The case was heard by the court of common pleas for Richland county, and by its decree the validity of the assessment and tax was sustained, and the complaint dismissed. On appeal to the supreme court of the state the judgment was affirmed, and to review that judgment the case is brought here on writ of error.

Linden Kent, for plaintiff in error. Wm. E. Earle and N. L. Jeffries, for defendant in error.

*Mr. Justice FIELD, after stating the case, delivered the opinion of the court.

Notwithstanding the several objections taken in the complaint to the assessment and tax upon the railroad companies to meet the expenses and salaries of the railroad commissioners, the argument of counsel on the hearing was confined to the supposed conflict of the laws authorizing the tax with the inhibition of the fourteenth amendment of the constitution of the United States. All other objections were deemed to be disposed of by the decision of the supreme court of the state that the laws complained of are not in conflict with its constitution.

The property of railroad companies in South Carolina is subjected by the general law to the same tax as similar property of individuals, in proportion to its value, and like conditions of uniformity and equality in its assessment are imposed. The further tax laid upon them to meet the expenses and salaries of the railroad commissioners is not in proportion to the value of their property, but according to their gross income, proportioned to the number of miles of their roads in the state. This tax is stated to be beyond any which is levied upon other corporations to meet an expenditure for state officers, and therefore, it is contended, constitutes an unlawful discrimination against railroad corporations, imposing an unequal burden upon them, in conflict with the constitutional*amendment which ordains that no state shall deny to any person the equal protection of the laws. Private corporations are persons, within the meaning of the amendment. It has been so held in several cases by this court. Santa Clara Co. v. Railroad Co., 118 U. S. 394, 6 Sup. Ct. Rep. 1132; Mining Co. v. Pennsylvania, 125 U. S. 181, 189, 8 Sup. Ct. Rep. 737; Railroad Co. v. Beckwith, 129 U. S. 26, 9 Sup. Ct. Rep. 207.

If the tax were levied to pay for services in no way connected with the railroads, as, for instance, to pay the salary of the executive or judicial officers of the state, while railroad corporations were at the same time subjected to taxation upon their property equally with other corporations for such expenses, and other corporations were not taxed for the salaries mentioned, there would be just ground of complaint of unlawful discrimination against the railroad corporations, and of their not receiving the equal protection of the laws. But there is nothing of this nature in the tax in question. The railroad commissioners are charged with a variety of duties in connection with railroads, the

tance in the regulation of those instru ments of transportation. They are invested with the general supervision of all railroads in the state, and are obliged to examine the same, and keep themselves informed as to their condition, and the manner in which they are operated, with reference to the security and comfort of the public, and compliance with the provisions of their charters and the laws of the state. Whenever it appears to them that a railroad corporation has violated any law, or neglected in any respect or particular to comply with the terms of its charter, especially in regard to connections with other railroads, the rates of toll, and the time schedules, they are obliged to give notice thereof to such corporation; and, if the violation or neglect is continued after such notice, to apply to the courts for an injunction to restrain the company complained of from further continuing to violate the law or the terms of its charter; and whenever it appears that repairs are necessary to any such road, or that any addition to the rolling stock or any enlargement or improvement in the stations or station-houses, or any* modification of the rates of fare for transporting freight or passengers, or any change in the mode of operating the road and conducting its business is reasonable and expedient, in order to promote the security, convenience, and comfort of the public, they are required to give information to the corporation of the improvements and changes adjudged to be proper, and, if the company fail within 60 days to adopt the suggestions made, to take such legal proceedings as may be deemed expedient to compel them. It is their duty to listen to complaints against a railroad company made by the authorities of any city, town, or county, and to give its officers due opportunity of explanation, and, if the complaint is sustained, to require the corporation to remove the cause of complaint. They are required to investigate the cause of any accident on the railroad resulting in the loss of life, and of any accident not so resulting, which shall require investigation, and to make annual reports to the legislature of their official acts, including such statements and explanations as will disclose the actual working of the system of railroad transportation in its bearing upon the business and prosperity of the state, with such suggestions as to the general railroad policy of the state, or as to any part thereof, or as to the condi tion, affairs, or conduct of any of the rail. road corporations, as may seem to them appropriate, with a special report of all accidents, and the causes thereof, for the preceding year. All contracts, agreements, or arrangements of any and every nature, made by any railroad company doing business in the state, for the pooling of earnings of any kind with any other railroad company or companies, are to be submitted to the commissioners for their inspection and approval, so far as they may be affected by any of the provisions of the act for securing to all persons just, equal, and reasonable facilities for trans

It was held that a provision for the issuing of bonds by a county in Alabama could not be declared invalid, although it imposed upon one county the expense of an improvement in which the whole state was interested. In such instances, where the interests of the public and of individuals are blended in any work or service imposed by law, whether the cost shall be thrown entirely upon the individuals or upon the state, or be apportioned between them, is matter of legislative direction.

