every month of their part of the above apportionment, and the final adjustment of the amount thereof between the government and the states. Of course, this implies that within the limits of the state there were certain matters of revenue reserved, out of which the states were to collect the sums apportioned to them, and to return the same to the general treasury. Subsequent legislation throws light upon the meaning of this revenue law. Thus, on April 6, 1830, a decree was passed, the third article of which is as follows:

"The government shall have power to appoint one or more commissioners to visit the colonies of the frontier states, to contract with their legislatures for the purchase, in the name of the federation, of the lands they may consider suitable and sufficient for the establishment of colonies of Mexican and of other nations, to enter into such arrangements with the colonies already established as they may deem proper for the security of the republic, to see to the exact compliance with the contracts upon the entry of new colonists, and to examine as to how far those already entered into have been complied with.

"(4) The executive shall the power to take the lands he may consider suitable for fortifications and arsenals, and for new colonies, and shall give the states credit for their value on the accounts they owe the federation." Reyn. Spanish & Mex. Land Laws, p. 148.

The language of this decree is very significant, and clearly recognizes some title in the states, for why should commissioners be authorized to contract with the legislatures of the states for the purchase of lands which belonged to the nation? It also clearly recognizes the right of the states to sell these vacant lands, and apply the proceeds in settlement of the demands made against them by the general apportionment of the revenue law of 1824. It declares that the executive may take the lands he considers suitable for fortifications, arsenals, and for new colonies, and at the same time provides that he shall give the states credit on the amount they owe the confederation. But why should any credit be given if these lands so taken by the executive were the property of the nation and the states without authority to sell them or receive the proceeds of sales? If during all these years the lands were the property of the nation, were to be held and sold only by the nation, and the proceeds thereof to be accounted for directly to the nation, why should it be decreed that, if the nation takes any part of them for arsenals and other public purposes, credit for the val ue thereof is to be entered upon the amounts due by the states to the nation? We find it difficult to escape the force of this decree of 1830. It indicates that, although the language of the revenue decree of 1824 is indefinite, and does not in terms name vacant public

lands, yet both the nation and the states understood that its effect was to grant authority to the states to sell such lands, and appropriate the proceeds in settlement of the amounts charged against them by the nation. We see no other way in which to give reasonable force to the language of this decree of 1830, and it must be held to be a national interpretation of the revenue decree of 1824.

But we are not limited to this authoritative national exposition of the meaning of the revenue law of 1824. The testimony in the several cases of a similar nature now before us, including therein the reports of the officers of this government sent to examine the archives of Mexico, discloses that the state of Sonora, at least, assumed that the revenue act of 1824 authorized its disposal of the vacant public lands, and, acting on that assump tion, did in a multitude of cases make sales thereof. In this connection it may be observed that the constitution of the state of Sonora, or State of the West, declares (article 47) that the right of selling lands belongs to the state. This constitution bears date May 11, 1825. Law No. 30 of that state, of May 20, 1825,-the law referred to by the treasurer general in the expediente,-recites that "the congress has seen fit to decree the following provisional law for the purchase of the lands of the state." Subsequent legislation of the state is in the same line.

Further, sections 8 and 9 of article 161 of the national constitution of 1824 made it the duty of each Mexican state "to present annually to each one of the houses of the general congress a minute and comprehensive report of the amounts that are received and paid out at the treasuries within their limits, together with a statement of the origin of the one and the other, and touching the different branches of agriculture, commercial and manufacturing industries," etc.

And also "to forward to the two chambers [of the federal government], and when they are in recess to the council of the government, a certified copy of their constitutions, laws and decrees."

It may be assumed that these requirements of the national constitution were complied with, and that the constitutions, laws, and decrees of the state, and the proceedings had in reference to these several sales of land, were reported to the congress of the nation. Q We find no act of that congress setting aside such legislation or sales. This is significant, and it is not inappropriate to refer to Clinton v. Englebrecht, 13 Wall. 434, 446, in which it was said:

"In the first place, we observe that the law has received the implied sanction of congress. It was adopted in 1859. It has been upon the statute book for more than twelve years. It must have been transmitted to congress soon after it was enacted, for it was the duty of the secretary of the territory to transmit to that body copies of all laws on or before the 1st of the next December in each

year. The simple disapproval by congress at any time would have annulled it. It is no unreasonable inference, therefore, that it was approved by that body."

