the grant, whereby the premises reverted to the United States and were open to settlement under the town-site law. The proposition that Warwick's settlement was for the benefit of another, or that the place was occupied as a town at and before Warwick's settlement, does not then seem to have been thought of, but they are brought forward at this late day and in this form to defeat and nullify the action of the land department in that contest.

But it appears that even these questions were brought before the department prior to the issue of the patent, and considered by it as upon a motion for a new trial.

On May 11, 1875, the register and receiver forwarded the principal evidence relied on by the plaintiff upon these points to the commissioner, who, on May 29, 1875, submitted the same to the secretary, with a recommendation that the case be opened, which, on September 30, 1875, was refused by the acting secretary. Upon the whole, there is no equity in the bill, or any ground upon which it can be maintained. It is therefore dismissed, with costs. The same decree will be entered in the cases of the following-named plaintiffs against the same defendants: W. F. Deubner, Nos. 489, 490; John Bear, No. 491; George Wolf, No. 492; Frederick Timmerman, No. 493; William G. Webster, No. 494; A. Lobree, No. 495; C. B. Golden, No. 496; William Temple, No. 497.

THE SOUTHERN PACIFIC RAILROAD COMPANY V. PIERPONT ORTON.

CIRCUIT COURT, DISTRICT OF CALIFORNIA.

DECEMBER 15, 1879.

1. SOUTHERN PACIFIC RAILROAD GRANT.-The road, to aid the construction of which a land grant was made to the Southern Pacific Railroad Company by the act of congress of July 27, 1866, incorporating the Atlantic and Pacific railroad company, was intended by congress to be a road connecting with the contemplated Atlantic and Pacific road at such point on said road near the intersection of the thirty-fifth parallel of latitude and the eastern line of the state, as the Southern Pacific Railroad Company should deem most suitable for a railroad line from said point of connection to San Francisco; the said point of connection

and the line of road thence to San Francisco to be determined and located by the Southern Pacific railroad company.

2. LOCATION OF ROAD.-The line of the road designated on the plat thereof, filed by the Southern Pacific Railroad Company in the office of the commissioner of the general land office on January 3, 1867, is located in pursuance of the terms of said act of congress, and is properly located under said act.

3. EFFECT OF GRANT AND FILING PLAT.-The grant made by said act is a present general grant of the quantity of land specified in the act; and immediately upon filing the plat, the general grant became specific, and attached to all the odd sections of land situate within the prescribed limits on each side of the designated line, then owned by the government, to which no other right had attached prior to the filing of said plat.

4. WITHDRAWAL FROM PRE-EMPTION.-Immediately upon the filing of the plat, the odd sections designated were withdrawn from pre-emption or other disposition, by force of the act itself, proprio vigore, without any order of the secretary of the interior, or notice other than that afforded by the filing of the plat itself.

5. SAME. The lands having been set apart to aid in the construction of a railroad, and absolutely and unconditionally withdrawn from pre-emption, no pre-emption right could be acquired in them while so situated, even if the grantee at the time was unauthorized under the state law to take a perfect title.

6. POWER OF SECRETARY TO RESTORE LANDS WITHDRAWN FROM PREEMPTION.-The withdrawal of the lands from pre-emption by the statute being absolute and without conditions, the secretary of the interior had no power to repeal or modify the statute, or restore the lands to their former condition. The withdrawal being unconditional by force of the statute, they could only be re-opened to pre-emption by statutory authority.

7. TITLE OF CORPORATION TO LANDS-TRESPASSERS.-Where a corporation, authorized to receive grants of land for the purposes of the corporation, brings an action against a trespasser to recover possession of lands granted to it, such trespasser will not be heard to question the title of the corporation, on the ground that it had no authority to take them. This is a question between the state and the corporation. S. MISUSE OF CORPORATE FRANCHISE.-Whether a corporation has misused or abused its franchise is a question between the state and the corporation, which can not be raised or litigated in an action between the corporation and private partics.

9. ACT OF APRIL 4, 1870, CONSTITUTIONAL.-The act passed by the legislature of California, April 4, 1870, authorizing the Southern Pacific Railroad Company to change the line of its road, accept the congressional grant of land, and construct its road as provided in the act of congress incorporating the Atlantic and Pacific Railroad Company, was not passed in violation of section 31, article IV of the constitution of California, providing that corporations "shall not be created by special act, except for municipal purposes."

10. CONSTRUCTION OF STATE CONSTITUTIONS.-The settled rule of construction of state constitutions is that they are not special grants of powers to legislative bodies, but general grants of all legislative powers not actually prohibited or expressly excepted. It is equally well settled that the exception must be strictly construed. The construction is strict against those who stand on the exception, and liberal in favor of the government itself.

11. SAME.-Under the established rule of strict construction, applicable to state constitutions, an act of the legislature should never be declared unconstitutional, unless there is a clear repugnance between the statute and the organic law.

12. ESSENTIAL ATTRIBUTES OF A CORPORATION.-The essence of a corporation consists only of a capacity to have perpetual succession under a special denomination, and an artificial form; and to take, hold, and grant property, contract obligations, and sue and be sued by its corporate name; and a capacity by its corporate name to receive and enjoy in common, grants of privileges and immunities.

13. CORPORATION A FRANCHISE.-The right to be a corporation is a distinct, independent franchise, complete within itself, having no necessary connection with other distinct franchises, which are the subjects of legislative grant, and which may, or may not be given to corporations once created, as well as to natural persons, as to the legislature may seem advisable.

