There is no

Co. v. Pillsbury, 171 Cal. 322, [153 Pac. 24].) other section of the constitution which purports to confer power upon the legislature to invest such commissions with judicial power of this nature. Certain judicial powers may be invested in the Industrial Accident Commission and in the Railroad Commission, but with these exceptions all the general judicial power of the state must be vested in the courts named in the constitution and in such inferior courts of local jurisdiction as may be established under said section 1.

For this reason I am of the opinion that the act confers no judicial power upon the Water Commission, and if it purported to do and so far as it may purport to do so it would be and is without effect. The consequence is that any award it assumed to make in the exercise of such purported judicial power would be absolutely void and that certiorari would not lie to review its action in that regard.

[Sac. No. 3014. In Bank. December 13, 1921.] ROBERT B. REYNOLDS, Appellant, v. CHURCHILL COMPANY (a Corporation), Respondent.

[1] PUBLIC LANDS-ISSUANCE OF PATENT-MANDAMUS-RES ADJUDICATA. In a proceeding in mandamus originally brought in the supreme court to compel the state surveyor-general to issue a patent to land owned by the state based upon a certificate of purchase alleged to have been validated by an act of the legislature, the judgment dismissing the proceeding is conclusive on the state and of the rights of the petitioner under such certificate both as to the claims set forth therein and as to any others which might have been presented.

[2] ID.-CONTEST-EVIDENCE-JUDGMENT IN MANDAMUS PROCEEDINGCONSTRUCTION.-Where, during the pendency of a contest between private claimants for the right to purchase state lands, one of them brought a mandamus proceeding in the supreme court to compel the state surveyor-general to issue a patent to the petitioner, notwithstanding the pendency of the contest, the judgment dismissing the proceeding is binding upon the petitioner and admissible in the trial of the contest, notwithstanding the recital therein "that the rights of the contestants are not foreclosed by our decision herein" (178 Cal. 554), since from the nature and

character of the decision, as well as the context, the term "contestant" was intended to refer to the rights of those who were contesting the claims of the petitioner, and the court did not intend to change the usual effect of the whole opinion and judgment by such clause.

[3] ID.-UNSEGREGATED SWAMP AND OVERFLOWED LAND-SALE.-Under section 3493m of the Political Code, swamp and overflowed land is subject to sale, even if unsegregated.

[4] ID.-SHORE OF LITTLE KLAMATH LAKE.-CHARACTER OF LAND.-In this contest between private parties for the right to purchase, as swamp and overflowed land, certain land forming a part of the bed of Little Klamath Lake, the conclusion of the district court of appeal that the government surveys of 1873 established the character of the land as sovereign and not as swamp and overflowed land is held to be erroneous, and that it cannot be declared as a matter of law, from facts of which the court takes judicial notice, that the land is not swamp and overflowed land.

Es

[5] ID.-CONTEST-STATE NOT A PARTY-JUDGMENT-LACK OF TOPPEL.-While it is made the duty of the state surveyor-general under section 3416 of the Political Code to issue his patent or certificate to the successful party in a contest for the right to purchase state lands, the state is not a party to the contest and is not estopped by the judgment therein.

[6] ID. STIPULATION AS TO CHARACTER OF LANDS-FORECLOSURE OF INQUIRY EVIDENCE.-Where, in a contest for the right to purchase state lands, both parties claimed that the lands were swamp and overflowed lands, such question was not an issue, and evidence as to the character of the lands was, therefore, wholly ineffectual and immaterial.

[7] ID.-DECISION AS TO CHARACTER OF LAND RIGHTS OF UNITED STATES.-A decision of the supreme court in a contest between private persons for the right to purchase land on the shores of Little Klamath Lake that the land is sovereign land is not prejudicial to the rights of the state as against the United States growing out of the act of the legislature (Stats. 1903, p. 4), ceding certain lands in such lake to the United States for reclamation purposes, the government not being a party to the proceeding.

APPEAL from a judgment of the Superior Court of Siskiyou County. James F. Lodge, Judge. Reversed.

The facts are stated in the opinion of the court.

A. B. Reynolds, C. E. McLaughlin and Leon Samuels for Appellant.

A. E. Bolton, Arthur W. Bolton and Tapscott & Tapscott for Respondent.

William V. Cowan and Johnson & Lemmon, Amici Curiae.

U. S. Webb, Attorney-General, and R. T. McKisick, Deputy Attorney-General, for State of California.

WILBUR, J.-This is a contest instituted by the plaintiff in the office of the surveyor-general of the state and by him referred by proper order to the superior court of the county of Siskiyou, as provided in sections 3414, 3415 of the Political Code. The plaintiff claims a right to purchase land involved by reason of applications made in the office of the surveyor-general in 1917 and contests the prior application and certificate of defendant's assignor. The defendant claims the right to purchase the land under and by virtue of an application filed in the office of the county surveyor of the county of Siskiyou in 1872 and certificate of purchase issued therefor October 4, 1874. The court rendered judgment against the plaintiff, and held valid the certificate of purchase under which defendant claims, and ordered that a patent issue to the defendant upon payment of the fees provided by law. The plaintiff appeals.

