Opinion of Upton, J., dissenting.

the State. This, it seems to me, would be assuming that one department of the government would or might violate the Constitution, and that the Legislature attempted to remedy the evil by compelling another department to violate it. When a definite and ascertained amount is due to a certain person, and the Constitution provides that the money shall be raised and the amount shall be paid within a specified time, I cannot conceive that it is a case where provisions for its payment are not made by law; nor can I conceive what power the Legislature has, under the Constitution, to prohibit the Secretary of State from auditing the account.

A statute must receive a construction consistent with its constitutionality, if its language will admit of such a construction. It seems to me clear that the construction contended for would conflict with the requirements of the Constitution, and I am fully convinced that it does not comport with the most obvious meaning, nor with the most reasonable construction of the language employed by the Legislature in defining the duties of the Secretary of State.

I am therefore compelled to dissent from so much of what I understand to be the opinion of a majority of the Court, as holds that the Secretary can audit public accounts only when there is an unexpended appropriation applicable to the payment of the particular claim presented. And I am of opinion that it is the duty of the Secretary of State to audit public accounts in every case where the law has clearly provided that the claimant shall be paid by the State; and if the claim is allowed, to draw his warrant for the amount due.

I think the warrants mentioned in the petition for mandamus were legally drawn, that the Legislature has passed no Act prohibiting the Treasurer from paying them, and that they are payable out of any money that may have been appropriated for the payment of the classes of expenses to which they respectively belong.

Statement of Facts.

WILLIAM CHAMBERS, APPELLANT, v. MARY ANN CHAMBERS, ELIZABETH MAURY, AND HER HUSBAND, R. F. MAURY, RESPONDENTS.

DESCENT OF LANDS UNDER THE DONATION ACT.-The restrictions upon the descent of lands granted under § 4 of the Act of Congress, relating to public lands in Oregon, approved September 27, 1850-commonly called the Donation Act-do not apply to lands granted under § 5 of the same Act.

IDEM.-Lands granted under 5 of said Act descend in accordance with the provisions of the Statute of Descents, and of the common law.

APPEAL from Jackson County.

This suit was commenced in the Circuit Court for Jackson County, at its November term, 1870, to have the rights of the parties to Donation Land Claim 66 declared, and for assignment of dower and partition. The complaint alleges, that in the year 1852, Aaron Chambers, the father of the plaintiff, and Waity Ann Chambers, his wife, took up Donation Land Claim No. 66, in Jackson County, Oregon, and made proof of residence and cultivation, as required by the Donation Act of 1850, and the amendments. thereto; that said donation claim was divided by the Register and Receiver at Roseburg, and the north half assigned to Waity Ann Chambers, and the south half to Aaron Chambers; that on July 20, 1859, Waity Ann Chambers died, leaving her surviving husband, and her son (by a former husband), John W. Manning, her only heirs at law; that on August 19, 1865, a patent for said donation claim issued to said Aaron and Waity Ann Chambers; that on September 13, 1869, said Aaron Chambers died intestate, seized and possessed of the south half of said donation claim, and the undivided half of the north half of said claim, and also seized in fee of the fractional southwest quarter of section 10, and fractional west half of section 15, township 37 south, range 2 west, and leaving the plaintiff, William Chambers, and defendant, Elizabeth Maury, his only children and heirs at law, and defendant, Mary Ann Chambers, his surviving widow; that after the death of Waity Ann Chambers, the defendant Mary Ann Chambers.

Statement of Facts.

purchased the interest of John W. Manning in said donation claim, and by virtue of said purchase now claims the whole of the north half of said claim; that plaintiff is advised and believes that said Mary Ann Chambers is only entitled to one half of the north half of the said donation claim and to dower in the remainder of said land, and therefore prays that the rights of the several parties be declared and set apart, and that the dower of Mary Ann Chambers be set apart and assigned to her.