We are not insensible of the fact that the provisions of the act of September 21, 1824, creating the office of commissary general,— an act which we had occasion to consider in Ely's Adm'r v. U. S., 18 Sup. Ct. 840,-seem to make against the idea of the administration of vacant lands by the states, and it is difficult to work out from all the statutes a consistent, continuous, and harmonious rule. We must in each case endeavor to ascertain what the Mexican government recognized as valid, and, when that is done, the duty of respecting and enforcing the grant arises. Other matters are referred to by counsel in their briefs, but it would needlessly prolong this opinion to refer to them. Our conclusion is that at the time of these transactions the several states had authority to make sales of vacant public lands within their limits, and that such sales, unless annulled by the national government, must be considered as grants to be recognized by this government under the terms of the treaty of 1853.

We pass, therefore, to a consideration of the effect of the decrees of Santa Anna. The lands in controversy were obtained from Mexico under what is known as the "Gadsden Treaty of 1853." This treaty was concluded on December 30, 1853, and ratified June 30, 1854. At the time of the treaty Santa Anna was supreme executive and virtually dictator in Mexico, and the treaty was negotiated with him. On November 25, 1853, only about a month before the signing of the Gadsden treaty, he published this decree:

"Article 1. It is declared that the public lands, as the exclusive property of the nation, never could have been alienated under any title by virtue of decrees, orders, and enactments of the legislatures, governments, or local authorities of the states and territories of the republic.

"2. Consequently, it is also declared that the sales, cessions, or any other class of alienations of said public lands that have been made without the express order and approval of the general powers, in the manner prescribed by the laws, are null and of no value or effect.

"3. The officials, authorities, and employees upon whom devolve the execution of this decree, shall proceed as soon as they receive it to recover and take possession in the name of the nation, of the lands comprehended in the provisions of article 1, and that may be in the possession of corporations or private individuals, whatever may be their prerogatives or position.

"4. The judicial, civil, or administrative authorities shall admit no claims of any kind nor petitions whose purpose is to obtain indemnifications from the public treasury for the damages the unlawful holders or owners may allege under the provisions of the pre

ceding article; and they shall preserve their right only against the persons from whom they have the lands they are now compelled to return." Reyn. Spanish & Mex. Land Laws, p. 324.

On July 5, 1854, he published another de cree, which was even more specific, containing these provisions:

"Article 1. The titles of all the allenations of public lands made in the territory of the republic from September, 1821 till date, whether by the general authorities or by those of the extinguished states and departments, shall be submitted to the revision of the supreme government, without which they shall have no value and shall constitute no right of property.

"5. The alienations of public lands, of whatever nature they be, that have been made by the authorities and officials of the departments without the knowledge and approval of the general government, during the epoch when the central system was in force in the, republic, are void.

*"6. Those made by said authorities in the epoch of the extinguished federation are likewise void: provided they were not made for the purpose of extending and promoting colonization, which was the purpose proposed by the law of August 18th, 1824.

"7. Grants or sales of lands made to prlvate individuals, companies, or corporations under the express condition of colonizing them, and the holders of which have not complied therewith in the terms stipulated, are declared to be of no value." Reyn. Spanish & Mex. Land Laws, p. 326.

Subsequently, on December 3, 1855, and after Santa Anna had been deposed, and while Juan Alvarez was president ad interim, a decree containing the following provisions was entered:

"Article 1. The decrees of November 25, 1853, and July 5th, 1854, which submitted to the revision and approval of the supreme government the grants or alienations of public lands made by the local governments of the states or departments and territories of the republic from September, 1821, to that date, are repealed in all their parts.

"Art. 2. Consequently, all the titles issued during that period by the superior authorities of the states or territories under the federal system, by virtue of their lawful faculties, or by those of the departments or territories, under the central system, with express authorization or consent of the supreme government for the acquisition of said lands, all in conformity with the existing laws for the grant or alienation respectively, shall for all time be good and valid, as well as those of any other property lawfully acquired, and in no case can they be subjected to new revision or ratification on the part of the government." Reyn. Spanish & Mex. Land Laws, p. 329.

And again, on October 16, 1856, a decree

*289

was passed while Ignacio Comonfort was president, the first article of which is as follows:

"Article 1. The decrees of November 25th, 1853, and July 7th, 1854, are void." Reyn. Spanish & Mex. Land Laws, p. 331.

