Lest this deliberate opinion, fortified by the Court's reasoning, should be regarded as an obiter dictum, it may be well also to bear in mind the view taken in the above case of the United States vs. Hare: "The power of the city to dispose of the property was, after the admission of California into the Union, subject to the control of the Legis lature of the State. The Legislature could restrain or enlarge, at its pleasure, the authority of the agents of the city over the property, and could authorize a transfer of the title through the Commissioners of the Sinking Fund as well as in any other way, or through any other body. (Payne & Dewey vs. Treadwell, 16 Cal., 233, and authorities there cited.) The undersigned believes it is with sound reason he has been led to doubt the power of Congress, in the year eighteen hundred and sixtysix, if ever, to create this peculiar (by some treated as exclusive) trust, in favor of settlers, without grant, on these pueblo lands, in contradis tinction to the inhabitants at large, and equally to doubt the right or duty of the Legislature of the State to execute it, merely as such; but conceding that there may well be equitable circumstances entitling such settlers to a degree of consideration, in a general distribution, this is measurably provided for by the minority substitute, and might be extended upon proof of the facts. Although many of the rules prescribed by the ancient laws, as to sale or settlement of the lands of pueblos, could be of service even now, they are considered no longer rigorously binding, and time would be wasted in the further discussion of them. The whole matter is in the hands of the Legislature. All will agree that the best interests of the people of San Francisco will be eminently promoted by a final adjustment of the controversy, on principles having due regard to all classes, at this session. BENJAMIN HAYES. |