We see no error in the ruling of the court below upon the federal question presented, and the conclusion we have reached renders it unnecessary to consider how far the obligation of the corporation was affected by the alleged amendment made to its charter.

Judgment affirmed.

Justices BRADLEY and GRAY did not sit In this case, nor take part in its decision.

(142 U. S. 161)

KNIGHT V. UNITED LAND ASS'N et al.

(December 21, 1891.)

PUBLIC LANDS-THE LAnd-Office-SURVEYS AND PATENTS-MEXICAN GRANTS-PUEBLO LANDS OF SAN FRANCISCO.

*

1. Under Rev. St. § 441, by which "the secrery of the interior is charged with the supervision of public business relating to the public lands," and sections 453 and 2478, which provide that the commissioner of the general fand-office, "under the direction of the secretary of the interior," shall perform all executive duties respecting the public lands, etc., the secretary of the interior is the supervising agent of the government in matters relating to the sale and disposition of the public lands, the surveying of private land claims, and the issuing of patents thereon, etc., and as such he has power to set aside an order of the commissioner of the general land-office approving a survey of land included in a confirmed claim, and order a new survey. He may exercise this power not only on formal notice or appeal according to the rules of the department, but on his own motion; and his action in such a matter is unassailable in the courts in a collateral proceeding.

*

2. The decree of the United States circuit court confirming to the city of San Francisco, Cal., as successor of a Mexican pueblo, its claim, made under Act Cong. March 3, 1851, to the pueblo lands, described the tract so confirmed as "embracing so much of the extreme upper portion of the peninsula, above ordinary high water mark, on which the city of San Francisco is situated, as will contain an area of four square leagues; said tract being bounded on the north and east by the Bay of San Francisco, on the west by the Pacific ocean, and on the south by a due east and west line drawn so as to include the area aforesaid." Held, that in a survey under the decree the shore line of the bay should be run on the line of ordinary high-water mark, crossing the mouths of all streams running into the bay, and not following the line of high water of any tidal stream or estuary forming an arm of the bay.

3. A survey of the tract, which, in running such shore line of the bay, followed the line of ordinary high tide of Mission creek, a navigable arm of the bay, was approved by the commissioner of the general land office, but his approval was set aside by the secretary of the interior, and a new survey was ordered by the latter, and, under his directions, was made, in which the shore line of the bay was run across the mouth of Mission creek; and the latter survey was approved by the commissioner of the general land-office, and a patent was issued thereon to

the city, following the lines of such latter survey. In ejectment for land lying on Mission creek above the shore line of the bay, and embraced in the patent, but not in the first survey, brought against a defendant claiming title derived from the city under the patent, plaintiffs claimed under a grant of the land from the state tide-land commissioners, as land which had passed to the state, on its admission to the Unlon, by virtue of its sovereignty over all tidelands below the high-water line. Held, that parol evidence that the land was below highwater mark of the creek was not admissible; that the patent, following the decree of confirmation and the final and correct survey of the confirmed claim, was evidence of the title of the city under Mexican laws, and was conclusive, not only as against the government and against all parties claiming under it by title subsequently acquired, but also as against all parties except those having a full and complete title acquired from Mexico anterior to that confirmed by the decree of confirmation.

In error to the supreme court of the state of California. Reversed.

Edward R. Taylor and S. M. Wilson, for plaintiff in error. Chas. N. Fox and Philip G. Galpin, for defendants in error.

Mr. Justice LAMAR delivered the opinion of the court.

u

162

*This was an action of ejectment, brought in the superior court in and for the city and county of San Francisco, Cal., by the United Land Association, a corporation of that state, and one Clinton C. Tripp, against Thomas Knight, to recover block of land in that city bounded by Barry, Channel, Seventh, and Eighth streets, and known as "Block No. 40." The controversy involves an interesting question of title to the property described, the plaintiffs asserting that the premises were below the line of ordinary high-water mark at the date of the conquest of California from Mexico, and, therefore, upon the admission of the state into the Unions? in 1850, iuured to it in virtue of its sovereignty over tide-lands; and the defendant insisting that the lands are a portion of the pueblo of San Francisco, as confirmed and patented by the United States.

The complaint, filed on the 23d of November, 1880, alleged that the plaintiffs were the owners in fee of the premises described, and were entitled to the possession thereof, and that they had been wrongfully dispossessed thereof by the defendant, who continued to hold such unlawful possession, to their damage in the sum of $100, and to their loss of the rents and profits thereof in the sum of $500. Wherefore they prayed a judgment of restitution and damages aforesaid.

