The above-entitled cause was heard in Department and the following opinion and decision handed down:

In appellant’s petition for hearing before the court in Bank which followed, the very just complaint was made that the Department had omitted to discuss and to pass upon the asserted error of the trial court in refusing to admit in evidence a judgment-roll in an action previously brought by the plaintiff under the McEnerney Act, by the judgment in which action, which had become final, the title of appellant to the land in dispute had been quieted against all the world. Upon this showing a hearing before the court in Bank was ordered primarily for a consideration _ of this ruling of the trial court in refusing to admit this judgment-roll in evidence.

The McEnerney Act is drafted as its very title imports for the twofold purpose, first, of restoring records of title destroyed by public disaster as in the fire succeeding the earthquake of April, 1906, in San Francisco, and, second, to quiet the title of the plaintiff or petitioner after such restoration. It is an action in rem. (Title etc. R. Co. v. Kerrigan, 150 Cal. 289 , [ 119 Am. St. Rep. 199 , 8 L. R. A. (N. S.) 682, 88 Pac. 356 ]; Hoffman v. Superior Court, 151 Cal. 386 , [ 90 Pac. 939 ].) An inspection of the judgment-roll offered in evidence discloses, first, that the city and county of San Francisco was not named therein as one of the persons, parties, or corporations claiming ,an interest in the property, and that, therefore, there was nothing in the action to bring directly to the attention of the authorities of the city and county of San Francisco the fact that the city’s rights were or might be involved. Second, it is made to appear from the evidence taken by the court upon the question of the right to introduce this judgment-roll that the city and county of San Francisco did not appear in that action: “The Court: The city and county made no claim ? Mr. Pringle: No, your Honor.” Third, that in plaintiff’s affidavit declaring the names of the persons whom affiant knew or believed to claim an interest in the property no mention is made of the city and county of San Francisco. In the present action the. city and county of San Francisco did appear by answer asserting ,its rights in the disputed property as a public highway of the city.

It is apparent, therefore, that the binding and conclusive force of the earlier judgment as against the city and county of San Francisco must come, if it exists at all, from the fact that a judgment under the McE'nerney Act, valid on its face, is a judgment in rem and so “binding on the whole world,” unless and until set aside under familiar equitable principles.

That the judgment here offered is valid upon its face cannot be disputed. As little may it be questioned but that such a judgment is conclusive upon all private rights and so is conclusive against all the rights of private persons, individuals, associations, and corporations whether in the judgment named or unnamed. Thus beyond question this previous judgment was binding upon all the private litigants in the present action.

It is to be considered, however, what may be its binding force and effect upon the state itself and upon the state’s public agencies and mandatories such as for some purposes municipal corporations always are. In brief, our inquiry is, What was the effect of this previous judgment upon the city and county of San Francisco present and objecting to its introduction as an estoppel against its own claim? Law is a rule of conduct dictated by the superior, the state, for the conduct and control of its people. It is only by its own grace that the state ever becomes subject to the operation of its own laws, and while in later governmental development the state frequently makes declaration that it will submit its own rights to determination in its own or other courts, yet, as such declarations are always in the nature of impairments of the sovereign power, this submission of the state is never inferred in favor of the private litigant, but must be found either actually expressed in an act or by fair intendment and interpretation to belong in the act. It is unnecessary to cite illustrations of this. They are too familiar. Suffice it to refer to the fact that title by adverse possession as against the state can only be secured under such permissive law. The mechanic’s lien law of universality in its operation does not apply to the land and buildings of the state.

A reading of the McEnerney Act discloses not only a failure by the state to declare itself bound by decrees so obtained, but makes manifest that the statute was dealing only with the private rights of private persons. Giving to “persons” its broad and indubitable meaning, the statute was dealing with the private rights of individuals, associations, copartnerships, and corporations other than public agencies acting in their public capacity. A sovereign state is not a person.

Certain consideration briefly stated must serve to confirm this view. Sections 749, 750, and 751 of the Code of Civil Procedure were the law of this state before the adoption of the McEnerney Act. A reference to the language of these sections and to the language of the McEnerney Act will disclose that in some respects the latter act carefully followed the language of the earlier sections of the code dealing, as does the McEnerney Act, with the determination of adverse claims to real property and to the quieting of title. In section 751 it is declared that a judgment so obtained against persons known and unknown “shall have the effect of a judgment in rm except as against the state of California and the United States.” The McEnerney Act was passed to enable private owners to clear up the multitudinous questions that inevitably arose by the destruction of the records of their titles, for in this state the utmost dependence in all land transactions had come to be placed upon such records. In its essence it is a private statute taking on its unquestioned public character from the very multitude of private interests which were involved. Nothing in the language of the statute even conduces to the belief that it was designed that claims held by public agencies and public mandatories for the sake of the public, as in the" matter of highways, parks, wharves, and the like, would ever be determined in such an action, at least, without notice to the agencies charged with the duty of protecting the public rights. In this sense the city and county-of San Francisco is a representative of the state. The state’s exclusion from the scope of such judgments is the exclusion of the city and county of San Francisco. We do not mean here to be understood as saying, for we do not decide that such an agency may not be brought in by .appropriate pleading and that so brought in the conflicting rights may not be heard and determined. What we do hold is this, that unless those rights have been so heard and determined, the judgment in rem rendered will not be held to include them nor the trustee or agency charged with the duty of maintaining and upholding them. -

We think this to be a perfectly sound enunciation of the underlying legal and equitable principles involved, but, in addition, the argument of inconvenience has its force. It would open the door, upon the one hand, to great frauds, upon the other hand, to great labor and expense upon the part of municipalities, if, under circumstances such as here presented, such a decree could deprive without the slightest notice to the municipality, and without anything other than the constructive notice to put it on its guard, a city of its public park, of a portion of its streets, or of a section of its waterfront; while to avoid this, if such were the law, would entail the onerous labor and expense of an examination of every pleading in every action brought under this act.

It is concluded, therefore, that while as between these private litigants the judgment-roll was admissible as a determination by the estoppel of a judgment of their private rights pro and con over the private rights of way, that as against the city and county of San Francisco contending for the existence of a public highway the judgment was without force and was properly refused admission in evidence, and as this conclusion, for the reasons given in the Department opinion above set forth, is determinative of the question here in controversy against the contention of appellant, and as the other propositions advanced for reconsideration before the court in Bank have been adequately and satisfactorily treated in the Department opinion, the judgment appealed from is affirmed.

Rehearing denied.