issued, is to be considered as a surrender by the United States of all interest in the land described in the patent.74 The confirmation of a Mexican grant as well as the issue of a patent thereunder is operative in favor of the confirmee only and of those who claim under him. It establishes the legal title, but if in the presentation of the claim the confirmee acted in a fiduciary capacity, or with the intention of defrauding the real owner, the transfer of the legal title to the person equitably entitled to hold it will, upon a proper proceeding, be decreed by a court of equity.75 A bill in chancery to set aside, on the ground of fraud, a judgment or decree between the same parties rendered by a court of competent jurisdiction will be sustained only for frauds extrinsic or collateral to the matter tried by the first court. A fraud which was an issue in the first suit cannot be considered.76

§ 293.

Other statutes.-In 1854 Congress passed an act relating to public lands in New Mexico, which in section 8 provided

3 Fed. Cas. No. 1759; United States v. Payson, 1 Cal. Law J. 325, 27 Fed. Cas. No. 16,016; San Francisco v. United States, 4 Saw. 553, 21 Fed. Cas. No. 12,316; Mott v. Smith, 16 Cal. 550; Bernal v. Lynch, 36 Cal. 143; Gregory v. McPherson, 13 Cal. 574; Kimball v. Semple, 25 Cal. 454; Soto v. Kroder, 19 Cal. 87; Clark v. Lockwood, 21 Cal. 220; Mahoney v. Van Winkle, 21 Cal. 576.

"Beard v. Federy, 3 Wall. 478, 18 L. ed. 88; United States v. Conway, 175 U. S. 60, 20 Sup. Ct. Rep. 13, 44 L. ed. 72; Manning v. San Jacinto Tin Co., 7 Saw. 418, 9 Fed. 726; Hayner v. Stanly, 8 Saw. 214, 13 Fed. 217; Tripp v. Spring, 5 Saw. 209, 24 Fed. Cas. No. 14,180; Steinback v. Perkins, 58 Cal. 86; Waterman Smith, 13 Cal. 373; Pioche v. Paul, 22 Cal. 111; Waterman v. Smith, 13 Cal. 373; Hart v. Burnett, 15 Cal. 530; Miller v. Dale, 44 Cal. 578; Cruz v. Martinez, 53 Cal. 239; Carey v. Brown, 58 Cal. 180; Turner v. Don

V.

nelly, 70 Cal. 604, 12 Pac. 469; Adair v. White, 85 Cal. 313, 24 Pac. 663.

De Castro v. Fellom, 135 Cal. 225, 67 Pac. 142. And see Los Angeles v. Pomeroy, 125 Cal. 420, 58 Pac. 69; Byrne v. Alas, 74 Cal. 639, 16 Pac. 523; Mound City Land etc. Assn. v. Philip, 64 Cal. 497, 2 Pac. 270; McDonald v. McCoy, 121 Cal. 55, 53 Pac. 421; Sherman v. McCarthy, 57 Cal. 507; Hartley v. Brown, 51 Cal. 465; Schmitt v. Giovanari, 43 Cal. 617; O'Connell v. Dougherty, 32 Cal. 462; Salmon v. Symonds, 30 Cal. 301; Emeric v. Penniman, 26 Cal. 124; Estrada v. Murphy, 19 Cal. 272; Clark v. Lockwood, 21 Cal. 220; United States v. Covilland, 1 Black (U. S.), 339, 17 L. ed. 40; Carpentier v. Montgomery, 13 Wall. (U. S.) 480, 20 L. ed. 698; Santa Clara Min. Assn. v. Quicksilver Min. Co., 8 Saw. (U. S.) 330, 17 Fed. 657; Miller v. Dale, 92 U. S. 473, 23 L. ed. 735.

TO United States v. Throckmorton, 98 U. S. 61, 25 L. ed. 93. See, also,

that: "It shall be the duty of the Surveyor-General, under such instructions as may be given by the Secretary of the Interior, to ascertain the origin, nature, character, and extent of all claims. to lands under the laws, usages, and customs of Spain and Mexico; and, for this purpose, may issue notices, summon witnesses, administer oaths, and do and perform all other necessary acts in the premises. He shall make a full report on all such claims as originated before the cession of the territory to the United States by the treaty of Guadalupe Hidalgo, of eighteen hundred and forty-eight, denoting the various grades of title, with his decision as to the validity or invalidity of each of the same under the laws, usages, and customs of the country before its cession to the United States; and shall also make a report in regard to all pueblos existing in the Territory, showing the extent and locality of each, stating the number of inhabitants in the said pueblos, respectively, and the nature of their titles to the land. Such report to be made according to the form which may be prescribed by the Secretary of the Interior; which report shall be laid before Congress for such action thereon as may be deemed just and proper, with a view to confirm bona fide grants, and give full effect to the treaty of eighteen hundred and forty-eight between the United States and Mexico; and, until final action of Congress on such claims, all lands covered thereby shall be reserved from sale or other disposal by the Government, and shall not be subject to the donations granted by the previous provisions of this act.'' 77

