Joseph McKenna

“ The offer and acceptance must have the characteristics of a bargain, must be conventional counterparts, as in the cited cases, and of which we may say generally franchises were offered on one part and accepted on the other by the undertaking of works costly to construct and costly to maintain, and from which the public derived great benefit. ”

“ We have seen in the case at bar that Banning applied first in 1866. His application was permitted to repose in the files of the county or state officers until 1878, when activity upon it was provoked by another application.
Plaintiffs in error have been unable to cite a single decision in sanction of their contention. The supreme court refers to one (Hinckley v. Fowler, 43 Cal. 63) , decided in 1872, as possibly being urged to support it. If we may venture to express our understanding of that case, we should say that it is seriously disputable if it so decides. ”

“ What he has done prior, the expenditures he has made, are but the qualifications to become a purchaser, not binding him to proceed, nor binding the state to wait for that which may never be done before it determines on other uses or disposition of the lands. ”

“ Judgment was entered in this contest November 26, 1879. This judgment decided Banning's to be the prior right. He made a first payment on the lands March 5, 1880. The certificate was issued April 10, 1880, and a patent executed December 16, 1881. The Constitution was adopted in 1879, as we have seen. And further, in 1872, the town of Wilmington was incorporated, and the supreme court held that by an act passed April 4, 1870, all lands within 2 miles of "any town or village" (Statutes of 1869-70, § 877) were excluded from sale. ”