The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1882-02-02
Copy OF Opinion.
UNITED STATES CIRCUIT COURT.

ease Of Cole Silver Mining Company VS.
The Virginia aud cold Hill Water Com.
pany, reported In l Sawyer 6Sj, re-
fused TO hear questions OF law previously
determined by the circuit judge in the
same ease, saying:
The circuit judge possesses equal an.
thOrity with myself in the circuit, and IL
would lead 10 unseemly conflicts II the
rulings OF one judge upon u question oil
law should be disregarded, or be open "a
review by the other judge in the same
case"
The proposition so evident upon its
face, acquires greater force when the tir-
cult judge is called upon TO consider the
rulings OF the circuit justice in the same
case. Section ., Fishers Pat. Cases, p.
100.
This case has been before this court 'OT
hearing upon demurrer and for injunc-
ton Dendsnte iite, and WIS heard aud de.
clded by my predecessor, Judge Woods,
now circuit justice ofthis circuit. Justice
Woods decision covers many pOints-is
full and elaborate, and Is reported by
himself in Woods, 3jl.
The points decided, as stated by the
judge himself, are
/. This salt, so far as il seeks to re-
strain the defendants action, is not a
suit against the state of Texas
=. The colonization contract made by the
Republic of Texas, acting by ). muel
Houston, president, on January -, 1874,
with Charles Fenton Mercer, was valid
and binding oh the republic.
3. By the terms Of the joint resolution
of the congress OF the United States, for
the annexation of Texas as Il state in the
union, she was allowed, rs one of the
conditions OF annexation, TO retain the
vacant and unapprOprlated lands within
her limits, 20 be applied TO the payment
Of al 1.f.f a..1 ltaI.f al A,
lie of Texas. This resolution having
been assented to by the convention of
Texas, IL is not within her power 10 re-
fuse compliance with its conditions.
4 Whether the resolution of anneXa-
ton and its acceptance 10y Texas is 10
be considered as II treaty or contract. IL
is equally binding on the state, and she
cannot escape from its obligations.
D. A state may become Il trustee.
6. A trust assumed by the republic
of Texas was not eXtInguished by
the formation OF the state of Texas, and
the annexation to the United States, hut
was fastened upon the state rs the sover-
eign successor of the republic.
.. Neither lapse of time, nor any de-
Tense analogous to the statute of limIta-
tons, can be set up by the trustee of an
express trust Us Il defense to his liability
To execute the trust.
An examination of the full opinion will
show that each of these propositions is
fully decided, upon reason, and sustained
by authority, as well as many other ques-
tiOns not stated In the syllabus.
So far, then, as any of these questions
now come up for consideration In deter
mining the rights of the parties now be-
fore the court, they must be taken rs
settled Tor this ease, in this court. If for no
other case nor avn other court; and for
further authority see Amora VS.. West
Wall. 90.
Since the decision on the demurrers,
and the motion for preliminary injunc-
ton, the complainant has, by leave OBJ
tanned of the court, filed an amended
bill. Said amended bill in addition to
the matters previously alleged In the
original bill, and In other bills of revIvOT
aud supplement, charges:
That the contract between the republic
aud Mercer created an express trust
as to all the lands embraced
in the limits assigned TO The
Mercer colony, which trust has never
been satisfied, reversed, abandoned nor
forfeited.
That by the stipulation attending upon
the annexation of Texas to the union,
an express trust was created upon all the
vacant and unupprOpriated lands retained
by Texas, to secure the payment Of all
the debts and liabilities OF the republic
That the rights required by Mercer and
his associates constituted one of the Ii.
abilities recorded by this express trust
resulting from annexation, and that the
said liability has never been satisfied, eX.
tingulshed nor forfeited.
That there was never any intention oil
the deputies OF the people in convention
assembled to declare any forfeiture OF
! colony contracts, or TO establish by any
constitutional enactment how and why
any forfeiture should be declared; and
that no method has ever been declared
by law for The forfeiture of such grants
| and the disposition OF the lands.
That, Notwithstanding the grant to Mer
eerand his associates, the defendant and
4 his predecessors in Office, without war
/ rant of law, have assumed and pre-
I tended to make and issue and deliver
| certificates and patents for lands within
the limits of the Mercer grant to numer
GUS persons not claiming through or un
! der prvity OF Mercer or the Texas Asso
citation, which persons have paid money
and made improvements in ignorance o
| their infringement on the rights OF tn,
/ Texas ascot alton, and that this has beef
\ done to such au extent that the remain
/ ing land within the limits OF the Merce
| grant are inadequate to satisfy the jus
! demands and rights of the complainant.
That complainant Is unwilling to inter
]
| as they have expended money and labo
I'm apparent good faith, and an inter
ference would result in great hardship.
That the defendant is Violating the pre-
liminary injunction Issued in this case
3 and cOnfederating with d M. Roberts
| governor of Texas, Is issuing certificate:
aud patents for lands in contempt of tbI
court, and to the great injury of com
! plalnant.
That defendant coniederating with sal,
Roberts has procured the passage of al
obstruction act by the legislature of tn,
state, which act makes II the duty of thu
| governor to countersign all certificate
and patents of public lands.
That the lands within the limits of TIL
Mercer colony, by reason of their location
an fertility, are more valuable than thu
other vacant lands In the state, and tina
If orator is driven to the other lands t,
satisfy his claim, quantity should compen
safe for quality.
! That under the constitution and law
of Texas, rs they existed when Mercer
rights attached, and when this suit wa
instituted, the records and surveys an,
plats and maps relating to the publ
lands were to be kept In general oflic
to be under the charge of general Ian
commissioner, who upon proper showin
should Issue patents for lands under tn
seal of the state. And that defendant 1
such commissioner in charge of such oil
fee, and that he and his predecessors
though duly denounced, have refused I
issue to orator and the Texas Association
such certificates and patents as tn
records OF the land office clearly shON
orator and the Texas association are ell
titled to have and receive, aud that unit
such delivery of certificates and patents
there is no duty deyolving upon any otl
er officer or department OF the govern
ment of the state, nor upon orator no
the Texas Association under the terms Q
the Mercer contract.
And the bill prays for discovery fo
the porpetuatiOn of the preliminary il
junctIon-ior further Injunction r,
straining defendant, rs general Ian
commissioner OF the state OF Texas, froI
issuing certificates or patents for any q
the vacant and unapprOprlated lands {
the state within or without the limits G
the Mercer colony grant. until orator
just demands are satisfied; for a mand,
tory injunction compelling the defen'
ants TO issue patents to orator for the us
OF the Texas Association, covering abOt
two thousand seven hundred and fift,
two sections of land, as grants, prem
ums and preemptions within the limii
OF the Mercer colony, or II not foun
therein, then Tor an equivalent from III
other vacant lands of the state, and IL
general relief, etc.
The defendant fled plea IN bar, and
disclaimer and answer, and a motion /
dissolve prior to the filing OF the anne nde
bill.
After the amended bill, he fled q ger
eral answer, which, of course waived b
pleas. and the original snswer WI
merged in the last quoral sworn answe
; This answer, containing the whole d.
tense exhibited, sets up:
1. A denial OF performance on the pa
OF Mercer and his associates, of the var
. Gus obligations devOlving upon them M
der the contract specifically, TO wit: