49 Vroom. Attorney-General v. Sooy Oyster Co. he said was in form only a charge to a jury, but in fact it was an opinion disposing of the case, and prepared with a care and thoroughness commensurate with the magnitude of the interests involved, and the pains that great judge was accustomed to take. At common law the sovereign could not make an entry in person, but as was said by Mr. Justice Nelson in United States v. Repentigny, 5 Wall. 211, 268: "The mode of asserting or of assuming the forfeited grant is subject to the legislative authority of the government. It may be after judicial investigation, or by taking possession directly under the authority of the government without these preliminary proceedings." At common law the king could not maintain ejectment because by reason of his legal ubiquity he could not be dispossessed. 3 Bl. Com. 257. The difficulties in the way of entry and of ejectment were similar. When our legislature by section 12 of the act of 1869 authorized proceedings "by ejectment, or otherwise, against persons and corporations trespassing upon or occupying the lands of the state under water," it evidently meant to do away with the technical difficulties interposed by the common law. The words "or otherwise" can hardly refer to any proceeding against occupants as distinguished from trespassers unless by way of entry. Occupants, if not trespassers, are rightfully in possession, and the proceeding by the state must be in the nature of an entry to terminate that right. The actions provided for by this section were evidently common-law actions, since the act provides that the charges and counsel fees shall be taxed by the Chief Justice, not by the Chancellor. This statute itself is a sufficient answer to the suggestion that the only remedy of the state is by bill in Chancery. We may, in the absence of plea or suggestions to the contrary, assume that an action of ejectment instituted by the attorney-general for the protection of the rights of the state has been duly authorized; if not, that is a question between the riparian commission and the attorney-general, and want of authority to sue would afford no justification to the defendant in an action by the state if he is trespassing upon or occupying its lands. The Attorney-General v. Sooy Oyster Co. 78 N. J. L. real question is, therefore, whether it was competent for the attorney-general in the present case to show that any part of the lands belonged to the state, for if section 12 was meant to provide a method of testing the title, in addition to the method by bill in Chancery, and an equivalent for the right of entry by a private individual, it would be no answer to produce the grant under the great seal; that is the very thing to be questioned. In the determination of this question of title, the state made its prima facie case by proving that the lands were under tidewater. Such lands belong to the state unless they have been conveyed away. In answer to this, the defendant made a prima facie case for itself by producing the grant from the riparian commission. Such a grant is valid as far as affects lands under tidewater that are not natural oyster beds. The application of that grant to the locus in quo depends, however, upon the authority of the riparian commissioners. It is not a question of attacking a grant under the great seal, but of locating that grant upon the ground. If in so locating it, part of the land is found to be natural oyster beds, that part cannot pass to the grantee because the legislature has expressly forbidden the commission to make such a grant, and, so far as they exceed their powers, their act is not the act of the state at all. No one can contend that if the riparian commission made two grants which overlapped, either one on its face would be conclusive; it would be a question for a jury which grant was the earlier. It is true that a controversy of that kind would arise between private individuals, but can there be any difference in legal principle between the case of land previously conveyed which the state is therefore without power to grant, and the case of land which the legislature has forbidden the riparian commission to convey? As Mr. Justice Van Syckel said in Polhemus v. Bateman, 31 Vroom 163: "It is well settled that officers entrusted with power of sale exercise a naked power, and no title passes unless the conditions exist upon which the exercise of the power depends." 49 Vroom. He adds: Attorney-General v. Sooy Oyster Co. "A grant which, by the terms of the Riparian act, the riparian commission were disabled to make, and which, by the express language of the conveyance executed by them, they declared they did not intend to make, passed no title to the grantee, and could not have the effect to make the act of Polhemus a trespass." It is true that in that case the grant itself embodied the limitation of the statute, but Mr. Justice Depue, also speaking for this court, had previously said, in Fitzgerald v. Faunce, 17 Vroom 536 (at p. 594): "Under the act of 1871, no one but a riparian owner can apply, and the grant by the commissioners to anyone else would be ultra vires." If a grant which the commissioners were empowered to make to a riparian owner is ultra vires, when the grantee is not in fact the riparian owner, much more must their act be ultra vires when it attempts to convey land which the commissioners were expressly forbidden to convey. No machinery is provided by which the commission can determine either the fact of