I concur with the Chief Justice in the judgment rendered, and in the general views expressed in the opinion delivered. As the subject is one of so much interest and importance, I had intended giving a separate opinion; but the very full examination of my associate, renders this unnecessary. I will, however, submit the following positions, which I take to be true in themselves:
1. That a government with no limit but its own discretion, is not a constitutional government, in the true sense of the term.
2. That the end and object of creating a Constitution, is to limit, classify, and direct, the powers of the different departments.
3. That a Constitution is a solemn compact, deliberately and freely entered into by a free people as between themselves, by which they limit the powers of their agents, the powers of majorities, and the powers of themselves; that this compact is made in advance, when men are more free from passion and prejudice— when no one can see foresee whether he will fall with the majority or with the minority—when there is no interest to sub-serve, but equal and exact justice—and when the only object is to lay down those fundamental and eternal principles, under the practical application of which, every man may enjoy the rights and privileges of human nature, and the protection and happiness incidental to society well regulated.
4. That there are certain inherent and inalienable rights of human nature that no government can justly take away—that some of these rights have been enumerated in our State Constitu- \ tion, and in the language of that instrument, “ This enumeration^ v of rights shall not be construed to impair or deny others retained! j by the people.”
5. That among the inalienable rights declared by our Constitution as belonging to each citizen, is the right of “ acquiring, possessing, and protecting property.”
6. That this right of “protecting property ” is not the simple right of protection by individual physical force, but the right to protect it by the law of the land, and the force of the body politic.
7. That the question as to what constitutes a title to property must depend for its solution upon .the laws as they exist at the very time when the right accrues.
xei*W8. That the citizen who obeys the laws of to-day, and under •u^h.eir deliberate and solemn sanction acquires a right to property, cannot be deprived of his property, by any retrospective act, passed to-morrow, requiring him to pay for that which, by the existing law, was already declared to be his own.
*179. That if the Legislature could, by such retrospective act, divest rights already legally and lawfully vested, there would be no limit, so far as this inalienable right is concerned, but its own discretion.
10. That for the Constitution to declare a right inalienable, and at the same time leave the Legislature unlimited power over it, would be a contradiction in terms, an idle provision, proving that a Constitution was a mere parchment barrier, insufficient to protect the citizen, delusive and visionary, and the practical result of which would bo to destroy, not conserve, the rights it vainly presumed to protect.
11. That if the Legislature cannot directly take from the citizen that property which the existing law declares to be his, and give it to another, then the law-making power cannot accomplish the same practical end by indirect means.
12. That if this great right could be defeated, simply by varying ' he form- and mere mode of arresting it, then our system would be idle and nugatory, impracticable and unsafe, and wholly unworthy the name of a stable system of constitutional law.
13. That the right to regulate the mode in which parties shall prosecute their remedies for redress of injuries justly belongs to the legislative department, but when, under the semblance of a change of remedy, a substantial existing right is defeated, impaired, or abridged, the act is null and void, because it then ceases to regulate the mere remedy, and impairs the real right. .
14. That if the law, as it exists to-day, vests certain property in one citizen, and the Legislature could to-morrow pass an act depriving Mm of all remedy to “ protect ” that property, except by parting with a portion of the same, then the Legislature would have an equal right to say, that a party who is sued for his own property shall not be permitted to plead his title in defence of the action, unless he will consent to give up a portion of his property to the plaintiff; for the Legislature could equally deny the right to the defendant as to the plaintiff, in such a case.
15. That the act of the Legislature referred to does assume to divest the rights of property vested in parties, by the laws existing and in force at the time those rights accrued, and so clogs the remedy as to defeat that part of the Constitution which guaranties to every man the right of protecting his property, through the Courts and officers of the State.
18. The act in question denies the owner all right to the rents and profits of the land, accruing prior to the date of the patent, whatever rights the party may have had, although the patent itself is issued in pursuance of a regular judgment, in a competent Court, against the United States, the successor to all the rights of Spain and Mexico, and which judgment and patent are but a declaratory affirmance of a yore-existing, valid, and acknowledged right.
*1817. That as all the claims to private lands in the State had, by the law of Congress, to pass through the U. S. Board of Land Commissioners, and the Federal Courts, if required by the government, and, upon final confirmation, to be patented, the practical effect of this act of the Legislature is to deny the owners all their previous rights in lands granted by Spain and Mexico, unless these owners have complied, in the past, with the then unknown provisions of the tenth section, now first enacted, but which these owners were not required to do, by any then existing law.
18. The act makes no distinction, (except in cases of “ actual fraud or force,) whether the trespass was willful or mistaken, whether upon the long and well known claim of the owner, or upon wild and supposed public lands, claimed by no known or accessible person \. and while the owner, under the revenue laws of the State, has been compelled to pay the taxes upon the property, or lose his land, although no patent had issued, yet, when he at last is allowed to recover the possession, ho is compelled to pay the full assessed value of the improvements, without any deduction for the rents and profits, or even for the taxes he has paid the State, or the injury done to the property itself.
19. That the Legislature had the right to allow all and every right and defence, legal as well as equitable, existing under the laws in force at the time they accrued, to be set up in a suit to recover the possession of real estate, but the Legislature had no power to create new rights for one party, as to the past, nor impair the pre-existing rights of the other; and this is the true distinction between the power to regulate the remedy, and the want of power to impair the right.
20. That the hardships of particular cases, that will and must arise in the progress of human affairs, under any and all systems of government and law, do in fact constitute the true and stern test of the devotion of a free people to fundamental principles; and to sustain these fundamental principles, whereon liberty, protection, and society itself, are based, is the most conclusive proof of the capacity and fitness of a people for self-government.
21. That the permanent evils inflicted upon free institutions, by a violation of these fundamental principles, will outweigh, immeasureably, all the temporary benefits that might accrue to individuals.
22. That whatever may be the views of others, this Court has but one duty to perform, and that is to expound and enforce the Constitution, in its purity and vigor, until changed by the same sovereign power that made it.
Terry, J.With the utmost deference to the majority of the Court, I am compelled, reluctantly, to dissent from their opinion in this case.
After the most careful investigation, I am unable to perceive *19any constitutional objection to the “ Act for the protection of actual settlers, and to quiet land-titles of this State,” passed March, 1856.
It is conceded, that the act does not conflict with any provision of the Constitution of the United States, or the treaty of Guadalupe Hidalgo. The opinion seems to be predicated on the grounds, that the act is void, because it is in violation of natural justice, gjagl infringes article first of section first of the Constitution of this'State. This article is a mere reiteration of a truism which is as old as constitutional government. A similar declaration is contained in the Constitutions of most of the States of the Union, but, I think, has never been construed as a limitation on the power of the government.
Such a construction might seriously affect the power of government to enact laws for the punishment of crime by the incarceration of the criminal, or to enforce the collection of debts by a seizure and sale of property.
The doctrine, that judges have power to annul a law, because, in their opinion, its provisions are in violation of natural justice, is one of dangerous consequences, tending to destroy that distribution of powers made by the Constitution, by concentrating in the hands of the judiciary, functions which are, by the Constitution, conferred on different departments, and cannot, I think, be maintained on principle or authority.
The question, whether a particular law is in violation of natural justice, may be one of difficult solution. Its determination is governed by no fixed rules, and often depends on considerations of policy and public advantage, which are more properly the subjects of legislative than judicial exposition.
Section first of article fourth of the Constitution of California, vests the legislative power of the State in a Senate and Assembly, which is designated the Legislature of California.
The effect of this article was to confer all the legislative powers possessed by the people themselves, except those limited by some constitutional provision.
In England, from which country our system of government and laws is, for the most part, taken, the power of the Legislature is held, by the most eminent jurists, to be absolute.
Sir Edward Coke says, (4 ínst., 36) :
“The power and jurisdiction of Parliament is sole, transcendent, and absolute; that it cannot be confined, either for cause or persons, within any bounds. It hath sovereign and uncontrollable authority in the making, conforming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws concerning matters of all possible denomination, ecclesiastical or temporal, civil, military, maritime, or criminal; this being the place where that absolute despotic power, which must, *20in all governments, reside somewhere, is intrusted by the constitution of these kingdoms.”
It is true, that some writers upon government have denied the right of Parliament to enact laws contrary to the principle of natural justice; contending that such laws are of no binding efficacy.