The answer consisted of a general denial of all the allegations of the complaint; and the cause, being at issue, was, by stipulation of counsel referred to a ref eree, to take testimony, "try all the issues, and report his findings and judgment thereon."

In obedience to the order of the court the referee tried the case, making an elaborate finding of facts, and concluding, as matter of law, that judgment should go for the plaintiffs. Accordingly, on the 2d of June, 1888, a judgment was entered in the superior court in favor of the plaintiffs. That judgment was afterwards

affirmed by the supreme court of the state on appeal; and, after two separate rehearings, the judgment of affirmance was adhered to by a bare majority of the court, three of the judges dissenting. 85 Cal. 474, 24 Pac. Rep. 823, and 85 Cal. 448, 24 Pac. Rep. 818. This writ of error was then sued out.

It appears from the bill of exceptions that on the trial of the case before the referee the plaintiffs, to sustain the issues on their behalf, introduced evidence tending to show the location of the premises to be as alleged in the complaint, and also a complete and good title in themselves under a grant from the state and certain mesne conveyances, provided the title to the premises was originally in the state, and provided certain deeds (which were also introduced) from the state tide-land commissioners, dated, respectively, November 24 and 27, 1875, were effectual to convey said title. For the purpose of proving title in the state they offered parol testimony to show that in 1854 the premises were below the line of ordinary high-water mark, and that Mission creek (which is an estuary of the Bay of San Francisco, and runs along-side this block) was, at that time, navigable for a considerable distance above them. This evidence was objected to, on the ground that parol evidence was inadmissible to prove the boundary lines of the decree of confirmation of the pueblo lands; but the objection was overruled, and an exception noted.

The plaintiffs then offered in evidence certain documents relative to the confirmation to the city of San Francisco of its pueblo lands, and also the first survey of those lands under the decree of confirmation, which survey, made by Deputy-Surveyor Stratton, approved by the surveyor general of California, and confirmed by the commissioner of the general land-office, did not include the premises in controversy. They also produced a witness who testified that the premises were below ordinary high-water mark, as laid down on such survey. To the introduction of this survey as evidence, and to the parol proof of the location of the premises with reference to the line of high tide, as delineated thereon, the defendant objected, on the ground that the survey was not matter of record; that it did not tend to prove, as between the parties hereto, where the line of high tide was, being res inter alios acta; and that it had been canceled and superseded by another survey subsequently made in accordance with instructions of the secretary of the interior. The ob jection was overruled, the survey was ad- | initted in evidence, and the defendant duly excepted.

The plaintiffs also produced in evidence certain maps made by persons in official station in 1853, 1857, 1859, and 1864, showIng the line of high tide at about the same line as on the aforesaid Stratton survey. Objections were made to these maps as evidence, but they were overruled, and exceptions were noted.

The plaintiffs also introduced in evidence the original minute-book of the board of supervisors of the city and coun

ty of San Francisco, and read a resolution passed by the board on the 23d of December, 1878, that no appeal should be taken from the action of the commissioner, of the general land-office*approving the Stratton survey. Objection was made to this evidence, but it was overruled, and an exception was noted.

The plaintiffs then offered in evidence the deeds from the state land commissioners to one Ellis, (from whom they derived their title,) together with the letter of the attorney general of the state advising the board to dispose of all the tide-lands not in litigation, and where they could ascertain to whom the state title ought to go, in pursuance of the tide-land acts. The deeds embrace the property in dispute. The defendant objected to these deeds on the ground that they were incompetent, in that the board of tide-land commissioners had no power or jurisdiction to make them, and on the further ground that there was nothing to show that the board was advised by the attorney general to make such deeds. The objection was overruled, and an exception was noted. The plaintiffs thereupon rested their case.

The defendant, to sustain the issues on his part, offered in evidence the patent of the San Francisco pueblo lands, regularly issued to that city on the 20th of June 1884, and also the plat of said pueblo lands surveyed under instructions from the United States surveyor general by Deputy-Surveyor Von Leicht in December, 1883, which showed an indorsement of approval by the commissioner of the general land-office, under date of May 15, 1884, and was also indorsed as follows: "The field-notes of the survey of the pueblo lands of San Francisco, from which this plat has been made, are strictly in accordance with the instructions of the honorable commissioner of the general landoffice received with his letter, dated November 25, 1883, as the same appear of record and on file in this office. United States surveyor general's office, San Francisco, California, January 17th, 1884. W. H. BROWN, United States Surveyor Gen eral for California."

It was admitted that the land in ques tion is included within the exterior bound aries of the patent; but the patent was objected to as incompetent to show title in the city of San Francisco, as against grantees of the state of the premises, for the following reasons:

(1) The state of California acquired her title by virtue of her sovereignty on her admission into the Union, and her title could not be overthrown by declarations of the United States, made after title had vested in her.