The court of private land claims was divided. Three of the justices were of opinion that, as this government * recognized Santa Anna in negotiating with and purchasing from him the territory within the Gadsden purchase, the courts must also recognize his declarations in respect to titles as authoritative, citing in support of these general propositions Wheat. Int. Law, §§ 31, 32, and Hal. Int. Law, pp. 47, 62. Without questioning the general propositions laid down in these authorities, we are of opinion that too much weight was given to the decree of Santa Anna of November 25, 1853, the only one announced before the cession, and that that decree should not be considered as absolutely determinative of individual rights and titles.

While it is true that practically Santa Anna occupied for the time being the position of dictator, it must not be forgotten that Mexico, since its separation from Spain in 1821, was assuming to act as a republic, subject to express constitutional limitations. While temporary departures are disclosed in her history, the dominant and continuous thought was of a popular government under a constitution which defined rights, duties, and powers. In that aspect the spasmodic decrees made by dictators in the occasional interruptions of constitutional government should not be given conclusive weight in the determination of rights created during peaceful and regular eras. The divestiture of titles once legally vested is a judicial act. In governments subject to ordinary constitutional limitations a mere executive declaration disturbs no rights that have been vested, and simply presents in any given case to the judicial department the inquiry whether the rights claimed to have been vested were legally so vested. Undoubtedly this government, dealing with Mexico, and finding Santa Anna in control, rightfully dealt with him in a political way in the negotiation of a treaty and the purchase of territory, and the judicial department of this government must recognize the action of its executive and political department as controlling. But when the courts are called upon to inquire as to personal rights existing in the ceded territory, a mere declaration by the temporary executive cannot be deemed absolutely and finally controlling. It is unnecessary to rest this case upon the fact disclosed that these decrees of Santa Anna were immediately thereafter revoked. It is not significant that the substance of them was thereafter re-established. We are compelled to inquire whether, prior to such decree, there were rights vested,-rights which the Mexican government recognized,-and

then determine whether those rights were by such decree absolutely destroyed.

Turning to the decree of November 25, 1853, the first and second articles are mere declarations of law. The third article directs the officials to proceed to the execution of the decree, and to recover and take possession of the lands coming within the scope of the prior articles. It does not appear that any steps were taken by any officials to carry into execution this decree. Whether this particular grant came within the scope of the two declarations of law was a question to be considered and determined. On that question the grantee never was heard. There never was a judicial adjudication that his grant came within the scope of the first two articles. He was never dispossessed. His property was never taken possession of. It is going too far to hold that the mere declaration of a rule of law made by a temporary dictator, never enforced as against an individual grantee in possession of lands, is to be regarded as operative and determinative of the latter's rights.

As for the reasons heretofore mentioned, we are of opinion that a valid grant was made in this case, we think this arbitrary declaration by a temporary dictator was not potent to destroy the title. The decree of the court of private land claims must, therefore, be reversed. As shown by the statement of facts, the survey of the land claimed in the petition is in excess of the four sitios granted and paid for. While the excess is not so great as in many cases, yet we think the rule laid down in Ely's Adm'r v. U. S., 18 Sup. Ct. 840, should control, and that this government discharges its full duty under the treaty when it recognizes a grant as valid to the amount of land paid for. The decree of the court of private land claims will be reversed, and the case remanded for further proceedings.

(171 U. S. 292)

PERRIN v. UNITED STATES et al.
(May 31, 1898.)
No. 30.

Appeal from Court of Private Land Claims. Byron Waters and John T. Morgan, for appellant. Matt. G. Reynolds, for appellees.

Mr. Justice BREWER delivered the opinion of the court.

So far as the question of title is concerned, this case is similar to the one immediately preceding. Camou v. U. S., 18 Sup. Ct. 855. For reasons therein stated, the decree of the court of private land claims will be reversed, and the case remanded for further proceedings. It is true, as suggested in its opinion, the court of private land claims thought that there was no sufficient location of the tract in controversy, and that probably the grant

was void for uncertainty in the description of the property. It may be that this conclusion was right. At the same time, in view of what has been recently said by this court in respect to boundaries, description, and area, we think that justice requires that we reverse the judgment, and remand the case for further proceedings. Perhaps the claimants may be able to satisfactorily identify a tract not larger than the area purchased and paid for which should equitably be recognized as the tract granted.

(171 U. S. 345)

PATAPSCO GUANO CO. v. BOARD OF AGRICULTURE OF NORTH CAROLINA et al.

