of July 1, 1862, you will transmit the application to this office for instructions. Very respectfully, J. A. WILLIAMSON, Commissioner. Approved: C. SCHURZ, Secretary of the Interior. September 4, 1878. Supreme Court of California. OCTOBER TERM. [No. 6,135.] [Filed October 31, 1878.] HARPER, APPELLANT, VS. ROWE, RESPONDENT. PRACTICE-JUDGMENT ROLL-WHEN IT MUST be Produced.-If a party attempts to avail himself of a decree as an adjudication upon the subject matter, or as a link in his chain of title founded on a judicial sale under the decree, he must produce the judgment roll, so that, among other things, the court may determine, on an inspection of the entire roll, whether the court which rendered the decree had jurisdiction of the subject matter. VOID TAX SALES.-The attempted levy of State taxes for 1873-4 was void, and for the reasons stated in Wills vs. Austin (2 P. C. L. J. 44), the sale for State and county taxes for that year was void. EXCESSIVE SALES-One of the items for which the land was sold was the sum of seventy cents for filing and recording the duplicate certificate of sale. Held: excessive and illegal, and the sale void. Section 3803 Poiitical Code, authorizing the Tax Collector to include interest on the delinquent tax at the rate of two per cent. per month from the time when it was first delinquent, has no application to a sale made by the Tax Collector to collect a delinquent tax in the first instance. |