LATHROP v. MILLS et al., 19 Cal. 513

Baldwin, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring. The question presented by the record is this: Is that part of the eleventh

section of the Act of 1856, (Stat. 1856) which declares that a suit on a patent shall be brought within two years from the date of the patent, constitutional ? It is admitted that the Act of 1856, in its general features, is unconstitutional; and such has been the decision of this Court. But now it is insisted that though the general provisions of the act are unconstitutional, yet that this particular provision is constitutional, and therefore is valid, notwithstanding the invalidity of the other provisions of the act.

It is true, that the Constitution merely interdicts acts which oppose its provisions, and that if in any act there be found a provision which is. constitutional, that provision may be carried out. provided the excepted provision is entirely disconnected from the vicious portions of the act, and the Legislature is presumed to intend that notwithstanding the invalidity of the other part of the act, still this particular

section shall stand. The saving of the particular provision, even when not upon its face unconstitutional in such instances, is therefore a matter of legislative intent. In order to sustain the excepted clause, we must intend that the Legislature, knowing that the other provisions of the statute would fall, still willed that this particular

section should stand as the law of the land. This general question arose in the case of Warren et al. v. Mayor and Aldermen of Charlestown. (2 Gray, [Mass.] 85.) In that case the Court, the learned Chief Justice Shaw delivering the opinion, said : “ It is no doubt true, as has been argued by the learned counsel for the prosecutors of this writ, that the same act of legislation may be unconstitutional in some of its provisions and yet constitutional in others. It was so decided in the case of Fisher v.

McGirr, just cited, in which it was held that all that part of the Act of 1852 respecting the manufacture and sale of spirituous liquors, which authorized a seizure of liquors on the terms and in the manner there provided, was unconstitutional; and yet we are every term rendering judgments against persons for selling spirituous liquors contrary to other provisions of the same statute. There is no inconsistency in this. Such act has all the forms of law, and has been passed and sanctioned by the duly constituted legislative department of the Government; and if any

part is unconstitutional, it is because it is not within the scope of legitimate legislative authority to pass it. Yet other parts of the same act may not he obnoxious to the same objection, and therefore have the full force of law in the same manner as if these several enactments had been made by different statutes. But this must be taken with this limitation, that the parts so held respectively constitutional and unconstitutional must be wholly independent of each other.

But if they are so mutually connected with and dependent on each other as conditions, considerations or compensations for each other, as to warrant a belief that the Legislature intended them as a whole, and that if it could not be carried into effect the Legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional or connected, must fall with them.” Applying this doctrineto the statute in question, we find, on a review of it, nearly every single provision of it in plain contravention of the Constitution.

Section three declares, that in all cases where lands are claimed under and by virtue of a patent, the right of a party claiming under the patent shall be deemed to begin at the date of the patent, and he shall not be entitled to recover for the use and enjoyment of such land prior to the date. Ho exception is made for cases of a legal title held under Mexico, or a perfect equity accompanied with possession; but the

section is a sweeping process of confiscation and destruction of all rights of property, or the use or enjoyment of it, and of all remedies for the invasion of it existing prior to the date of the patent. Hot only this, but even those rights founded upon the antecedent claim, and which are necessary to be acknowledged in order to protect the patentee by relation from intervening claims, are also ignored. While the Legislature could not destroy the patent, it has assumed the prerogative of destroying all the bases upon which it rests, and all the titles derived from Mexican authorities.

The subsequent sections provide for the defenses that may be interposed in suits upon the patent; as by offset and appraisement of improvements by tenants in possession, etc.; and these sections have already been pronounced unconstitutional by this Court. Then comes the eleventh section, which renews the subject of the title. “

Section 11. Ho action of ejectment or other action to recover the possession of lands shall hereafter be sustained, unless such action shall have been commenced within two years after the cause of action accrued ; and the cause of action shall be construed to commence at the date of the issuance of a patent as against all persons settled upon and occupying any part of the land patented, unless such persons hold or claim to hold under the patentee or his grantees ; provided, however, that infants and married women shall have the same time allowed them to begin their action, after their disability shall be removed, as is by this

section allowed.” This

section gives the rule as to the time of commencing actions. But it does more. It defines what constitutes a cause of action in ejectment, and when and how it shall accrue. It must be taken in connection with

section three, to which its matters relate. Taking the two sections together, this is the sum: 1st, whenever a patent issues, the sole claim of the holder shall rest on the patent, and his entire rights in respect to the land shall be limited by the patent and refer to its date ; 2d, no action of ejectment shall be brought except within two years ; and 3d, this accrual of the right is, in judgment of law, only from the date of the patent.

