Mullender

—Ejectment to recover possession of certain lands alleged to be tide-lands of the Bay of San Diego, and for damages for withholding possession thereof. The defendant demurred to the complaint, and the demurrer was overruled. Defendant failed to answer, and judgment was entered for plaintiff for possession of the land, and from that judgment the defendant appeals.

In addition to the demurrer, the defendant moved to strike out paragraph 4 of the complaint, on the ground that it was irrelevant, and that motion was granted, and from that action of the court the plaintiffs appeal, and by stipulation both appeals are brought up in the same transcript and are submitted together. Plaintiffs’ appeal involves the question of the right to recover damages for withholding possession of the demanded premises.

Defendant’s appeal presents the more important question, and will be first considered.

Defendant’s demurrer is based upon the alleged unconstitutionality of an act approved March 18, 1889 (Stats. 1889, p. 305), creating the board of state harbor commissioners for the Bay of San Diego.

1. It is contended that said act violates section 24 of article IV of the constitution, which…