On Rehearing.
MONROE, J.Section 2 of the act of Congress approved September 28, 1850 (9 Stat. 519, c. 84), provides that:-
“It shall be the duty of the Secretary of the Interior, as soon as may be practicable after the passage of this act, to make out an accurate list and plats of the lands described as aforesaid [“the whole of those swamp and overflowed lands, made unfit thereby for cultivation, which shall remain unsold at the passage of this act” (section 1)1 and transmit the same to the Governor of the state; * * * and, at the request of the Governor, cause a patent to be issued to the state therefor; and, on that patent, the fee simple of said lands shall vest in the state, * * * subject to the disposal of the Legislature thereof,” etc.
It is conceded that the Secretary of the Interior transmitted to the Governor the lists and plats as contemplated by the statute quoted, and that among the tracts so listed was the section 42 here in dispute, which in 1831 had been surveyed and returned as swamp or overflowed land by an officer employed by the government of the United States to make the survey. The state of Louisiana^ was not obliged to accept, under the title-tendered, all or any part of the lands included in the list, and when, on October 7, 1851, section 42 was selected, among others which were listed, it is to be presumed that the selection was made with due regard to the state’s rights. At all events the land was selected by the state, acting through its designated representative, as swamp or overflowed land, and the transfer of the title thereto from the United States was effected on August 1, 1854, by the approval of the Secretary of the Interior, acting under the authority of the act of Congress above referred to. Thereafter, in 1855, the General Assembly of Louisiana created the office of “register,” and authorized the incumbent to sell warrants to be located on the lands so acquired, as also on any shallow lakes which might have become the property of the state, might have been surveyed, were susceptible of being reclaimed, wholly or in part, and were not navigable; “the warrants to be issued for not more than 640, nor less than 40, acres,” and no lands to be sold for less than $1.25 an acre (Rev. St. §§ 2916, 2920, 2929). It was further provided (Rev. St. § 2930) that:
“The register of the state land office shall preserve maps or plats of all swamp lands donated to Louisiana, certified to by the surveyor general, and shall mark thereon, on each tract of land purchased, the number of the certificate issued therefor, and shall keep a well-bound book in his office, in which shall be entered, in proper form, all the lands thus sold, to whom sold, and for what price, which book and map shall be carefully preserved and shall be deemed official records.”
The foregoing provision was re-enacted in Act No. 38, p. 91, of 1870 (extra session), which further provided (section 14):
“That the public lands, donated by Congress * * * which are subject to regular tidal overflow, designated as ‘swamp and overflowed lands,’ within the intent of the several acts of Congress relating thereto, which have been ap*18proved to the state of Louisiana by the general government as swamp and overflowed lands, shall be subject to entry at the rate of twenty-five cents per acre. Provided, that satisfactory proof be filed with the register * * * that any land sought to be purchased under the provisions of this section is subject to regular tidal overflow.”
The act also provided (section 15):
“That it shall be the duty of the Governor, when applied to, to issue patents for all lands that have been sold, and for lands located by warrants, whenever he shall be satisfied that the same have been legally sold or located.”
This was followed by Act No. 104, p. 243, of 1871, which (among other things) provides (section 1):
“That the lands donated by Congress * *. * as swamp and overflowed lands, * * * which shall have been surveyed and approved in accordance with law, shall be subject to entry and sale at the price of twelve and a half cents an acre” to persons “acquiring for actual settlement and cultivation.”
Otherwise (section 2) the price to be $1.25 an acre; and no purchaser, in either case, to be allowed to enter more than 160 acres. Section 3 of this act provides that lands subject to tidal overflow, so as to be unfit for settlement and cultivation, may be sold for 25 cents an acre—
“provided satisfactory proof be filed with the register * * * that any land sought to.be purchased under this section is subject to tidal overflow so as to be unfit for settlement and cultivation.”
In November, 1876, J. W. Board, a resident of the parish of Terrebonne, presumably upon the faith of the record and of the law (showing that it had been selected by the state, transferred by the United States, and accepted and offered for sale by the state, as swamp or overflowed land), bought the tract herein in question, at the office established by the state for the sale of such lands, from the .officer authorized to make the sale, and obtained a patent therefor, issued in the name of the state, by the Governor; and thereafter the title so acquired passed by mesne conveyances to the plaintiffs herein, who complain that, notwithstanding that they and their authors hold, and have held, under a title from the state, and have enjoyed undisturbed possession, as owners, for more than 30 years, the defendants, “the Oyster Commission of Louisiana” and “the Oyster Company, Limited” (a private corporation), are attempting to dispossess them, and will actually occupy a portion of their property unless prohibited by injunction.
The first legislation enacted for the promotion of the oyster industry appears to have been Act No. 106, p. 195, of 1886, which provided (inter alia):
“Section 1. * * * That all beds of rivers, bayous, creeks, lakes, coves, inlets and sea marshes, bordering on the Gulf of Mexico, within the jurisdiction of this state, and not heretofore sold or conveyed by special grants or by sale, by this state or by the United States, to any private party or parties, shall continue and remain the property of the state of Louisiana,” etc. (Italics by the court.)