"(2) That as to lands acquired by virtue of her sovereignty, the state was not the owner of a private land claim, and was not bound to present her claims to the board of land commissioners, organized under the act of congress entitled 'An act to ascertain and settle the private land claims in the state of California, passed March 3, 1851;' nor is she concluded as to her rights by not presenting them as provided in section 13 thereof, nor by any decision on the claim of another person.

The act did not apply to her or her property.

66

(3) The only authority for the patent was a decree of the United States circuit court, which court was not vested with jurisdiction over the state or the property of the state, although it was vested with jurisdiction over natural persons and corporations. Neither the decree nor any proceedings under the decree could affect the title of the state, or furnish evidence against her.

"(4) The state was not a party to the record in the case of The City, etc., v. The United States, nor is she affected as a natural person or corporation would be by a failure to attend before the United States surveyor general and object to a survey, as provided in section 1 of the act of congress approved July 1, 1864, and entitled 'An act to expedite the settlement of titles to lands in the state of California.' But, being a stranger to the entire record and proceeding, the patent is not competent evidence against her or her property.

(5) The first survey is the final adjudication of the land-office of the location of the premises described in the decree, be

cause

"(a) In confirming a survey under the acts of March 3, 1851, and July 1, 1864, the commissioner acts in a special judicial capacity, and his decisions are not appeal. able to the secretary of the interior.

"(b) The city refused to appeal, and this refusal appears in the record, and there was no appeal.

(c) The first confirmed survey is bet. ter evidence of the location in this case than the patent, and the patent is void to the extent that it departs from it.

"(d) The decree confirms to the city only the land above or within the ordinary high-water mark at the date of the conquest.

"The premises are outside that specific boundary; and, as the surveyor general had no authority under the acts of congress to survey, nor the land-office to patent, land not confirmed to the claimant, the decree controls, and the patent is void to the extent that it departs from the specific boundary given in the decree."

The evidence was admitted, but the referee refused to find thereon in favor of the defendant, and an exception was noted.

The defendant also introduced in evidence the judgment roll in a case tried in a state court between this defendant and the city and county of San Francisco, in which a judgment was rendered in his favor in November, 1868, quieting his title to the premises.

That was all the evidence introduced, and upon it the referee found the material facts of the case substantially as follows: The premises in dispute are below ordinary high-water mark as the same existed on the 7th of July, 1846, (the date of the conquest of Mexico,) and are below and outside of a survey of the pueblo claim made by Deputy-Surveyor Stratton, and approved by the surveyor general of California on the 13th of August, 1868, and confirmed by the commissioner of the general land-office, November 11, 1878, but

are within a subsequent survey of the pueblo, made by Deputy-Surveyor Von Leicht in 1884, which was not approved by the surveyor general of California, but was certified by him to have been made in accordance with orders from the secretary of the interior. The patent for the pueblo lands was issued on this second survey, and recited, among other things, the proceedings had in relation to the perfecting of the pueblo title, including the decree of confirmation and the confirmatory acts of congress. The plaintiffs derived their title from the state through certain mesne conveyances, regular and legal ing all respects, while the defendant did not connect himself with the title of the state.

Upon the foregoing facts the referee found as conclusions of law that:

(1) The state of California, upon her admission into the Union, September 9, 1850, became seised in fee of the premises in dispute.

(2) This title subsequently became vested in the plaintiffs, by virtue of certain conveyances described.

(3) This title of the plaintiffs was subject to defeat by the decree of the circuit court confirming the claim of the pueblo, but the premises, being without the confirmed survey of 1878, and outside of the specific boundary given in the decree, remained the property of the state.

(4) "The second [Von Leicht] survey was illegal, because it was not approved by the surveyor general of California, no appeal was taken to the secretary of the interior from the decision of the commissioner of the general land-office approv ing the prior survey, and because the second survey was not retained in the office of the United States surveyor general for ninety days, and no notice of the same was given to enable parties in interest to file protests, as required by law, and because in approving said prior survey said commissioner of the general land-office was acting in a judicial capacity, and his judgment thereon is not reversible, and was not legally reversed;" and,

(5) The description of the premises contained in the patent being in excess of the premises described in the prior survey and in the decree, the patent, to the extent that it covered land of the state not confirmed to the claimant, was invalid, and did not operate to convey the state's title to the premises in controversy.

The judgment of the supreme court of the state was based upon substantially the same grounds as that of the referee, and the correctness of the propositions of law involved therein is drawn in question by this writ of error.

To understand precisely the exact nature of the questions involved in this case a somewhat more detailed statement of; lacts than is contained in the above find-• ings of the referee will be found useful. These facts are not contradictory of those findings, and are recited in former decisions of this court, statutes of the United States and of the state of California, and the records of the interior department, of all of which the court can take judicial notice.

The pueblo of San Francisco has been a