The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1882-02-02

| ing the defendant. ETC., from lindering
aud obstructing complainant in the exc
cution and perioTmanee OF the Mercer
contract, and in obtaining the certificates
and patents of lands TO which the CON-
plainant and the said association are en-
titled under the terms aud conditions OF
said contract.
The relief is within the Jurisdiction of
the court, and il after the manner OF the
pro ,eedings in equity.
The complainant asks further fOrman-
datory injunction To restrain the defend
ant from refusing to issue to complainant
patents and certificates for thirteen hun
bred and seycnty-six sections OF land 10
which complainant j. entitled under the
contract, by reason of settlers Introduced
Hereunder. and to thirteen hundred aud
| seventy-SiX sections of land, TO which he
Is also entitled, under said contract. by
rendering In payment thereof twelve dol
lars in coin and SCRIP TO tue amount OF
500. or its equivalent in money for
each section. understanding said defend
ant from hinderinS him from locating
the said certificates and patents upon
any Of the vacant and unoccupied lands
of Texas within or without the limits of
the Mercer colony. etc.
This relief, no matter how just, | con-
ceive to be beyond the jurisdiction of the
court in this case for want OF proper par
ties.
The whole theory OF this case is
that the contract with Mercer created
an express trust, which by operation
of law and compact, devolved upon
the State OF Texas that the state
of Texas is now the trustee; the Texas
! Association the eestNi qUi trust; that the
legal title is in the state; the equitable
title in the Association. It has been We
hemently alleged by complainant and
adjudged by this court, that the state is
| not party to this suit.
The relief asked is in the nature Of
specific performance ofthe contract. or at
least amounts to Il decree for title.
For the court 10 grant such relief, it is
imperative that the party required 10 per-
| form, or who holds the legal title, should
| be before the court
Pomroy on Specific Performance, sec.
4S3. ct sea. Daniell's Oh. 1914, 1856
Perry on trust, sec. ST3, s74; see JUS
tiee Field in Saw. GSJ. and authorities.
can be multiplied to any extent.
1t will be noticed, too, that under the
contract, after the performance of GER
tain conditions precedent, with regard
to survey and selection of sectiOns), il is
the government of Texas that is TO CON-
vey, o. caused to be conveyed, the title
to the lands surveyed and selected.
To grant the relief asked, would
he TO compel the conveyance of III
tie from the state to complainant
of INDICATED and unsurveyed lands, and
allow the location and surrey of any OF
| the vacant lands OF the state-<which I
| conceive to be wholly outside of the con-
| tract, and, besides, would be taking
practical possession. under this and other
| injunctiOus asked. OF the land Office of
the state.
IN Hancock W.. Walsh Judge Woods
| says: ''This is not Il suit against the state,
and does not seek to deprive her OF the
power of dispOsing Of her own lands in
herOwn way, for the lands which il seeks
to appropriate are not the property of the
state" . Woods, 366.
Under the act of May L, 1916, sec. 1862
OF the code Of 1879, which was in force at
the institution of this suit, il was re-
quired that "every patent for land ema-
mating from the state should he issued in
the name, and by the authority, OF the
Estate. under the seal of the general land
| Office, and shall he signed by the govern
or and e0untersigned by the commas
| sioner of The general land office"
In the act of 1879, denOminatcd by
counsel as the Construction act"
il Is provided that before any certificate
/ for land reserved by the commissioner
of the land office, in cases where the com
sioner has doubts or where there is Il suit
| to compel or restrain the commissioner
in the issuance of certificates shall have
any force or effect. the same shall be
submitted to and be couutersigned by
the governor Ot the state.
Ii is urged that this obstruction law
must ne disregaTded. because passed
| since the institution OF this suit, with a
| view To affect the remedies To be granted
by the court, and that II impairs the vest
ed rights of complainant under his con-
| tract
| am not prepared TO say that complain
ant, under the Mercer contract, acquired
any vested right as TO the forms aud man
| III. AZ. 4
to pass or he conveyed If he did. he il
remitted to the laws in force at The time
of the making OF the Contract.
An examination of the laws of the re-
public. in force at the making Of the con-
tract, fails to show any authority for the
commissioner to issue land certificates.
| Many other officers aud boards could is
sue them, but not the commissioner.
The contract Itself provides for no GER
tideates 20 be issued by The commiss Ouer.
! As / view the matter. therefore, under
the laws OF Texas, to upei ate the con-
Yevance OF title emanating from the
state to public lands, either by patent or
certificates, the act of the governor OF the
state is necessary, and the governor is
no party to this SUIT.
The ease of Davis VS. Gray, affirming
Osborne vs.. United States Bank on the
subject OF making, and requiring the state
to he made, party where the state is
concerned, is very strong. and | feel
| bound 10 go as far rs that ease. but (
must leave 10 the supreme court to go
further, or declare the law that the courts
of the United States can go further.
Article IL of the amendments TO the
constitution OF the several states. To
cOnstrue IL so as to allow the property of
a state to be alienated or conveyed in a
suit against a subordinate official of the
state is not only to nuliify the amend
| inf To tho fat i'm a
plight than If the amendment had not
been adopted, for without the amend
ment the state would always have her
day in court.
The complainant also asks an injune-
ton. to restrain the defendant. as land
commissioner of the state, from Issuing
any further patents and certificates for
any ofthe vacant and Indicated lands of
the state beyond and outside OF the Mer-
Ger colony limits to any person whatso-
ever, until the just demands of the COM
plainant, arising under the Mercer con-
tract and the public trust, created by the
compact OF annexation, to hold the public
lands for the payment of the debts and
liabilities of the republic, are fully COM
pensated and satisfied.
This demand involves the propositions
That the treaty or compact of auneXa-
ton created such trust in IA
vor of the creditors of the re-
. |
courts of equity. In other words, that it
contemplated that any creditor might
sue the state and obtain IA decree for the
sale of sufficient of the public lands to
satisfy his demand / doubt If any such
trust was contemplated or created, par
ticularly in the face of the inhibition Of
the constitution of the United States as
: to the right to sue a state in the courts.
That 4 great public trust was
, created that the public faith was pledged,
that the state of Texas may be found In
/ morals and good faith, to apply the pub
I lie Land as stipulated in the treaty.
agree, but L doubt the power and author.
ity of The circuit court of the United
States, sitting as a court OF ehancery, to
enforce these obligations.
The learned solicitors for the defend.
ant have, with great ingenuity and force
argued to the court several propositions
. that will merely advert to.
) They claim that no injunction should
/ issue in this case, as it would be vain
, and useless order, so far as giving any re-
, lief TO complainant is concerned. 1t does
not seem so to me. Preventing the fur
I | ther waste of the trust estate prevent
/ | ing further clouds from being thrown oil
q eomplainant's equitable title. and pre-
i venting defendant from further obstruct.
4 ing complainant in the assertion of hii
rights. would seem considerable, valuable
J., and effective relief.
ills further said by solicitors that com
plainant should be RENTED 10 the pOiit
: zeal department OF the state
: government for the relief hi
case demands. do so romit him
but at the same time, grant there relic
> las 1 am bound to do), that find he Is Ell
| Titled to from the court, and the court aid
, him to protect his property until the con