So far, then, an arbitrary rule is made for all cases, at least arising under a patent, that suits are .to be brought within two years of the date of the patent, or else no use can be made of the patent, and it becomes a nullity for all purposes of title or as evidence of title.

It prescribes, in other words, a rule absolutely impracticable ; for it makes no exception of the time of receiving the patent, or for legal or other delays, by injunction or otherwise, in getting it, or being able to set it up ; nor does it make any exception in cases where the defendant intruded upon the premises or obtained possession after the issuance of the patent, or after the two years. It is true, that in the

section the words are used, “ as against all persons settled upon or occupying any part-of the land patented ; ” but this language does not import, nor was it intended to import, that these persons, to be within the benefit of the section, must be on the land at the date of the patent. It might be so construed, if the statute did not in its main scope and body indicate a different purpose, and if the intent were plain that this act was designed as a general Statute of Limitations in respect to actions for real estate.

But the whole act shows a purpose of hostility to land grants, the strongest and most stringent provisions having been inserted in the act against such claims. The title of the act is : “ For the Protection of Actual Settlers and to Quiet Land Titles.” Besides, to strain the language “ settled upon,” etc., to mean so settled at the date of the patent, would leave the absurdity of providing for suit on a patent within two years, as against an occupant who was such at the date of the patent, and yet no limitation to actions upon the patent against those who came the same day or the next three years on the land.

Moreover, the proviso is, that married women and infants shall have the same time allowed to begin their actions, after their disability shall be removed, as is by this

section allowed. This surely does not mean that the infant shall have two years after he gets of age—which might not be for twenty years—to bring an action against those settled on the land at the date of the patent, and none others. The object of the Legislature becomes evident when we look to the first and subsequent sections. This

section declares that all lands in this State shall be deemed as public lands until title is shown to have passed from the Government to private parties. The Government here meant is the Government of the United States. It was probably supposed that the common law rule prevailed, that ejectment could not be maintained except upon a legal title, and this title was declared by this - act to be in the United States.

If the party plaintiff was not in possession, he could only, as a general rule, recover on his paper title, and though he held a Mexican grant, this would not, under the act, avail him, for it is declared that the land shall be deemed and regarded as the land of the United States, and therefore the Mexican grantee could not recover it against a settler entering upon it as such.

Having disposed of all present Mexican titles, the Legislature designed to make the scheme of settlement of titles complete, by prescribing what was to be done with the titles which the Mexican grantee should or might acquire in future ; and the eleventh section, in the execution of this scheme proceeded to declare that while a cause of action might accrue from a patent, yet that it should only accrue from the date of the patent, and that cause should not exist unless suit were brought within two years from such date.

And even when enforced within that time, the conditions as to improvements, rebatements and recoupments should be encountered as specified in the body of the act. But no such partial meaning as that now sought to be interpolated was designed by the Legislature to be given in the eleventh section.

The act was intended to be comprehensive, and go the full length of the language used, and to limit and define the full extent of the operation of the patent, and its effect as a cause of action against all settlers, and not as to a particular class of them, viz: those at the date of a patent in occupation of patented lands. Indeed, it is questionable whether the -Legislature had any constitutional power to make any such discrimination as that insisted on, for this would be making a partial operation of a general law.

It would be declaring that there was one Statute of Limitations for one class of trespassers, and another for another class standing in the same category. Again: the

section makes the fact that a possessor occupied “ any part of the land patented,” sufficient to give the accrual of the cause of action as to him from the date of the patent, without any limitation as to the part occupied. This might, under some circumstances, be considered a mere inadvertence, and if the general intent were clear, we might be disposed to hold the operation as limited to such lands as the occupant possessed; but the scope and spirit of the whole act forbid such construction. That the whole of the act ignoring Mexican grants is flagrantly unconstitutional, there can be no question.