The answer of Mary Ann Chambers admits that Aaron Chambers and Waity Ann, his wife, took up said donation claim in 1852, under the fifth section of the Donation Act of 1850, and resided on said claim four consecutive years, and that the north half was assigned to Waity Ann Chambers as her half of said claim; that said Waity Ann Chambers died July 20, 1859, but denies that Aaron Chambers was her heir at law; that Aaron Chambers died September 13, 1869, in possession of said claim, but avers that his possession of the north half thereof was by right of curtesy, and not as owner. It avers that the said Waity Ann was the owner in her own right of the north half of the said claim at the date of her death, on July 20, 1859, by virtue of four years' residence and cultivation, under the fifth section of the Donation Act (dated September 27, 1850), and was entitled to a patent from the United States for the same, and that afterwards the patent issued, bearing date August 19, 1865, and granted to said Waity Ann Chambers and her heirs the north half of said claim; that John W. Manning was, at the time of her death, her only lineal descendant and sole heir at law, and as such inherited the said north half of said donation claim; that on August 12, 1869, by deed duly executed, he conveyed all his interest in said claim to defendant, Mary Ann Chambers, for the sum of $2000; that she is justly entitled to said north half of said claim and to dower in the remainder thereof, for which she prays.

To this answer plaintiff interposed a demurrer, for the following reasons:

Opinion of the Court--McArthur, J.

"1. The answer does not state facts sufficient to constitute any defense to this suit.

"2. It admits the land was acquired by residence, cultivation, notice and proof, according to the Act of Congress of September 27, 1850, and that the patent did not issue until after the death of the second wife of Aaron Chambers.

"3. The Donation Act gives the land in case of the death of either claimant before patent issues, to the survivor and children or heirs of the deceased, in equal proportions."

The Court overruled the demurrer and dismissed the suit, and from this judgment plaintiff, William Chambers, and defendants, Elizabeth Maury and R. F. Maury, appeal.

B. F. Dowell and E. B. Watson, for Appellant.

C. W. Kahler and J. F. Watson, for Respondents.

By the Court, MCARTHUR, J.:

The only question pressed upon the attention of this Court was that in relation to the descent of the north half of the donation land claim described in the pleadings. The other question in relation to the partition and assignment of dower raised by the demurrer to the answer was not argued. It was admitted that John W. Manning was the only lineal descendant of Waity Ann Chambers, and that she was the owner of the land described in the grant, and that she obtained it under and by virtue of 2 5 of the Donation Act, as the "Act of Congress, relating to public lands in Oregon," approved September 27, 1850, is commonly designated. Appellant's counsel urge that the restrictions placed upon the descent of lands acquired under and by virtue of 4, which provides, among other things, that "when either shall have died before patent issues, the survivor and children, or heirs of the deceased, shall be entitled to the share or interest of the deceased, in equal proportions," apply with equal force to lands acquired under and by virtue of 25 of said Act.

It will be noticed that the grants made in 22 4 and 5 of the Act are separate and distinct grants of different quanti

Opinion of the Court-McArthur, J.

ties of land to different classes and descriptions of persons. Also that the provision in 2 4 changes the rule of descents from that of the common law and that of our statute, and that the conditions attached to a grant under ? 5 are in many respects different from those to a grant under 4. Though embraced in the same Act the two sections are entirely independent of each other so far as the restrictions upon descent are concerned. The provision in % 4 in relation to descents being in derogation of the common law should be strictly construed. It should not be extended in its operation over any property not expressly included in its terms. The words "and in all cases when such married persons have complied with the provisions of this Act so as to entitle them to the grant as above provided," which almost immediately precede the words "when either shall have died before patent issues, the survivor and children or heirs of the deceased shall be entitled to the share or interest of the deceased in equal proportions," clearly limit the restrictions upon the descent to the lands granted to settlers who have complied with the requirements as above provided, and they do not extend to the lands granted to settlers who comply with the requirements specified in subsequent sections. The language of that part of 4 restricting the descent is clear, and in our opinion applies exclusively to lands granted under that section. Waity Aun Chambers held the north half of the Donation Claim under 25, and as there are no restrictions placed upon the descent of lands acquired by virtue of said section, it follows that the provisions of the statute of descents and of the common law apply. In accordance therewith it descended upon her death to John W. Manning, her only lineal descendant, charged with the curtesy of Aaron Chambers, her husband, since deceased. Manning for a valuable consideration sold and conveyed it to Mary Ann Chambers, in whom the title now rests.

It follows from the above that in overruling the demurrer and dismissing the suit the Court below did not err. Decree affirmed.