(May 31, 1898.) No. 9.

STATE INSPECTION LAWS-REPEAL OF STATUTESINTERSTATE COMMERCE.

1. Act N. C. Jan. 21, 1891, amending certain sections of the Code providing for the inspection of fertilizers, operated to repeal all previous laws making any substantial diversion of the money to be derived from the charge of 25 cents per ton on fertilizers to any other purposes than those connected with the necessary expenses of inspection.

2. In repealing parts of the Code which had been declared unconstitutional, the court cannot impute to the legislature an intent to revive earlier laws which might render the amended laws liable to the same objection.

3. A state inspection law imposing a charge which it declares to be for defraying the cost of inspection will not be held unconstitutional, as an unwarranted tax on interstate commerce. merely because some of the revenue derived therefrom has in fact been applied to other purposes.

4. A state inspection law may operate upon imported as well as exported articles.1

5. Act N. C. Jan. 21, 1891, imposing an inspection tax of 25 cents per ton on fertilizers. is not so excessive as to make the act a mere levying law, obnoxious to the objection of being an unwarrantable interference with interstate

commerce.

Mr. Justice Harlan and Mr. Justice White dissenting.

Appeal from the Circuit Court of the United States for the Eastern District of North Carolina.

Thomas N. Hill and John W. Hinsdale, for appellant. R. HI. Battle, F. H. Busbee, and J. C. L. Harris, for appellees.

Mr. Chief Justice FULLER delivered the opinion of the court.

This was a bill filed in the circuit court of the United States for the Eastern district of North Carolina, April 1, 1892, seeking to enjoin the collection of an inspection charge of 25 cents per ton on commercial fertilizers, as prescribed by an act of the general assembly of North Carolina of January 21,

1 For an elaborate note on state taxation and the regulation of commerce generally, see note to Board of Assessors of Parish of Orleans v. Pullman's Palace-Car Co., 8 C. C. A. 492.

1891, and from taking any steps whatever to enforce that act, on the ground of its unconstitutionality.

The court entered a restraining order, but, on the coming in of the answer, a motion to continue the injunction until the hearing was heard on bill, answer, affidavits, and exhibits, and denied, and the temporary injunction dissolved. The opinion of the circuit court, by Seymour, J., is reported in 52 Fed. 690. Proofs were taken, and a final hearing had, at June term, 1893, at Raleigh. The bill was dismissed, and complainant thereupon prosecuted this appeal.

By section 14 of article 9 of the constitution of North Carolina of 1875-76, it was provided that, as soon as practicable after the adoption of that instrument, the general assembly should "establish and maintain, in connection with the university, a department of agriculture, of mechanics, of mining, and of normal instruction."

By an act of March 12, 1877 (Laws N. C. 1876-77, p. 506, c. 274), such a department was established, and, among other things, the subject of commercial fertilizers dealt with. By the eighth section, manipulated guanos, superphosphates, or other commercial fertilizers were forbidden to be sold, or offered for sale, until the manufacturer or person importing the same had obtained a license therefor, on payment of a privilege tax of $500 per annum for each separate brand or quality.

By section 9, every bag, barrel, or other package of such fertilizer offered for sale was required to have thereon a label or stamp setting forth the name, location, and trade-mark of the manufacturer, the chemical composition of the contents, and the real percentage of certain specified ingredients, and that the privilege tax had been paid. By section 10, the board was empowered to collect samples for analysis; by section 11, to require railroad and steamboat companies to furnish monthly statements of the quantity of fertilizers transported; and, by section 12, to establish an agricultural experiment and fertilizer central station in connection with the chemical laboratory of the university, and the trustees of the university, with the approval of the board, were directed to employ an analyst, skilled in agricultural chemistry, whose duty it should be "to analyze such fertilizers and products as may be required by the department of agriculture, and to aid as far as practicable in suppressing fraud in the sale of commercial fertilizers," and whose salary was to be paid "out of the funds of the department of agriculture."

The sections bearing on this subject were carried forward in the Code of 1883 (volume 2, c. 1, § 2190 et seq.).

In August, 1890, the circuit court for the Eastern district of North Carolina (Bond and Seymour, JJ.) held that section 2190 of the Code, declaring that no commercial fer

tilizers should be sold or offered for sale until the manufacturer or importer obtained a license from the treasurer of the state, for which should be paid a privilege tax of $500 per annum for each separate brand, was in violation of the federal constitution, and void. American Fertilizer Co. v. Board of Commissioners, 43 Fed. 609.