During pendency of this contest the defendant petitioned this court for a writ of mandamus to compel the issuance of a patent to it, notwithstanding the pendency of this contest. (Churchill Co. v. Kingsbury, 178 Cal. 554, [174 Pac. 329].) In that original proceeding the facts were stipulated, as to the character of the land, and the petitioner's application and certificate therefor. The proceeding was dismissed.

Under the trial of this contest the plaintiff offered in evidence the proceedings in the mandamus case, and defendant's objection thereto was sustained.

The appellant claims that the respondent is concluded by the judgment of dismissal in the mandamus case, and we will consider this point first.

The history of the respondent's claims is fully set forth in the opinion in Churchill Co. v. Kingsbury, supra. The proceeding was dismissed because the court concluded that under the stipulated facts the land in question was a part of the bed of Little Klamath Lake, which was stipulated to be

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a navigable body of water, and hence that the land was owned by the state in its sovereign and not in its proprietary capacity, and that the sale thereof was not authorized by the act of 1893, relied upon by the petitioner as validating its prior certificate of purchase (Stats. 1893, p. 341, subsequently codified [1907] as secs. 3493m to 3493t). The petitioner in the mandamus case claimed that the land was sovereign land uncovered by recession, and that the statute of 1893 validated the certificate. The surveyor-general, on the other hand, claimed that the lands were swamp and overflowed lands. The court determined the matter of fact in accordance with the petitioner's contention, but held that the statute of 1893 did not validate the petitioner's certificate of purchase, for the reason that the land in question was not uncovered by the recession of the lake within the meaning of the law of 1893 relied on by petitioner therein.

In this contest both parties alleged in their pleadings that the land was swamp and overflowed land, and so stipulated as well. The defendant also introduced evidence which it claims established the fact that the land was swamp and overflowed land, and the trial court found as a fact that the land was notoriously swamp and overflowed land. On appeal the district court of appeal, third district, held that, notwithstanding the stipulation of the parties, it would take judicial notice of the fact that the land was sovereign land of the state, as shown by the government surveys of record in the office of the United States surveyor-general of this state and the United States general land office. Both parties filed petitions for transfer to this court, and the attorneygeneral also upon leave filed a similar petition, all contending that the land is swamp and overflowed land. The case has been briefed and argued in this court. The respondent and the attorney-general both claim that the mandamus proceeding is not res adjudicata in this proceeding and both seek to distinguish the facts in proof herein and as stipulated therein.

[1] We have reached the conclusion that the mandamus proceedings are conclusive of the rights of the respondent to purchase the land under its certificate of purchase. In the mandamus proceedings the surveyor-general of the state of California represented the state, and the judgment in the case as to the validity of the defendant's certificate of pur

chase is binding upon the state of California and upon the petitioner in mandamus. It was so held in Bernhard v. Wall, 184 Cal. 612, [194 Pac. 1040]. In that case an applicant for the purchase of public land had been successful in a mandamus proceeding. This court, in discussing the effect of the judgment in mandamus, said:

"That judgment was an adjudication that the Parkinson foreclosure was valid, and that the tax deed was invalid. It was conclusive, not only of the matters actually alleged in opposition to the writ, but also of any fact which might have been alleged and proven in that proceeding to show that Bernhard was not entitled to the relief given by the judgment. (Crew v. Pratt, 119 Cal. 149, [51 Pac. 38].) It follows, therefore, that if the tax deed on the Foster assessment would have been a defense to the mandamus proceeding, it would have been the surveyor-general's duty to plead it therein, and, failing to do so, he would be forever estopped to claim that it was defense. Unquestionably, that judgment was a final adjudication of the right of Bernhard, binding on the surveyor-general in his official capacity. He is the state official in charge of all matters pertaining to the disposal of the public lands of the state. He is ex-officio register of the state land office (Pol. Code, sec. 497). His duties in relation to public lands are prescribed in sections 3395 to 3573, inclusive, of the Political Code. In any proceeding against him to compel him to perform an official duty in disposing of the public land, he represents the state, and the judgment rendered in such proceeding is in all respects binding and conclusive against the state to the same extent that it binds the officer in his official conduct with respect to the matter decided. Such a judgment bars the state from afterward setting up to the contrary of what is there adjudicated. . . . It therefore follows that the right of Bernhard to have his application to purchase and his deposit of money accepted on the eleventh day of May, 1903, was conclusively determined by that judgment, not only as against the surveyor-general, but also as against the state. The state and all its officers were thereby estopped to deny such right, or to claim that thereafter in disregard of that right, it had regularly or lawfully disposed of the land to other and subsequent applicants, or that it could so dispose of it, so long as Bernhard's right continued."