Now, it is to be observed that the jurisdiction of the United States district court never attached in the Sepulveda case, it being held that the mere taking and dismissing the appeal without action thereunder conferred none; that the decree sought to be enforced was the decree of the Board, over which the court had no control whatever. But in the Napa grant there was an appeal from the decree of the Board to the United States district court, where a hearing was had and action taken, as shown by certified copy of the decree of the court filed in this cause, as follows:

District Court of the United States, Northern District of California, Stated Term, February 23, 1857.

THE UNITED STATES v. OTTO H. FRANK.

This cause coming on to be heard upon the transcript of the record therein before the Board of Commissioners for the ascertainment and settlement of land titles in California, and upon the pleadings and evidence on file in this court, and it appearing to the court that said record was duly filed, argument of counsel on the part of claimant and of the United States having been heard, it is now finally adjudged and decreed that the decree of said Board confirming the claim of claimant Otto H. Frank be and the same is hereby affirmed; and it is adjudged and decreed that the claim of said Otto H. Frank is a good and valid claim, and the same is hereby confirmed.

Then follows a description of the land confirmed, which is the same as that used in the decree of the Board.

Afterward, on June 12, 1858, when the appeal which had been taken by the United States district attorney to the supreme court was dis missed, the following was entered:

"The Attorney General of the United States having given notice that appeal will not be prosecuted in this case, and a stipulation to that effect having been entered into by the United States attorney: on motion of the district attorney it is ordered, adjudged and decreed that claimant have leave to proceed under the decree of this court heretofore rendered in his favor as under final decree."

It is thus made plain that the jurisdiction of the district court had attached to the Napa grant; that the final decree, under which alone survey could be made, and was made by Tracy, was the decree of the United States district court, not the decree of the Board; and therefore, in the language of the supreme court in the Fossatt case (p. 450), "the power of the district court, under the acts of Congress, does not terminate until the issue of patent, conformably to the decree."

There is nothing to be found in the act of 1860 inconsistent with the jurisdiction above asserted. That act applied to surveys of private and claims thereafter made, or to those theretofore made which at the time of its passage were pending in court on contest. All surveys thereafter made were to be published, and could be ordered into court for revision, on the application of any party deemed by the court to

have a proper interest in the matter. That tribunal, after full examination and hearing, was authorized to set aside, annul, amend, or affirm the survey; and when the survey, whether original or amended, was approved by the court, plat thereof was to be sent to the Commissioner of the General Land Office, who was to issue patent thereon.

There is nothing in the record relating to the ordering of the Tracy survey into court to show that such action was taken under the act of 1860, further than the statement of the district attorney in his application that the survey had been published under the provisions of that act. With this exception that act is not mentioned in the proceedings, and consequently there is no record evidence to show, as is asserted, that said survey was ordered into court under the supposition that the act of 1860 authorized such action, rather than that it was brought into court to be reformed under the provisions of the act of 1851, as construed in the Fossatt case above quoted.

But it is immaterial whether or not the district attorney, or the court, took action in accordance with an authority supposed to be, but which was not, conferred by the act of 1860, if in point of fact the court did have jurisdiction of the survey, and its action was in accordance with its powers. Of the jurisdiction and power of the court to review and reform the survey, I think it has been shown there can be no doubt, under the ruling in the Fossatt case.

After the survey of Frank's part of Napa had been returned into court and was pending there, Congress passed the act of July 1, 1864 (13 Stat., 332), by which the act of 1860 was totally repealed and the jurisdiction of the authorities of the land office was re-established in relation to the surveys of private land claims in California, except as to causes pending undisposed of in the United States courts. With regard to the latter class in the second section was a proviso

"That where proceedings for the correction or confirmation of a survey are pending, on the passage of this act, in one of said district courts, it shall be lawful for such district court to proceed and complete its examination and determination of the matter, and its decree thereon shall be subject to appeal to the circuit court," etc.

At the time of the passage of said act the survey of Frank's part of Napa, which had been returned into court more than two years before on an application to reform it, was yet upon the docket undisposed of. Consequently in the language of the law "proceedings for the correction" of the same were then "pending," and the provisions of the new act became at once applicable thereto; and the new jurisdiction thereby conferred upon the court attached, even though it had no jurisdiction before that time.

There is no force in the contention that "pending" here means "properly" pending. Such construction would be to import a word into a statute, plain and unambiguous on its face, in order to change its meaning. Had Congress enacted that all cases involving private

land claims "pending" in the district court should be dismissed or transferred to the circuit court, would it be contended that before such dismissal or transfer the district court should investigate and determine what cases were "properly" pending therein, dismiss or transfer only such, while cases held to be improperly pending would, despite the act of Congress, remain on the docket? Secretary Kirkwood maintains this view with great force in the Alisal case, referring to the ruling of the supreme court in the case of United States v. Halleck, (supra).

In the latter case, after confirmation by the Board, appeal was taken to the district court and dismissed, with leave to proceed under the decree of the Board as under final decree. Survey was made and approved in 1857 by the surveyor general and the Commissioner of the General Land Office, but disapproved by the Secretary of the Interior, and a new survey ordered. In November, 1859, the district court, construing the Fossatt case, (supra,) decided shortly before, to confer such power, on application, ordered the new survey to be returned into court for revision. In 1861 the court set aside said survey and ordered another, but, on rehearing, approved the original survey. From this action an appeal was taken to the supreme court.

