The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1883-07-05
FIRST LAND PAYMENTS.
IMPORTANT OPINION OF THE
ATTORNEY GENERAL.
Effect of Tenders Made when the
Money was not Receivable by
the State Treasurer


the State Treasurer
NOT FAVORABLE TO PARTIES TEN
DERING THE PAYMENTS.
The following letter was receive
by the state treasurer in answer t
his request for the opinion of tn
attorney general on the subject:
ATTORNEY GENERAL OFFICE,
AUSTIN, June "a, 1888.
Hon. F. Il. Lubbock, State Treasurer.
Sir--The answer to your communi
cation of May l ultimo, has been de
layed. for the reason that interested
persons desired that their counSe
might have time allowed them t,
present an argument upon the propo
Sition that it was your duty to receiV,
the money and execute proper re
ceipts therefor.
On the 2Sth OF last March
addressed you d communication, IL
which l advised that you were lef
without authority to receive the lirs
payments upon alternate sections o.
school land put on the market fol
sale under the provisions of the act OF
July 8, 1879, and the act amendatory
thereof, approved April 6, 1881, by the
passage Of a law on the 3rd of Febru
ary, 1882, withdrawing such lands
from the market.
The case | am now called upon tC
decide in regard to, differs in the prin.
cipleS governing it in no respect
whatever from the case concerning
which l advised you on the 18th oil
March ultimO
Then, L advised you not to receive
the first payment; here, the first pay
ment having been unadVisedly re-
ceived on certain lands without au-
thority therefor in the law, you ask if
you must receive additional pay
mentS.
The answer is that you should not
the payment to you of the money, at Il
time when you could not legally re-
ceive it, lid not improve the oondi-
tion Of the persons paying it. They
are us much without right us the man
who was urging you to receive the
first inStallment. 1t is too plain for
argument that if the state did not au-
thoriZe the payments of the money
for the land, the unauthorized pay
mand title to the land.
| have carefully read the argument
that has been presented in behalf of
the proposed purchases, but I find
nothing in it that leads me to change
my views or to hesitate about their
correctness.
1t is suggested in the argument that
the act of February 3, 1883, has no
reference to cases where the applica-
ton to purchase was made before its
enactment, for the reason that statute
should be given only prospective
operation. This is conceded, and is
the construction that has been put
upon the law, but in order to benefit
such cases as the argument is made in
behalf of, it would be necessary to
add or imply reservations or saving
clauses. This we are without au-
thority to do. The act uncondition-
ally takes the land off the market
1t must apply to all land that is not
sold, for land not sold was still on
the market for sale. 1t is true that
by taking certain steps or performing
certain prescribed acts a preference
right to purchase for ninety days
could be acquired, but preferred
right to purchase was all that was ac-
quired, and not the title, legal or
equitable. Only when the first pay
ment was made to the state was
it the duty of the officers to treat
the land as sold or to so enter it
on their books (Sec. 7. Chap. los, Ses-
sion Laws 18th. Legislature). Any
other construction would leave the
land for which parties had merely
made applications to purchase in a
somewhat phenomenal condition.
1t is not the property of the purchas-
er, for the law does not allow him the
right to sell it as his property until
the first payment has been made; nor
is it taxed as the property of a pri-
vate individual until after such pay
ment. 1t could not be sold for the
proposed purchasers debts nor admin
istered as a part of his property in
the courts of the country. Yet it is
insisted that it is not the property of
the state to which the law applies
withdrawing the public domain from
sale. II it is the states property, it is
giving no retrospective operation to
the law to say it applies to it. We
ty of the proposed purchaser. He
has got nothing more than pre-
ferred right to purchase, which is
on other persons and which
the officer of the state could be
made to respect if the law remains
but certainly since he is
Internationally free to conclude the
purchase or not, the state is not
bound to treat this shadow as prop
erty, and so shape its land policy as to
respect it as such. 1t is clear that the
Notwithstanding the con-
dition of such claims, was notoriously
before it.
Unless the laws of contract change
when the state becomes a party to
them, it cannot be said that there is
contract between the state and the
applicant for purchase, he having
done nothing to bind himself to take
the land, or to subject himself to the
least penalty for failing to do it;
neither is the state bound to the ac-
tion taken. So long as one party is
Internationally free, common JUS
tice demands that the other be left
likewise free. Until they are mu-
tually bound to each other, neither
should be held bound, nor will the
law of contracts under such circum-
stances permit either to be bound.
While the contract remains in such
condition that it grants the right to
recant or rescind, the law grants a
right to the other.-Eskridg
& Glover to Stew & Porter
(Ala.) 264:. Capt. Holmes & Co VS..
Simms, present term of our court of
The law under which it was claimed
that the rights of the applicants ac-
crued, negatives the idea that a con-
tract in its legal sense and effect was
to be entered into. 1t provides a GER
tain way in which property in the
public land could be obtained, and
VIII IN obtained in that way it is pro-
tected against intermeddling legisla-
tion as a vested right, just as such
rights are protected that are acquired
under any other law.
Reference is made in the brief
filed to the case of Hamilton VS..
Avery, 20 Tex. 612, where the
rights of one who had located a
valid land certificate and made a sur
vey were considered. 1t was held
that such location gave vested
right. 1T is recognized" says Judge
Roberts. p. 635 "by theSgovernment as
his property and not public domain
by being taxed and sold for taxes the
same as titled lands. 1t conferS the
right to maintain suit upon it, to
try the title and eject trespasSers. It
gives a right which is the subject of
possession of purchase and of lnheri-