the ownership of the ripa or the fact of the existence and location of natural oyster beds. In truth, as I shall show, the latter fact has been left to the determination of another tribunal. The riparian commission may well make a general grant, and for the state's protection, rely upon the express language of the act of 1888, limiting its power, of which everyone must take notice. The fact that the great seal of the state is physically affixed cannot enlarge the grant. It is of no effect because affixed by the riparian commission, so far as they exceed the power given them by the legislature. The grantee taking the title from the riparian commissioners is, of course, chargeable with notice of the powers and the limitations upon the powers of the commissioners imposed by the public acts of the legislature, and if the act is unauthorized, he is conclusively presumed to know the fact, and acts at his peril, just as anyone who chooses to deal with an agent, with knowledge that the agent is transcending his powers. Attorney-General v. Sooy Oyster Co. 78 N. J. L. The error assigned is the exclusion of all evidence as to the character of the land conveyed. We must assume that the state could have proved that all the land was natural oyster beds and within the statutory prohibition. If this is so, there was no jurisdiction in the commissioners. If it is not so, it was permissible for the state to show the character of the land in order to ascertain the extent of the conveyance, precisely as in the cases of the mining grants at Leadville from the United States government, to be hereafter cited, it was permissible to show that the grantee under a placer patent knew of the existence of lodes and veins within its boundaries so that his conveyance from the government was less extensive than it purported to be on its face. I have likened the case of a grant of natural oyster beds, forbidden to be conveyed, to the case of lands already conveyed to another, where the state has no title. The comparison is not original with me. In 1815, Chief Justice Marshall, in delivering the opinion in Polk v. Wendal, 9 Cranch 87, said that the question was: "Is it in any, and if in any, in what cases, allowable in an ejectment to impeach a grant from the state, for causes anterior to its being issued?" He then held that it would be unreasonable to avoid a grant for irregularities in the conduct of public officers appointed to supervise the matter, and commented upon the greater advantage of a court of equity where the question was of essentials rather than of mere irregularities, and added: "But there are cases in which a grant is absolutely void; as where the state has no title to the thing granted; or where the officer had no authority to issue the grant. In such cases the validity of the grant is necessarily examinable at law." As re Numerous cases have followed Polk v. Wendal. cently as 1896, in Burfenning v. Chicago, St. Paul, &c., Railway, Mr, Justice Brewer said: "It has undoubtedly been affirmed over and over again that in the administration of the public land system of the United States, questions of fact are for the consideration and judgment of the land department, and that its judgment thereon is final. Whether, for instance, a certain tract is swamp land or not, saline land 49 Vroom. Attorney-General v. Sooy Oyster Co. or not, mineral land or not, presents a question of fact not resting on record, dependent on oral testimony; and it cannot be doubted that the decision of the land department, one way or the other, in reference to these questions, is conclusive and not open to relitigation in the courts, except in those cases of fraud, &c., which permit any determination to be. re-examined. But it is also equally true that when by act of congress a tract of land has been reserved from homestead and pre-emption, or dedicated to any special purpose, proceedings in the land department in defiance of such reservation or dedication, although culminating in a patent, transfer no title and may be challenged in an action at law. In other words, the action of the land department cannot override the expressed will of congress or convey away public lands in disregard or defiance thereof." So, in Noble v. Union River Logging Co., 147 U. S. 165, Mr. Justice Brown said (at p. 173): "It is true that in every proceeding of a judicial nature there are one or more facts which are strictly jurisdictional, the existence of which is necessary to the validity of the proceedings, and without which the act of the court is a mere nullity." He gives as an example of such a jurisdictional fact, without which the act is a mere nullity, the case where "the land department issues a patent for land which has already been reserved or granted to another person," in which case he adds, "The act is not voidable merely, but void." After distinguishing between such jurisdictional facts and those which he calls quasi-jurisdictional, he continues: "This distinction has been taken in a large number of cases in this court in which the validity of land patents has been attacked collaterally, and it has always been held that the existence of lands subject to be patented was the only necessary prerequisite to a valid patent. In the one class of cases it is held that if the land attempted to be patented had been reserved, or was at the time no part of the public domain, the land department had no jurisdiction over it and no power or authority to dispose of it. In such cases its action in cer |