In 1870 Congress provided that it should be the duty of the surveyor-general of Arizona, "under such instructions as may be given by the Secretary of the Interior, to ascertain and report upon the origin, nature, character and extent of the claims to lands on said territory under the laws, usages and customs of Spain and Mexico; and for the purpose he shall have all the powers conferred, and shall perform all the duties enjoined upon the surveyor-general of New Mexico by the eighth section" of the act above cited." In 1891 Congress established a court to be

78

San Pedro etc. Co. v. United States, 146 U. S. 120, 13 Sup. Ct. Rep. 94, 86 L. ed. 912; United States v. San Jacinto Tin Co., 125 U. S. 273, 8 Sup. Ct. Rep. 850, 31 L. ed. 747.

"10 U. S. Stats. at Large, 309, sec. 8.

78 16 Stats. at Large, 304.

called the court of private land claims, to have jurisdiction in the hearing and decision of private land claims "within the limits of the territory derived by the United States from the Republic of Mexico and now embraced within the territories of New Mexico, Arizona or Utah, or within the states of Nevada, Colorado or Wyoming, by virtue of any such Spanish or Mexican grant, concession, warrant or survey as the United States are bound to recognize and confirm by virtue of the treaties of cession of said country by Mexico to the United States, which at the date of the passage of this act have not been confirmed by act of Congress, or otherwise decided upon by lawful authority, and which are not already complete and perfect." 79 It was held that this court had no jurisdiction over a claim for the remainder of the land included in an alleged Mexican grant, which has been allowed only in part by act of Congress.80 Nor did the act give the court jurisdiction over an inchoate claim incapable of assertion as an absolute right against the government of either Spain or Mexico, and subject to the uncontrolled discretion of Congress.81

§ 294. Preventing incorporation of ceded territory into United States. The treaty-making power may insert in the treaty of cession conditions which will preclude, without the consent of Congress, the incorporation into the United States of territory acquired by treaty. If the treaty is not repudiated by Congress,

79

26 Stats. at Large, 854, March 3, 1891.

Las Animas Land Grant Co. v. United States, 179 U. S. 201, 21 Sup. Ct. Rep. 92, 45 L. ed. 153.

$1 United States v. Santa Fe, 165 U. S. 675, 17 Sup. Ct. Rep. 472, 41 L. ed. 874. For various other cases involving this act, see Ainsa v. United States, 161 U. S. 208, 16 Sup. Ct. Rep. 544, 40 L. ed. 673; United States v. Sandavol, 167 U. S. 278, 17 Sup. Ct. Rep. 868, 42 L. ed. 168; Cessna v. United States, 169 U. S. 165, 18 Sup. Ct. Rep. 314, 42 L. ed. 702; United States v. Conway, 175 U. S, 60, 20 Sup. Ct. Rep. 159, 44 L. ed. 72; Ely

v. United States, 171 U. S. 220, 18 Sup. Ct. Rep. 840, 43 L. ed. 142; United States v. Camou, 171 U. S. 277, 18 Sup. Ct. Rep. 855, 43 L. ed. 163; 184 U. S. 572, 22 Sup. Ct. Rep. 505, 46 L. ed. 694; Perrin v. United States, 171 U. S. 292, 18 Sup. Ct. Rep. 861, 43 L. ed. 169; Real de Dolores Del Oro v. United States, 175 U. S. 71, 20 Sup. Ct. Rep. 17, 44 L. ed. 76; Ainsa v. New Mexico etc. R. Co., 175 U. S. 76, 20 Sup. Ct. Rep. 28, 44 L. ed. 78; United States v. Chavez, 175 U. S. 509, 20 Sup. Ct. Rep. 159, 44 L. ed. 255; United States v. Martinez, 184 U. S. 441, 22 Sup. Ct. Rep. 422, 46 L. ed. 632; Reloj Cattle Co. v. United

such conditions will have the force of the law of the land. The treaty by which the United States acquired Porto Rico and other territory providing that the civil rights and political status of the native inhabitants should be determined by Congress, manifested an express purpose to leave the status of the territory to the determination of Congress, but also to prevent the treaty from having a contrary effect.82

Congress has power by legislation to give effect to the treaty by which the United States agreed to assume and discharge the obligations that might, under international law, result from its occupation of Cuba or the protection of life and property in that island.83