In reference to these doctrines, Sir William Blackstone says:
“It must be owned, that Mr. Locke, and other theoretical writers, have held, that there remains still inherent in the people a supreme power to remove or alter the legislative, when they find the Legislature act contrary to the trust reposed in them; for, when such trust is abused, it is thereby forfeited, and devolves to those who gave it. But, however jusc this conclusion may be in theory, we cannot practically adopt it, nor take any legal steps for carrying it into execution under any dispensation of government at present actually existing. For this devolution of power to the people at large, includes in it the dissolution of the whole form of government established by that people—reduces all the members to their original state of equality, and by annihilating the sovereign power, repeals all positive laws whatsoever before enacted. No human laws will, therefore, suppose a case which at once must destroy all law, and compel men to build afresh upon a new foundation; nor will they make provision for so desperate an event, as must render all legal provisions ineffectual. So long, therefore, as the English Constitution lasts, we may venture to affirm, that the power of Parliament is absolute and without control.” 1 Com., 162.
Again, on page 185, he says, after describing the manner of passing laws : “ An act of Parliament thus made is the exercise of the highest authority that this kingdom acknowledges upon earth. It hath power to bind every subject in the land, and the dominions thereunto belonging. Nay, even the King himself, if particularly named therein. And it cannot be altered, amended, dispensed with, suspended, or repealed, but in the same form and by the same authority of Parliament, for it is a maxim in law that it requires the same strength to dissolve as to create an obligation.”
Chancellor Kent, who, in point of legal knowledge and learning, stands second to no American jurist, says: “ The princple in the English government that the Parliament is omnipotent, does not prevail in the United States; though if there be no constitutional objection to a statute, it is with us as absolute and uncontrollable as laws flowing from the sovereign power under any other form of government. But in this and all other countries where there is a written Constitution designating the powers and duties of the legislative as well as other departments of the government, an act of the Legislature may be void, as being against the Constitution. The law with us must conform, *21in the first place, to the Constitution of the United States, and then to the subordinate Constitution of its particular State, and if it infringes the provisions of either it is so far void.” 1 Com., 449.
This doctrine is fully sustained by numerous decisions of our highest judicial tribunals. In the case of Bennett v. Boggs, 1 Bald. R., 74, a case involving the constitutionality of an act of the Legislature of New Jersey, regulating fisheries in the Delaware River, Hr. Justice Baldwin held, “ that the Court in determining what is the law of New Jersey, must first look at the Constitution, which is the supreme law binding on the Legislature itself. If that contained any restraint on the legislative power over fisheries, its obligations are paramount, but if it contain none, the law which must govern their decision, exists only in the acts of the government, organized by the people under their Constitution.
“ We may think the power conferred by the Constitution of this State too great, and dangerous to the rights of the people, and that limitations are necessary; but we cannot affix them, or act in cases arising under the State laws as if limitations had been fixed by the Constitution previously. We cannot declare a legislative act void because it conflicts with our opinion of policy, expediency, or justice. We are not guardians of the rights of the people of the State, unless they are secured by some constitutional provision which comes within our judicial cognizance.
“ The remedy for unwise and oppressive legislation within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people; if these fail, the people in their sovereign capacity can correct the evil, But Courts cannot assume their rights; there is no paramount and supreme law which defines the laws of nature, or settles those great principles of legislation which are said to control State Legislatures in the exercise of the powers conferred on them by the Constitution.
“If it is once admitted that there exists in this Court a pourer to declare a State law void, which conflicts with no constitutional pi’ovision—if we assume the right to annxxl it for its supposed injustice or oppressive operation, we become the makers, and not the expounders of the Constitution. Our opinions would not be a judgment on what was the pre-existing law of the case; bxxt upon what it is, after we have so amended or modified it, as to meet our ideas of justice, policy, and wise legislation, by a direct usurpation of legislative power, and a flagrant violation of the duty enjoined upon us by the judiciaxy act.”
In Bradde v. Bramfield, 2 S. & M., 285, Huston, J., held, that there was high authority for saying there is, in every government somewhere, an absolute and despotic power. The exceptions to this are only such as are expressly specified in the writ*22ten Constitution, subject to this, and only to this, or some provision of the Constitution of the United States. The powers of the Legislature of the State to enact laws, seem not to be limited.
In the case of Harvey v. Thomas, 10 Watts, 66, which involved the constitutionality of a statute relating to private roads, the defendant argued that the Legislature had not power to authorize the application of another’s property to a private purpose, even on compensation. G-ibson, C. J., uses the following language :
“ Who can point out any express constitutional disaffirmance of the power ? The clause by which it is declared, that no man’s property shall be taken, or applied to public use, without the consent of the representative, and without just compensation made, is a disabling, and not an enabling one. The power would have existed in full force without.