These grants are titles within the full protection, not only of a solemn treaty, but of the Constitution of the United States and the Constitution of the State of California. This view leaves the statute ineffectual as to such grants, and also as to a possessory title. Many of these grants are legal titles, and most of them are, certainly when united to possession, such equitable titles as are entitled to proetction, and give a right to a possessory action in Courts of Justice.

It is not necessary to decide whether the Legislature has any power to discriminate, by special or general law, between holders of one class or description of legal titles, and the holders of another class or description ; to say that A’s claim to his estate shall be governed by one set of rules, and B’s by another; that a Mexican title, so called, shall be, though of the same grade, governed by one Statute of Limitations, and an American title in law of no higher dignity, shall be governed by another; whether this does not break the uniformity of the operation of a general law which the Constitution enjoins.

This serious question becomes unimportant here, for the whole question of the constitutionality of the eleventh

section is presented in another and perhaps a clearer light. We have seen that the rule is, that a particular clause in an unconstitutional act can only be saved when it is unconnected with the general purpose, but stands of itself as an independent provision. It follows from what we have said that this eleventh

section is not an independent provision, constitutional in itself, and capable of being enforced without reference to the body of the act. It is simply auxiliary to the general unconstitutional scheme of which it forms a part. It is itself, by its very terms, according to their natural and intended construction, as plainly unconstitutional as the preceding sections.

Nor can it be supposed that the Legislature, if it had known that the other provisions would be held void, would have passed this section; for by the law in force, Mexican grantees have five years after the cause of action accrued within which to sue, and these grants were attempted to be ignored. Can it be supposed that the Legislature, recognizing these grants as titles, would have prescribed for them a different and longer period of limitation than for patents of the Federal and State Governments ?

Is it to be believed that the Legislature would by this act have elevated a Mexican grant above a Federal patent, when this very act shows a purpose to ignore and discard the Mexican title—or that the Legislature would have given five years within which to sue on a mere right of possession, without any paper title, and limited a patent, the most solemn and imposing muniment of title, to two years from its date f Can we infer, when it passed this act of thirteen sections, that it would have been willing to pass the eleventh

section if all the other, and those the material sections, had been stricken from the bill; and then have violated the Constitution by passing

an act the subject of which was not expressed in the title ? If, however, we are right in our idea of the meaning of the eleventh section, when taken in connection with the whole scope and effect of the act, it is simply a legislative edict, that no cause of action shall be maintained on a patent after two years have elapsed from the issuance of it, the effect of which would be to give no legal protection after that time to a title so derived; and this would be to impair, if not destroy, the obligation of the contract.

It is possible that a constitutional effect might be given, by construction, to this section, by imposing an arbitrary limitation upon its obvious and intended meaning; but we have no power to make such construction.

For no case can be found in which a provision in a statute, the body of which statute is unconstitutional in its whole scope and effect, and which provision is, according to its fair construction, also unconstitutional in its general effect, has yet been declared valid, because a partial operation might be given to such isolated provision by the Courts, and such operation not be obnoxious to constitutional exceptions. If

an act, unconstitutional throughout, were passed, denying trial by jury to all persons in the State, the Courts would not hold it saved by applying it to a class of persons not citizens, as to whom such a provision might have been constitutionally made, if such were the sole intent. We feel the less hesitation in removing .this last relic of unconstitutional and oppressive legislation upon the subject of land titles from the statute books, for the reason that the Limitation of five years is a shorter period than that allowed, it is believed, in any other State; and that to give effect to an isolated provision of this sort, found in

an act whose substantial provisions have already been declared invalid, would only produce confusion and uncertainty. Legislation which injuriously assails vested rights of property by arbitrary and oppressive enactments, however plausibly it may be commended because of temporary interests, or particular instances of hardship, is in the end in the highest degree hurtful to the general society, since it shakes that sense of security and destroys that protection to the acquisitions of labor from which proceed the wealth and progress of a State, and the peace, industry and welfare of its people.

Or, as the most brilliant writer of his time expresses it: “ That statesman must be short-sighted, indeed, who imagines that what makes property insecure can really make society prosperous.” Judgment reversed and cause remanded.