The marginal orders of Jimeno and Alvarado were void. (Malarin v. United States, 1 Wallace, 289; Graham v. United States, 4 Wallace, 261; Pico v. United States, 5 Wallace, 539; Waterman v. Smith, 13 Cal. 411; United States v. Fremont, 17 How. 558.)

         JUDGES: Crockett, J. Mr. Justice Rhodes did not express an opinion.

         OPINION

          CROCKETT, Judge

         [The foregoing opinion was delivered at the April Term, 1872. A rehearing was granted, and after the rehearing the following opinion was delivered.]

         By the Court:

         The argument on the rehearing has wrought no change in the views expressed in the opinion heretofore delivered in this cause, unless, possibly, in respect to the power of Governor Alvarado to vacate and annul the grant to Marquez and Reyes, under the circumstances disclosed in the record. In the view we take of the case it is unnecessary to decide that point, and we prefer to reserve our opinion upon it until some case shall arise in which it shall be our duty to decide it. We think it is clear in this case that the marginal order entered by the Governor, on the 18th December, 1839, on the deposition of Carillo, and a similar order entered on the twentieth of the same month, on the expediente of Marquez and Reyes, were not intended to be, or understood by him, as a final adjudication of the rights of the parties. Whatever doubt might arise on this point, looking only at the face of the orders themselves, is dispelled by the subsequent action of the Governor; for we find that on the fourth of the following February he addressed a communication to the Prefect, directing him to summon before him " the parties--Sepulveda, Marquez and Reyes--to appear and offer all the proofs, and plead whatever each party may believe most convenient to his right--allowing said parties sufficient time for said purpose; and shall also order that the possession of the land in dispute be suspended until a new resolution be given therein. After this is done the expediente shall be returned to the Governor, with full report by said Prefect, stating the merits and circumstances of the individuals, and give every other information proper to illustrate the matter, in order that a just decision be given in this case." This order was made on a petition of Marquez, remonstrating against the injustice of the proceedings, by which Sepulveda was seeking to deprive Marquez and Reyes of the land. In obedience to the order of the Governor, the Prefect summoned the parties before him, heard their statements, and took the testimony of witnesses, and, on the seventh day of March, made his report to the Governor, to the effect that Marquez and Reyes were entitled to the land, and that Sepulveda had no just claim to it. Afterwards, on the twenty-seventh March, the Governor transmitted the expedientes to the Departmental Assembly, accompanied by a communication, in which--referring to Sepulveda and Marquez and Reyes--he says: " Neither of these individuals present any document of possession or grant that represents those lines that had been marked out, when the lands in question were adjudicated, because formerly these formalities were not observed in the lands granted near the pueblos by these Ayuntamientos, for the reason that they partook of the character of provisionals; but now that each one of these old neighbors desires to secure his possessions under the regulations established by the colonization laws, they must necessarily enter into disputes, and the Government occupies much of its time in settling their differences. For that reason, and for the object of giving this business the resolution most just, your Excellencies will be pleased to examine what you may think convenient, in view of the documents to which I refer." The Departmental Assembly proceeded to consider the subject, and the result of their deliberations is stated in the opinion heretofore delivered. Their conclusion was, in substance, that the several parties should remain in possession " of their known tracts of land, without intruding upon the lands of each other," and that after the ejidos of Los Angeles were assigned " the Governor will grant in favor of whom he may deem convenient and be of justice." Nothing further appears to have been done affecting these titles during the administration of Governor Alvarado, and the Departmental Assembly took no further step in the business. These transactions demonstrate beyond cavil that neither the Governor nor the Departmental Assembly considered the marginal orders of the eighteenth and twentieth December as final in their nature, or as concluding the rights of Marquez and Reyes. On the contrary, it is clear that the controversy was left open until after the ejidos should be assigned, when the Governor would be at liberty to make such disposition of it as justice might demand.

         We cannot be reasonably expected, after the lapse of more than thirty years, to attribute to these marginal orders a final and conclusive effect not attributed to them by the Governor himself, or by the Departmental Assembly.

         The result at which we have arrived is the same as announced in our former opinion, which will stand as the opinion of the Court, except as herein modified or explained.

         Judgment affirmed.