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

contract covered.
4. That tue contract was made against
the will. aud in contempt Of, the people
{ of Texas, having been made after bott
houses of the legislature had passed :
bill repeating the authority heretofore
given the president to make such con
tracts, and only the day before such I'll
became law by passing over the veto oi
the PRESIDENT. and that Mercer was wei
aware OF the opposition OF the people, rs
he was present attending on The session
attempting to procure from the congress
an extension of the Peters contract, in
which he was Interested.
{ .. That the opposition OF the people
! continued, aud that the convention Oi
/ 1915 adopted an ordinance denOuncing
| colony contracts rs unconstitutional and
/ void, and as operating a monopoly to the
/ exclusion OF citizens, soldiers and credit.
ors of the republic, and providing that
/ il should be the duty of the attorney gen
/ eral of the state or the district attorney
of the district in which any portion of the
/ colonies might be situated, rs soon as the
I organization Of the state should he com
plete, 10 institute legal proceedings
/ against all colony contractors, and pro
( viding that il any contracts should be
I found. upon such investigation, uncOn-
| stitutiOnal. illegal or fraudulent, or that
the conditions had not been complied
Z
should be adjudged null and void, but
without prejudice to actual settlers.
That said ordinance was adopted 10y a
vote of the people, and thereby became q
part OF the fundamental law of the land
and that the state organization was com
pleted February 10, 1876.
That i'm obedience TO said ordinance,
j. W. Harris, attorney general OF the
state OrTeXas. on the eleventh day of OctO
Der, 1916, filed a suit IN the district court
OF Navarro county. in which county part
of tue Mercer grant was sItuated-a suit
in the name of \. G.. Horton, governor
the state, tor and on behalf of said state,
as plaintiff, against Charles Fenton Mer-
Ger and his associates, as defendants, al
legin@ nOn-perfCrmance on the part OF
said Mercer and his associates, aud ille-
gality and uncOnstitutiOnality from the
beginning, and praying that the contract
he declared null and void from the be-
ginning. That said Mercer and his aSSo-
riateS were duly and legally GIted to APP
| pear and answer; and that thereafter, at
! the September term, 1913, the said suit
was fully heard and determined; and il
| was FULLY and finally adiud@ed and de-
creed, upon the verdict Of "a jury. that the
said contract of January 90, 1914, was
null aud void.
That such Judgment is still in full
force, unreversed and unavOidcd.
6. That the parties in that suit are iden-
teal in interest and priyity with
the parties To this suit, and that
the subject matter is the same that
Navarro county had jurisdiction, that
! Mercer and his associates were repre-
sented and had 4 lair trial, and that the
said judgment has the force of the thing
adopted and the same j. a full and com
| plete bar to this action.
I. That the state has never, by the act
n A Va 4 l.Nr fl.a at ut
August ~, 1870, nor by any other act,
recognized the validity of the Mercer
contract. On the contrary il has always
acted on the theory of its inValidity and
all legislation IN relation to its public
lands, or in relation 10 reliertO actual set
tiers In the Mercer colony limits, has
stipulated against the contractors taking
! anv benefit from the legislation.
=. That no trust has ever been created
in favor Of Mercer and his associates no
title has ever vested no possession has
been had, and that the complainant nor
the Texas Association are not entitled Ia
any of the public lands by reason Of said
contract either for settlers OF for pre-
miumS.
.. That defendant is sworn and bond
ed officer, governed by the laws of the
state, and that by law, approved April
! 10, 1871, when questions may arise,
| he is obliged 10 consult the governor
and follow his advice. That in this mat
/ ter he has advised with Hon. o. NJ. Rob-
! erts, governor, and has been instructed
/ by the governor not tn issue any certifi-
| Gates for land to said Mercer and asso-
! ciates, ana to those claiming by OF
through or under them, and that he is
| advised and believes that il would he u
breach of his official bond and violation
| of his official oath to issue any such Ger.
tlfcates to complainant or the Texas as
| ISOLATION.
| 10. That William Preston, complain.
ant, has no authority to stand in iudy
meht in this suit; that the members of the
/ Texas Association are the proper partie.
to this suit, aud this suit is defective for
want of such parties.
IL. That the settlers in the limits oil
! Mercer colony are Interested in the lands
| claimed, and that the bill j. defective fol
| the want of such parties.
/ II. Pleading the statutes of limitations
/ and staleneSS OF demand, denying Secre.
| cy and fraud, but claiming open and 10.
! tOriOus reputation by The state OF com.
plainant's demands.
And the orator denies conspiracy will
| the governor, denies having infringed thu
/ Injunction in this case, and makes all tine
discovery that defendant finds possible
| in the premises.
| To this answer a general replication /,
filed by the complainant.
This statement of the pleadings, takeT
in connection with the full statement o
the pleadings and facts, as reported in the
case of Hancock VS.. Walsh, ID which ref
erence IS made, shows the issues present
ed to this court.
The evidence offered and admitted oil
this hearing, is bulky aud volumi nous
aud cannot be recapitulated here, even
if necessary
The folio wing may he taken as tn,
substance, aud IL will be found sufficient
understand and support the decree al
lowed i'm the case:
The complainant has established tn,
contract between the republic, through
Sam Houston, president, and Charles
Fenton Mercer, and his associates, as al
legged in the bills; the entrance of Mer
GER upon the duties devolyiDg OIL
him under the contract; the or
ganiZation of the Texas Association
the appointment of surveyors and colOni
cation agents; the running of lines ant
surveys: the introduction of ll9 familie
within the first year of the grant; TIN
making of the survey of the bourdar.
limits of the colony grant by April /, 1e45
the settlement of 1856 families within tn,
limits of the colony prior TO October %
1913; the appointment of Mercer II
chief agent and trustee for the Associa
ton; the subsequent appointment OF Han
cock as chief agent; lIdhcOck'S deaf
and the appointment of Preston, hottie,
by the Association, as chief agent; tn
entrance of the gentlemen upon the per
Torrance of their duties as agents of tn
association, and the activity displayed b.
them respectively, in iurtherlng the oil
jects and interests of the colony and tn
Association. The employment OF counsel
the expenditure of money, and the pei
sistent applications made TO the politics
/ of TO nj 70 I'm lia
Further, the complainant has shown tina
Mercer, as agent. made reports as re
quired 10y contract, up To and for the yea
1S47, TO the government OF Texas; th1
Mercer is dead long since, and that all hi
papers and documents, among whic
. were copies of his correspondence an
reports in relation to the Mercer colony
have been lost and destroyed.
In short, the substance OF the Origina
bill is established.
There are only two points questiOne
seriously, as not yet proved.
1. Preston's right to act us chief ager
; and represent the Association.
.. The proof of the settlement of Ia
families prior to the expiration of tn
grant
As to the first point it is shown tbs
/ Hancock was chief agent In accOrdanc
/ with the articles of association wit
power to substitutes; that he died, and /
, his last will and testament. transferre
his shares to Preston and appointe
Preston chief agent. Ii Is shown ths
, Preston assumed the duties of ehiG
agent, and that his assumption has bee
: approved and ratified by the other shaT
holders.
; Any defect of Preston's authority I
represent the association, has been cure
, by notification. Ii is elementary in III
r law of agency that ratification OF the acI
of an agent amounts to us much and Ia