Thereupon, by the act of January 21, 1891 (Laws 1891, p. 40, c. 9), chapter 1 of volume 2 of the Code was amended, and sections 2190, 2191, and 2193 were made to read as follows:

"Sec. 2190. For the purpose of defraying the expenses connected with the inspection of fertilizers and fertilizing materials in this state there shall be a charge of twenty-five cents per ton on such fertilizers and fertilizing material for each fiscal year ending November thirtieth, which shall be paid before delivery to agents, dealers or consumers in this state: provided, the board shall [have] the discretion to exempt certain natural material as may be deemed expedient. Each bag, barrel or other package of such fertilizers or fertilizing materials shall have attached thereto a tag stating that all charges specified in this section have been paid, and the state board of agriculture is hereby empowered to prescribe a form for such tags, and to adopt such regulations as will enable them to enforce this law. Any person, corporation or company who shall violate this chapter, or who shall sell or offer for sale any such fertilizers or fertilizing material contrary to the provisions above set forth, shall be guilty of a misdemeanor, and all fertilizers or fertilizing materials so sold or offered for sale shall be subject to seizure and condemnation in the same manner as is provided in this chapter for the seizure and condemnation of spurious fertilizers, subject, however, to the discretion of the board of agriculture to release the fertilizers so seized and condemned upon the payment of the charge above specified and all costs and expenses incurred by the department in such proceeding: provided, that tags shall be attached by manufacturers, agents or dealers to all fertilizers now in the state; those protected under license previously issued shall be furnished free of charge.

"Sec. 2191. Every bag, barrel or other package of such fertilizers or fertilizing materials as above designated offered for sale in this state shall have thereon plainly printed a label or stamp, a copy of which shall be filed with the commissioner of agriculture, together with a true and faithful sample of the fertilizer or fertilizing material which it is proposed to sell, at or before delivery to agents, dealers or consumers in this state and which shall be uniformly used and shall not be changed during the fiscal year for which tags are issued, and the said label or stamp shall truly set forth the name, location and trade-mark of the manufacturer; also the chemical composition of the con

tents of such package, and the real percentage of any of the following ingredients asserted to be present, to wit, soluble and precipitated phosphoric acid, which shall not be less than eight per cent.; soluble potassa, which shall not be less than one per cent.; ammonia, which shall not be less than two per cent., or its equivalent in nitrogen; together with the date of its analyzation, and that the requirements of the law have been complied with; and any such fertilizer as shall be ascertained by analysis not to contain the ingredients and percentage set forth as above provided shall be liable to seizure and condemnation as hereinafter prescribed, and when condemned shall be sold by the board of agriculture for the exclusive use and benefit of the department of agriculture."

Section 2192 refers to the proceedings to condemn.

"Sec. 2193. Any merchant, trader, manufacturer or agent who shall sell or offer for sale any commercial fertilizer or fertilizing material without having such labels, stamps and tags as hereinbefore provided attached thereto, or shall use the required tag the second time to avoid the payment of the*tonnage charge, or if any person shall remove any such fertilizer, [he] shall be liable to a fine of ten dollars for each separate bag, barrel or package sold, offered for sale or removed, to be sued for before any justice of the peace and to be collected by the sheriff by distress or otherwise, one-half less the costs to go to the party suing and the remaining half to the department; and if any such fertilizer shall be condemned as herein provided it shall be the duty of the department to have an analysis made of the same and cause printed tags or labels expressing the true chemical ingredients of the same put upon each bag, barrel or package, and shall fix the commercial value thereof at which it may be sold; and any person who shall sell, offer for sale or remove any such fertilizers, or any agent of any railroad or other transportation company who shall deliver any such fertilizer in violation of this section shall be guilty of a misdemeanor."

Section 2196, which corresponded to section 12 of the act of March 12, 1877, was amended by the substitution of the word "control" for the word "central," and read as follows:

"The department of agriculture shall establish an agricultural experiment and fertilizer control station, and shall employ an analyst, skilled in agricultural chemistry. It shall be the duty of said chemist to analyze such fertilizers and products as may be required by the department of agriculture, and to aid as far as practicable in suppressing fraud in the sale of commercial fertilizers. He shall, also, under the direction of said department, carry on experiments on the nutrition and growth of plants, with a