delivered the opinion of the Court, Crockett, J., Rhodes, C. J., and Wallace, J., concurring:

This is an action to determine conflicting claims of right between the plaintiff and defendant, Buckman, to purchase from the State lands in lieu of school section sixteen, which had been previously taken by private claim.

The complaint alleges that plaintiff’s grantor made application for the lands in controversy on the 21st November, 1867, and on the same day, bjr deed duly executed, transferred all the applicant’s interest therein to jolaintiff, and alleges the necessary steps on the part of plaintiff to entitle him to a certificate of the Surveyor General, which would authorize the County Treasurer of Mendocino County to receive payment from plaintiff on said lands, but that the Surveyor General refuse to approve the location in plaintiff’s behalf, or to give him the required certificate of purchase; and further alleges that defendant, on the third day of December, 1867, made application to purchase the same lands, and filed with the proper locating agent certain affidavits, which application and affidavits said locating agent forwarded to the Surveyor General, whereupon the Surveyor General entered into the record-book of his office a statement of the case, together with a direction that said parties are referred to the Seventh Judicial District Court, Mendocino County, for- a final determination of their conflicting claims or contest for said land.

The answer of defendant denies that the Register or Receiver of the United States Land District in which the lands in controversy are situate, or either of them, accepted the selection of said lands as made by plaintiff’s grantor, Purdy; denies that said Purdy, desired to purchase said lands; alleges that plaintiff was desirous of purchasing the same, but being disqualified from so doing by reason of having, before said application in the complaint mentioned, in fact *679located in his own name, and indirectly in the name of others, for his benefit, more than three hundred and twenty acres of land within the State of California, under the Acts and law mentioned in plaintiff’s complaint; and further avers that the application by plaintiff’s grantor, Purdy, for the land, was made at the instance and for the benefit of plaintiff; that plaintiff paid all the expenses of the application, and as soon as the same was made and filed with the affidavits of Purdy, he, Purdy, on the same day, without any consideration, conveyed the lands so applied for by deed to plaintiff; and further', by way of cross complaint, the answer alleges facts showing defendant’s right to a certificate of location and purchase of said lands, upon his subsequent application of December 3, 1867, and prays the judgment of the Court that he is so entitled.

To this answer plaintiff demurred on the ground that the new matter and affirmative allegations of the answer do not state facts sufficient to constitute a cause of action in favor of defendant against the plaintiff, nor to entitle defendant to affirmative relief.

The demurrer was overruled, and plaintiff having elected to stand upon his said demurrer, the Court rendered judgment against plaintiff and in favor of defendant.

The question presented by the demurrer is, whether, under the statutes of this State, in force in November, 1867, providing for the sale and regulating the mode of acquiring the title from the State of the sixteenth and thirty-sixth sections of lands donated to the State by the General Government for common school purposes, or lands in lieu thereof, there was any limit to the quantity of such lands authorized to be located or purchased by any one person. The demurrer admits the allegations of the answer, that prior to the application of Purdy for the location and purchase of the lands in controversy, plaintiff had acquired by location in his own name, and indirectly by locations of third persons for his benefit, more than three hundred and twenty acres of land in lieu of the sixteenth and thirty-sixth sections of land donated to the State for school purposes, and that the application of Purdy for the lands in controversy was indirectly *680the apjilication of plaintiff; hence, if the laws in force at the time of such application by Purely, limited the quantity of land authorized to be located and purchased, of this character, by or for the benefit of one person to three hundred and twenty acres, then Purdy’s attempted location of the lands in controversy for the benefit of plaintiff was unauthorized and nugatory, and defendant was entitled to an approval of his location of the sanie lands and to a certificate of purchase of the same by virtue of his subsequent application.

The Act of April 23, 1858 (Statutes 1858, p. 248), provided for the location and sale of the unsold j)ortion of the five hundred thousand acres of lands donated to the State for school purposes, and the seventy-two sections donated to the State for the use of a seminary of learning, provided for the appointment and commission by the Governor of a locating agent for each of the United States land districts of the State, defined his duties, and also provided for the location by such agents of lands in lieu of any sixteenth or thirty-sixth sections or parts of sections appropriated by law to other uses, etc.

The fourth section of this Act reads as follows: “The agent shall not locate more than three hundred and twenty acres, either directly or indirectly, for any one person. ”

By the Act of April 22, 1861 (Statutes of 1861, p. 218), amendatory of and supplemental to the above Act of April 23,1858, provision was made for the sale of lands selected in . lieu of the sixteenth and thirty-sixth sections of school lands, but no amendment was made to Section 4 of the Act of 1858, limiting the quantity located for any one person to three hundred and twenty acres, nor was this Section 4 amended or directly repealed until the Act of March 28, 1868, several months after both plaintiff and defendant claim to have located the land in controversy. If this Section 4 was in force in, November, 1867, when the lands in controversy were attempted to be located by Purdy for the benefit of plaintiff, then his demurrer to defendant’s answer was properly overruled, and the judgment must be affirmed. But it is claimed by plaintiff that, although this Section 4, limiting the quantity of land authorized to be located for any one person to *681three hundred and twenty acres, was never amended or directly repealed prior to the Act of March 28, 1868, yet it was, with some other sections of the same Act, superseded and amended by the Act of April 27, 1863 (Statutes 1863, p. 591), entitled “An Act to provide for the sale of certain lands belonging to the State. ” This last Act provides for the salo of ‘ the one hundred and fifty thousand acres of land granted to this State for the use of an Agricultural College, by Act of Congress of July 2, 1862,” creates a new State Land Office, and makes the Surveyor General of the State ex officio Register of the State Land Office, and defines his duties as such Register. This statute also contains provisions, which to some extent modify and supersede previous statutes providing for the location and sale of the unsold portion of the five hundred thousand acres granted to the State for school purposes ; the unsold portion of the seventy-two sections granted to the State for a seminary of learning; the unsold portion of the ten sections granted to the State for the erection of public buildings, and the sixteenth and thirty-sixth sections granted for the use of public schools, or lands in lieu thereof; and the last section repeals all Acts and parts of Acts in conflict with the provisions of said Act.

This Act very clearly was not, nor was it designed to be, a substitute for the entire Act of April 23, 1858, above referred to, or a revision of all previous Acts providing for the location and disposal of the several classes of lands embraced within its terms; hence, only such portions of prior Acts, relating to the same subject, are as repugnant to or in conflict with its provisions, were thereby superseded or repealed. The fourth section of the Act of 1858 limited the quantity of land of the five hundred thousand acre grant, the seventy-two section grant, or lands selected in lieu of the sixteenth and thirty-sixth section grant, authorized to be located either directly or indirectly for any one person to three hundred and twenty acres; and no subsequent statute up to March, 1868, so far as we are at present advised, has changed or modified this limitation, nor in any manner evidenced an intention of the Legislature to abrogate or dispense with the limitation. This *682section was in full force and effect in November, 1867, and, being so in force, and plaintiff having already located of this character of lands to the full extent of the limit, as alleged by defendant’s answer, which is admitted by plaintiff’s demurrer thereto, his application to locate the lands in controversy could not have been legally approved.

That the Act of 1863 was not designed as a substitute for the entire Act of April 23, 1858, is clearly manifest from the very terms of the Act of 1863, the second section of which provides that “ the money received into the State Treasury from the sale of the one hundred and fifty thousand acres of land granted to this State for the maintenance and support of an Agricultural and Mechanics’ Arts College shall be converted into bonds of the civil funded debt of the State, issued since January, A. D. Í858, in the same manner as is provided for converting school money into State bonds by Section 9 of an Act entitled an Act to provide for the location and sale of the unsold portion of the five hundred thousand acres of land donated to this State for school purposes, and the seventy-two sections donated to this State for the use of a seminary of learning, approved April 23, 1858.” These portions of the Act of 1858, and the amendments thereto, not in conflict or repugnant to the said Act of 1863, and not modified or clearly superseded by the terms of the latter Act, were left in full force and effect.

Judgment affirmed.

Temple, J., expressed no opinion.