This state of facts shows a case, where the final decree was that of the Board, and not of the court, and therefore the latter tribunal had no jurisdiction so to act when the survey was ordered into court, as was held in the Sepulveda case. But the supreme court, in affirming the action of the district court in the Halleck case, say, that inasmuch as the new survey had been returned into court

"And proceedings upon the exceptions were pending on the passage of the act of June 14, 1860, whatever question might be raised as to the jurisdiction of the district court to supervise the survey previous to that act, there can be none since its passage. That act applies not merely to surveys subsequently made, but also to such surveys as had been previously made and approved by the surveyor general, and returned into the district court upon objections to their correctness."

Surely there ought to be no further question as to the right of the district court to order a new survey in the Napa grant, as it did by its decree of January 11, 1869, the language in the act of 1860 and that in the act of 1864 being the same, and both acts being in pari materia.

To this extent I concur in the views of Secretary Kirkwood in the Alisal case, but dissent from his conclusion that the approval of the ordered survey by the court was conclusive on the Land Department, and patent should be issued in accordance with said approved survey. Under the act of 1851, as construed by the Fossatt case, and under the act of 1860, as construed by the Halleck case, where the jurisdiction of the United States district court had attached, and there was power to reform the survey of a private land claim, the control of that tribunal over the cause continued, in the first instance, in the language of the Fossatt case, "Until the issue of a patent conformably to the decree;" and in the other instance, in the language of the act itself, the decree

of the court approving a survey had "the same effect and validity in law as if a patent for the land, so surveyed, had been issued by the United States."

But the act of 1864 changed this; and took away all jurisdiction over surveys of private claims from the courts, as was said before. And whilst authorizing the court, in pending cases, "to proceed and complete its examination and determination of the matter" of the confirmation or correction of surveys, by the third section expressly provided that, when in such case a new survey is ordered, either by the district court, or the circuit court, on appeal therefrom," the subsequent survey of the surveyor general shall be under the supervision of the Commissioner of the General Land Office, and not of the district or circuit court of the United States."

In the face of this plain and mandatory language of the statute, withdrawing and emphatically prohibiting the exercise of such jurisdiction, my predecessor, Secretary Kirkwood, held in the Alisal case that the court had power to and did properly approve the new survey. I can but think that when said decision was written this provision of the third section was overlooked, or not duly considered.

Entertaining these views, I must decide that the United States district court had authority to order into court the survey of Frank's part of the Rancho Napa, independent of the act of 1860; that said cause being therein "pending" at the time of the passage of the act of 1864, the new jurisdiction thereby conferred at once attached; and the court had full power to revise the Tracy survey and order a new one, as it did. But, when this was done, the power of the court was exhausted and its further action in approving the Dewoody survey was simply without its jurisdiction, and in violation of the clear mandate of the law. Like any other act-coram non judice-done without authority, it has no binding efficacy whatever, and the claimant or the officers of this Department are no more bound by it than they would have been if the court had ordered the land to be sold and the proceeds appropriated to the payment of the public debt. Cooper v. Reynolds (10 Wall., 315).

It is insisted in behalf of Frank that whatever might be the binding efficacy of the action of the district court otherwise, it should not affect him or his rights, because he was no party to the proceedings therein, having had no notice of the same.

According to the views heretofore expressed, the district court never lost the jurisdiction of this cause, which it acquired on appeal, when it undoubtedly had jurisdiction both of the person and the subject matter. The subsequent proceedings in relation to the survey were but a continuation of said case, for the purpose of making the survey conform to the decree, as the court had a clear right to do, under the Fossatt decision. The act of Congress is silent as to what notice, if any, is required to be given when a survey is ordered into court, and there is nothing in the record to throw any light on this point. Considering the nature

of the case, this objection of Frank is not to the jurisdiction of the court, but to the regularity of its proceedings; for these matters affecting the surveys of private land claims are in the nature of proceedings in rem, as was held in Henshaw v. Bissell, 18 Wall., 268. If only alleged irregularity, the jurisdiction of the court being complete, every presumption is against it, the general rule being that in courts of record all things are presumed to have been rightly done. See Miller v. United States (11 Wall., 299). On this question the supreme court, in that case, says:

"In courts of limited jurisdiction there is a presumption against jurisdiction, but when that appears they are entitled to the same presumptions in favor of their action as other courts are. The district and circuit courts are of limited jurisdiction, but they are not inferior courts, and they are therefore entitled to the same presumptions in their favor. Those presumptions are that the court, having jurisdiction, and having entered a judgment, did everything that was necessary to warrant its entry of the judgment. Undoubtedly the contrary may be shown in a court of error, but the burden of showing it is upon him who alleges error, the legal intendment is against him."

It is not necessary to pile up authorities to sustain a position so well settled.

Therefore if Frank wants to show that he no had notice of and was no party to the proceedings in the district court, whether its jurisdiction attached before or only after the passage of the act of 1864, he must make the fact properly apparent in some other way than the one adopted, namely: the filing of an affidavit that he had no such notice. Thompson v. Tomline (2 Peters, 165); Voorhees v. Bank of United States (10 Peters, 173).

In the case under consideration, a transcript of the whole record of the proceedings in court, in relation to the survey, is not filed, but only detatched portions, containing the application of the district attorney to have the survey ordered into court for correction; the order of the court thereon; service on surveyor-general; the order of the court directing amendment of survey, and its order approving the amended survey. In none of these papers is there anything to show that Frank was not notified or was not present. Indeed, in the decree ordering a new survey there is language from which it would be plainly inferable that Frank was in court and heard through counsel. The decree says: "This cause coming on this day to be heard was argued by counsel and thereupon, and in consideration thereof, the attorneys for the intervenors and the district attorney being present, and no one objecting, it is ordered," etc.

The inference here would seem to be that on argument of counsel, other than those for the United States and the intervenors, who being present and not objecting, the amendment was ordered. Inasmuch as there could be only Frank, the claimant, the United States and intervenors interested in such proceeding, the supposition would naturally