The parties have stipulated that the affidavits on which was based the application of respondent complied neither in form nor substance with the requirements of the Act of March 28th, 1868. Respondent is not, therefore, entitled to purchase under the provisions of that act. (Hildebrand v. Stewart, 41 Cal. 387; Cunningham v. Crowley, 51 id. 128.) Nor does his come within the class of cases provided for in the curative Act of March 27th, 1872. (Stat. 1871-2, 622.) Even if the language of the first section of that act were ambiguous, the title illustrates its purpose—“ An act for the relief of purchasers of State lands.” It is difficult to believe, if the Legislature had intended to change the machinery by which such lands might thereafter be acquired, and to amend the law so that applications need no longer be accompanied by certain affidavits, that they would not in terms have amended the prior statute. If the Act of 1872 be construed as an amendment of the previous act, it is apparent that those applicants who have since complied with the previous act as amended, require no “ relief.” To maintain the position of respondent we must declare that the Legislature did by the act last cited amend the previous statute; but this we cannot declare, when to the improbability of an amendment so indirectly arrived at, is added a .consideration of the title of the act —in itself totally inapplicable to future applications.
The application of plaintiff, we may assume, complied in form and substance with the law in existence when it was made. Yet we cannot determine that he is entitled to purchase, in view of the prohibitory provision of the Constitution: “ Lands belong*105ing to this State, which are suitable for cultivation, shall be granted only to actual settlers.” (Art. xvii, § 3.)
This language is clear and explicit, and operates as well on applications made before as after the Constitution took effect. As the case shows, appellant has paid no portion of the purchase-money, nor has his proposition to buy been accepted by the agent of the State. He has parted with nothing of value, and can neither assert that the State Constitution has “ impaired the obligation ” of a contract, or deprived him of property “ without due process of law.” It is admitted by the stipulation—constituting part of the findings—“ At the date of the application of Squires, (defendant and respondent) neither plaintiff, nor anyone under whom he claims, was in possession of said land or any part thereof.” It does not appear from the record, however, whether either party has been in possession since January 1st, 1880. This could not appear, since the judgment of the District Court was rendered prior to that date. Nevertheless, we must declare that the land can be granted only to an actual settler. Whether the land could be granted to an actual settler who had been wrongfully dispossessed, need not now be decided. We only say that under the present Constitution the facts as to the possession of the respective parties must be “ found ” in all contested cases like the present.
The case must be remanded; and in the Court below, the parties may respectively take such course as they may be advised in respect to motions for leave to amend or supplement their pleadings.
Judgment reversed, and cause remanded for a new trial.
McKee, J., -and Boss, J., concurred.