§ 295. Inhabitants of ceded territory as citizens.-The treaties by which Louisiana, Florida, California and Alaska were acquired made the native-born inhabitants of those territories citizens of the United States. The treaty of Paris, by which Porto Rico was acquired, contained no such provision, but, on the contrary, declared: "The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress." Congress passed, in April, 1900, an act in conformity with this clause in the treaty declar

States, 184 U. S. 624, 22 Sup. Ct. Rep. 499, 46 L. ed. 721; Ainsa v. United States, 184 U. S. 639, 22 Sup. Ct. Rep. 507, 46 L. ed. 727; United States v. Baca, 184 U. S. 653, 22 Sup. Ct. Rep. 541, 46 L. ed. 733; United States v. Green, 185 U. S. 256, 22 Sup. Ct. Rep. 640, 46 L. ed. 898; Lockhart v. Wills, 9 N. Mex. 263, 50 Pac. 318.

For decisions under other acts relating to land claims in Arizona and New Mexico, see Pinkerton v. Ledoux, 129 U. S. 346, 9 Sup. Ct. Rep. 399, 32 L. ed. 706; Tameling v. United States Freehold etc. Co., 93 U. S. 644, 23 L. ed. 998; Interstate Land Co. v. Maxwell Land Grant Co., 139 U. S. 569, 11 Sup. Ct. Rep. 656, 35 L. ed. 278; Shaw v. Kellogg, 170 U. S. 312, 18 Sup. Ct. Rep. 632, 42 L. ed. 1050;

Central Colorado Imp. Co. v. Pueblo County, 95 U. S. 259, 24 L. ed. 495; Maxwell Land Grant Case, 121 U. S. 325, 7 Sup. Ct. Rep. 1015, 30 L. ed. 949; 122 U. S. 365, 7 Sup. Ct. Rep. 1271, 30 L. ed. 1211; Russell v. Maxwell Land Grant Co., 158 U. S. 253, 15 Sup. Ct. Rep. 827, 39 L. ed. 971; Maese v. Herman, 183 U. S. 572, 22 Sup. Ct. Rep. 91, 46 L. ed. 335; United States v. Cleveland etc. Cattle Co., 33 Fed. 323; Chaves v. Whitney, 4 N. Mex. 178, 16 Pac. 608; Colorado Fuel Co. v. Maxwell Land Grant Co., 22 Colo. 71, 43 Pac. 556.

$2 Downes v. Bidwell, 182 U. S. 244, 21 Sup. Ct. Rep. 770, 45 L. ed. 1088.

3 Neely v. Henkel, 180 U. S. 109, 21 Sup. Ct. Rep. 302, 45 L. ed. 448.

ing: "That all inhabitants continuing to reside therein who were Spanish subjects on the eleventh day of April, 1899, and then resided in Porto Rico, and their children born subsequent thereto, shall be deemed and held to be citizens of Porto Rico, and as such entitled to the protection of the United States (excepting such as had preserved their allegiance to Spain), and they, together with such citizens of the United States as may reside in Porto Rico, shall continue a body politic under the name of 'The People of Porto Rico,' with governmental powers as hereinafter conferred, and with power to sue and be sued as such." unmarried woman who arrived in the United States in 1902, a native of Porto Rico, was detained at the emigrant station, examined by a board of inquiry, and excluded from admission into the United States, upon the ground that she was liable to become a public charge. She presented a petition for a writ of habeas corpus, and the sole question before the court was, Was she a citizen or an alien? The court held that the act of Congress did not operate to naturalize her as a citizen of the United States, and that she remained an alien.84

An

§ 296. Foreign corporations not subjects.-The rule has been recognized that corporations are not subjects within the meaning of treaties. A corporation organized in Great Britain, having its principal place of business in that country, is not a subject of that country within the meaning of a treaty which gives to the subjects of that country the right to do business in any of the states of the Union on the same terms as native citizens.85

§ 297. Effect of treaty on dam in Rio Grande.—It was claimed in a suit brought by the United States to restrain an irrigation company from constructing a dam across the Rio Grande river in the territory of New Mexico, and appropriating the waters of that stream for the purposes of irrigation that the provision of the treaty of Guadalupe Hidalgo of 1848, securing the free and unobstructed navigation of that river, was violated. It was held in the lower court that there was no violation of the treaty, and in the supreme court of the United States it was held that the treaty was not involved. In the lower court it was decided that "In re Gonzalez, 118 Fed. 941.

85 Scottish Union etc. Ins. Co. v. Herriott, 109 Iowa, 606, 80 N. W. 665.