“Sec. 2. * * * That, if any river, bay, lake, bayou, cove, inlet, or pass, makes into, or runs through, the land of any person, and is comprised within the limits of his lawful survey, such person, or other lawful occupant, shall have the exclusive right to use said bodies of water for planting oysters and other shellfish, but the right of the owners or occupants of land on any of the other shores, bays, rivers and bayous * * * shall extend to ordinary low-water mark; but it is not intended thereby to deprive them of the privilege extended to others by the first section of this act” (which provides for the use of the beds of the rivers, bayous, etc., as “common”).
While the act thus quoted was in force, to wit, on August 30, 1886, the property here in dispute was sold by William Wright (who had acquired by mesne conveyance from the patentee) to J. P. Viguerie, who in 1887 sold it to Mrs. Faisans. By Act No. 110, p. 142, of 1892, it was provided:
“That all the beds of the rivers, bayous, creeks, * * * shall continue and remain the property of the state,” etc. (the reservation in favor of prior purchasers, as contained in the act of 1886, being omitted).
Aind Act No. 121, p. 170, of 1896, contains a similar provision.
By Acts No. 153, p. 274, of 1902, No. 52, *20p. 113, of 1904, and No. ITS, p. 317, of 1906, the Oyster Commission was created and vested with wide authority, and (quoting from the act of 1904) it was provided:
“That all the beds and bottoms of the rivers, bayous, lagoons, lakes, bays, sounds and inlets, bordering on, or connected with, the Gulf .of Mexico, and all that part of the Gulf of Mexico within the jurisdiction of the state of Louisiana, and all oysters and other shellfish naturally growing thereon, shall be, continue, and remain, the property of the state of Louisiana, and shall be under the control of the Oyster Commission ■of Louisiana,” etc.
It will be seen from the foregoing that in 1851 the state, through its authorized representative, selected the tract in dispute as swamp and overflowed land, the title to which was vested in the United States, and as such in 1854 accepted the title thereto tendered by the United States, under a law which contemplated that the land, or the proceeds, should be devoted to “reclaiming said lands by means of levees and drains”; that in 1876 the state, also through its agents specially authorized, sold said tract as land which was susceptible of private ownership, and received and appropriated the price paid therefor by the purchaser; that 10 years later it in effect confirmed the title so conveyed by an act which, in providing for the future reservation of territory suitable for the cultivation of oysters, in express terms excluded from its operation such bedding grounds as had already been sold to private individuals, which act remained in force for some six years, during which period the more immediate authors of the plaintiffs acquired their title to the land so excluded; and now, more than 20 years after the action of the one agent in issuing the state’s patent for the land in’question had been ratified by a legislative enactment, another agent of the state comes forward to say that the patent is of no value, that the agent by whom it was issued exceeded his authority, that the common right of fishing, or bedding, oysters, "within the ebb and flow of the tide, is inalienable, and that the state is not, and cannot be, estopped by any patent issued in derogation of such right.
The grant under which the Oyster Commission exercises its powers does not, however, authorize it to speak for the state for the purpose of denying the authority of the state and of attacking as invalid and ultra vires the contracts heretofore made by the state, or in its behalf by other agents specially authorized for that purpose. The commission is a mere creature of legislative enactment, and, whilst its powers are very extensive in the direction in which it is intended to operate, it has not only less authority in other directions than the ordinary citizen, but has none whatever. It is true that it is charged with the administration and control of the beds of all rivers, bayous, lagoons, etc., adjacent to the Gulf of Mexico, and its authority in that respect should be sustained up to the point where it is devested or controlled by authority emanating from the same or a higher source.
The authority exhibited by plaintiffs for holding possession of the property purchased by them is, however, derived from the same source as that by virtue of which the commission seeks to dispossess them, and is in the form of a contract, to which the creator of the commission is a party, and with respect to the validity of which the commission is not authorized to stand in judgment; and what the commission itself cannot do the other defendant, claiming under the commission, cannot do. This view is confirmed by section 10 of Act No. 178, p. 323, of 1906 (enacted after this suit was begun), which provides:
“That the said commission shall have power to lease any water bottoms in the state, * * * as described in section 1 of this act, and the title whereof is vested in the state and is not claimed under some title by any person; and no lease of any bottom which may be claimed by any private individual, firm, or corporation shall be valid or have any effect until there shall have been an adjudication by a court of *22competent jurisdiction between the state and the claimant as to the validity of the title of the property to be leased: Provided, that they (sic) shall not apply to any property that has not heretofore been alienated by the state or the title to which is now in litigation, and desirable for the purposes of bedding, planting and •cultivating, or propagating, oysters.”
The proviso, “that they (?) shall not apply to any property * * * the title to which is now in litigation,” proceeds upon the assumption that the state was, or might make itself, a party to the litigation referred to, and is merely intended to withdraw from the preceding denunciation of nullity leases by the commission of property the title to which may be thus at issue.
It follows, however, that'as neither of the •defendants now before the court is authorized to stand in judgment for the state, quoad the validity of the title set up by plaintiffs, the state cannot be bound with respect thereto by any judgment which may be herein rendered, and that, as between the plaintiffs and the state, such judgment must leave that question entirely at large.
It is therefore, and for the reasons herein-above stated, ordered, adjudged, and decreed that the decree heretofore entered in this •case, affirming the judgment appealed from, be reinstated and now made final.