“ Whether this power was only partially restrained for a reason similar to that which induced an ancient law-giver to annex no penalty to a parricide, or whether it was thought that there would be no temptation to the act of taking the property-of one individual for another’s use, it seems clear there is nothing in the Constitution to prevent it, and the practice of the Legislature has been in accordance with the principle here stated, of which the application of another’s land, for the purpose of a private way, is a frequent proof.”
In the case of Cochran v. Van Sarlay, 20 Wend., 381, Senator Yorplanek said: “ It is difficult, upon any general principles, to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of the written Constitution give that authority.
“ There are many dicta, and some great authorities, holding that' acts contrary to the first principles of natural justice are void. The principle is unquestionably sound as the governing rule of the Legislature, in relation to its own acts, or even those of a preceding Legislature. It also affords a safe rule of construction for Courts, in the interpretation of laws admitting of any doubtful construction, to presume that the Legislature could not have intended an unequal and unjust operation of its statutes. Such a construction ought never to be given to legislative language, if it be susceptible of any other more comformable to justice ; but if the words be positive, and without ambiguity, I can find no authority for a Court to vacate or repeal a statute on that ground alone. But it is only in express constitutional provisions, limiting legislative power and controlling the temporary will of a majority by a permanent and paramount law, settled by the deliberate wisdom of the nation, that I can find any safe and solid grounds for the authority of Courts of Justice to declare void any legislative enactment. Any assumption of authority beyond *23this, would be to place in the hands of the judiciary, powers too great and too undefined, either for its own security or the protection of private rights.”
In the case of Calder v. Bull, 3 Dallas, 386, this question was discussed by the Supreme Court of the United States. The Judges of that Court were not agreed in their opinions on this point.
Mr. Justice Patterson held, “ that if a government, composed of legislative, executive, and judicial departments, were established by a Constitution, which imposed no limit on the legislative power, the consequence would inevitably be, that whatever the Legislature choose to enact would be lawfully enacted, and the judicial power could not interfere to pronounce it void. That it was true some speculative spirit had held that a legislative act against natural justice, must in itself be void, but he could not think that under such a government any Court of Justice would possess the power to declare it so.”
Mr. Justice Iredell was of opinion, “ that if the Legislature of the Union, or of any member of the Union, should pass a law within the general scope of their constitutional powers, the Court could not pronounce it void merely because it was, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard; the ablest and purest men have differed upon the subject. All the Court could properly say in such an event, would be that the Legislature, possessed of an equal right of opinion, had passed a law which, in the opinion of the Judges, was inconsistent with the abstract principles of natural justice. If the Legislature pursue the authority delegated to them, their acts are valid; if they transcend the bounds of that authority, their acts are invalid. In the former case, they exercise the discretion vested in them by the people, to whom they are responsible, for the faithful discharge of their trust; in the other ease, they violate the fundamental law, which must be our guide whenever we are called upon as Judges to determine the validity of legislative acts.”
Laws of like character have been sustained by the tribunals of other States having Constitutions similar to ours.
In the case of Armstrong v. Jackson, (1 Blackf., 374,) the Supreme Court of Indiana held, that the Occupying Claimant Law of Indiana was not in conflict with the Constitution.
The Court say: “ By the first section of this act, if the bona fide occupant is willing to pay the value of the land, without the improvements, the successful claimant shall not obtain the possession until he pays the value of the improvements, made by the occupant. We do not perceive the force of any of the objections which have been urged against this part of the act. Ye see no provision of the Constitution which is violated by it. It cannot be contended that it is unconstitutional for the success*24ful claimant to pay the occupant for his improvements, nor can we discover the unconstit-utionality of the occupant’s retaining possession of the land he has improved, until such payment is made. The Legislature might have given the occupant an action against the successful claimant, for the value of his improvements, and a lien on the premises improved, until such value was paid; and why may they not give this mode of recovering the value, at the conclusion of the action of ejectment, and make the payment a condition precedent to the recovery of possession ?
“ Laches in demanding a right for a certain time, may be considered either as an abandonment or as a fraud, and it is generally admitted that Statutes of Limitation may be enacted, barring the recovery of lands and tenements after a given time of adverse possession; and the length of that time is wholly at the will of the Legislature. To make valuable and lasting improvements requires time, and when made by an adverse possessor, they manifest laches on the part of the real owner, and we see nothing in the Constitution to prevent the Legislature from declaring the lapse of time necessary for making such improvements an absolute bar to recovery; hence, they may certainly make it a conditional one. They may say, that if the real owner neglects to assert his right, until the bona fide occupant makes valuable improvements, he shall not obtain the possession until he has paid for those improvements; but here, he is not laid under this condition, unless the occupant is willing to pay him all that is really his own: the value of the land without the improvements.”