14. CORPORATE POWERS, strictly speaking, are such as are peculiar to corporations, and essential to their being, and not such powers as are usually, or may be, possessed and enjoyed indifferently by corporations and natural persons.

15. THE CREATION OF A CORPORATION is the bringing into being of an artificial person having the essential attributes of a corporation—the creation of the distinct and independent franchise called a corporation-which, when created, has a capacity, among other things, by its corporate name, to receive and enjoy such other franchises, privileges and immunities, property and rights, as the legislature itself, or other persons, with its permission, may grant to it.

16. FRANCHISES, ETC., GRANTED TO A CORPORATION.-The granting of independent franchises, other than the specific franchise constituting a corporation, and of other privileges and powers, to a pre-existing corporation, are not acts creative of a corporation, but acts regulating the conduct of the existing corporation in its relation to and intercourse with the public and other persons, natural and artificial.

17. THE GIVING OF AUTHORITY TO CHANGE THE LINE OF ITS ROAD to the Southern Pacific Railroad Company, a pre-existing corporation, by the act of April 4, 1870, is not an act creating a corporation, in whole or in part, and is not the creation of a new corporate power. 18. STATE CONSTITUTIONS-SETTLED CONSTRUCTION.-The settled construction of the provisions of a state constitution by the highest court of the state, when not in conflict with any provision of the constitution of the United States, will be adopted and followed by the national courts, what

ever their opinion may be as to the correctness of such settled construction.

19. CONFLICTING CONSTRUCTIONS.-In 1863, the supreme court of California construed a provision of the state constitution, which construction remained unquestioned by the courts for eleven years, during which time much legislation of a similar character to that in question, and among it that involved in this case, was had, under which important rights had become vested. In 1874, the supreme court, being differently constituted, overruled the prior decision, three of the six justices who sat in the two cases having taken one view, and three the other. The supreme court is now to be again reorganized, with seven members, only one of whom has considered the question as a member of the court of last resort: Held, that the construction is not settled within the rule, and the national courts are at liberty to adopt the view which appears to them correct.

20. AMENDED ARTICLES OF ASSOCIATION were filed by the Southern Pacific Railroad Company, in pursuance of the provisions of a general act of the legislature of California, passed March 1, 1870, applicable to all corporations before created, or to be thereafter created: Held, that if the act of April 4, 1870, is void, the plaintiff had full authority to build the road under said act of March 1, and the amended articles of association, filed in pursuance of its provisions.

21. JOINT RESOLUTION CONSTRUED.-The "actual settlers," whose rights are directed to be saved by the joint resolution of congress, passed June 28, 1870, are those who had settled before, and who had existing vested rights at the date of the filing of the plat, and not those who afterwards settled upon the land. The latter could acquire no rights. The grant being a present grant, which attached to the specific lands at the date of the filing of the plat, congress could not divest the rights of the plaintiff, which had once vested, under the act, upon the filing of the plat, except by proper proceedings upon failure of defendant to perform the conditions subsequent.

22. CAL. STATE TEL. Co. v. ALTA TEL. Co., 22 CAL. 398, AND SAN FRANCISCO v. S. V. WATER WORKS, 48 ID. 493, considered, and the former approved.

Before SAWYER, Circuit Judge.

THIS is an action to recover possession of certain lands situate in Tulare county. The plaintiff claims title under a congressional grant made to aid in the construction of the Southern Pacific railroad, and a patent issued in pursuance of the grant; and the defendant claims as a pre-emptioner.

The Southern Pacific Railroad Company became duly incorporated under the general statute of the state of California of 1861, providing for the incorporation of railroad

companies (Stat. 1861, 607), by filing its articles of association in the office of the secretary of state on December 2, 1865. The act requires, among other things, the articles of association to state "the place from and to which the proposed road is to be constructed, and the counties into and through which it is intended to pass, and its length as near as may be." (Id. 608, sec. 2.) It also provides, that, upon filing the articles, the parties named therein "shall be a body politic and corporate, by the name stated in such articles of association, and shall be capable in law to make all contracts, acquire real and personal property, purchase, hold, convey any and all real and personal property whatever, necessary for the construction, completion, and maintenance of such railroad, and for the erection of all necessary buildings and yards, or places and appurtenances, for the use of the same, and be capable of suing and being sued, and have a common or corporate seal, and make and alter the same at pleasure, and generally to possess all the powers and privileges for the purpose of carrying on the business of the corporation that private individuals and natural persons now enjoy." (Id., sec. 3.)

Section 17, part 1, authorizes "such examinations and surveys for the proposed railroad to be made as may be necessary to the selection of the most advantageous route for the railroad." Part 2. "To receive, hold, take, and convey, by deed or otherwise, the same as a natural person might, or could, do, such voluntary grants and donations of real estate, and other property of every description, as shall be made to it, to aid and encourage the construction, maintenance, and accommodation of such railroad." Part 6. "To cross, join, and unite its railroad with any other railroad, either before or after construction, at any point upon its route," etc. Part 7. "To change the line of its road, in whole or in part, whenever a majority of the directors shall so determine, as is provided hereinafter; but no such change shall vary the general route of such road, as contemplated in the articles of association of such company." Part 8. "To receive by purchase, donation, or otherwise, any lands or other property of any description,