The Court, after deciding that the valuation of the commissioners was void, as in conflict with the provision of the Constitution which guarantied the right of trial by jury, decide that the unconstitutionality of the mode of ascertaining the value of improvements did not affect the right of the occupant to their value, which was given by that part of the act to which' there was no constitutional objection.
In Elliott v. Armstrong, 4 Blackf., 424, the Court held that a party evicted by a paramount title, was liable to pay rents only for the land without improvements, if he was entitled to the improvements under the Occupying Claimant Law.
The Court say, “ it appears to us, the real matter in controversy between the parties is as to the rule by which the amount of the rents and profits is to be estimated. The defendant has had the use of plaintiff's lot, and is bound to pay a fair rent for it; bat he is entitled to the use of the buildings free of rent, because they were erected at his own expense, and because he has by the statute a right to their possession, until he is paid for them by the complainant-”
Similar decisions were made in Ohio. See 5 Ohio, 134. In *25Illinois; see 14 Ill., 173 and 431. In Alabama, 13 Ala., 31; and in other States.
Admitting such decisions to have been made under laws which provided only for cases of bona fide occupation under color of title, I do not perceive how this fact can affect the question of constitutionality. At common law, buildings erected upon land become a part of jib^, freehold, and vest in the owner of the soil as well when erected by a person holding under color of title, as by a mere naked trespasser. In either ease such a law would operate to divest vested rights by taking the property of one citizen and conferring it upon another) or by compelling the successful claimant to pay for property which was, by the rules of common law, already his own.
The act in question would certainly have been more consonant with the principles of justice and equity if the Legislature had discriminated in favor of those occupants whose possession had been acquired in good faith and in ignorance of any outstanding title. But .the consideration of the justice and policy of the act, and its effect upon the general welfare of the State was addressed to the discretion of the Legislature, and having been decided by the Legislature, it is not a proper subject of judicial inquiry.
The sudden increase of population consequent upon the discovery of gold in California, created a large demand for the necessaries of life; the small quantity of land in actual cultivation was inadequate to supply this demand, and left us almost wholly dependent upon foreign countries.
It has been policy of the Legislature from the commencement of our State government, to encourage the settlement and cultivation of the unoccupied lands of the State by the enactment of laws to protect the actual settler in the possession and enjoyment of a limited quantity of land.
The wisdom of this policy has been demonstrated by the rapid ;developmentsf our agricultural resources, which now afford not only an abundance of necessaries for home consumption but leave a surplus for exportation, a result never accomplished in any other country within so short a period.
Upon the face of the inducements offered by the Legislature, and the promise of being protected in the possession of their homes,' a number of hardy and enterprising citizens settled upon lands which, in most instances, had never been surveyed or occupied, nor in any manner segregated from the public domain. Hor was there any evidence within their reach to show that such lands were claimed by any private citizen. Most of this land was, before their settlement, of little value, paying revenue neither to the owner nor to the State; their present enhanced value is in a great measure owing to the energy and labor of the occupant, the improvements in many cases greatly exceeding the lands in value. There are no doubt instances of wrongful and *26tortious entries upon lands known to be claimed by individuals, but in a majority of cases, more especially in those portions of the State that were not inhabited before the discovery of gold mines, such entries have been made under the bona fide belief that the land settled upon was a portion of the public domain.
Under these circumstances we may well doubt whether it would be a. orea,ter ^ natural justice to deprive hun-
dreds of "citizens and their families of the homes erected by the labor of years, without making any compensation for the improvements which constitute a great part of the value of those homes, or to permit them to retain possession of them upon paying to the owner of the soil the full value of all that is really his own. It appears to be settled that the Legislature may enact laws by which private property may be taken for private purposes in eases where the general good would be thereby promoted. The propriety, policy, and expediency of such acts, can be properly determined on by the Legislature.
In determining the validity of an act of the Legislature the Courts can consider only whether the act is in conflict with any express provision of the Constitution. Our authority to judge is derived from the Constitution and laws of the State; we can know no power superior to the Constitution, nor acknowledge any higher law than a statute duly enacted pursuant to its provisions.