The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1883-07-05


Veyor to charge the fees and of tn
purchaser to pay them, but the SUI
veyOr is merely entitled to charg
them. The fee is for his own use ant
benefit
In the brief, in alluding to the Wis
consin cases cited in my former opin
ion to you, the following statemen
occurs: "We have been referred Il
two cases decided by the suprem
court of Wisconsin, as authority
against our views. Under the lane
system of Wisconsin applications
are made to purchase. Those
applications were held not tt
confer vested right. We have not
access to these decisions, nor to the
statutes of Wisconsin. We will
venture the assertion that no pay.
ment was required of the applicant
no endorsement by the officer, signed
by him as the agent of the govern
ment, and that the entire landed SyS-
tenn and statutory and judicial clause
OF Wisconsin are entirely different
from ours"
In this there is a mistake IS the fol
lowing extract from Moriner & Gray,
Wis 397, will show: "The relation
|
day of February, A. ID. 1854, the re-
lator presented to the respondent. sec
retary of state, an application in writ
ing signed by him, describing certain
lots of school land, whereby he then
and there applied to purchase the
same, at private sale, and demanded
of the respondent a memorandum to
be signed by him, stating such ap-
| nj ntc
price at which they were sold, the
amount to be paid at the time of
purchase, etc.; which memorandum
the respondent refused to give, or to
endorse his refusal to give the same
thereon. In reply to the position
taken in the case that the state offer
ing the land for sale and providing
for the application, taken in connec-
tion with the application when made
constituted contract, the court uses
the following language: at is con-
tended by the relator that the statute
or the part Of the state and the ap-
plication on the part of the relator
to purchase, constituted a contract
which the legislature could not i'm
pair bv subsequent enactment. This
however is mistaken view of the
law of the case. If the secretary of
state had given him memorandum
on demand he would have been I'M
der no legal obligation to take it to
the treasurer and pay the amounts
specified therein; in other words, to
enter the land.
Had he done so the state would
have had no right of action against
him, and could not have compelled a
specific performance. What might
have been the duty OF the secretary
of state, had not the legislature inter
posed, it is unnecessary now to in
quire, as we have no doubt that it
was competent for the legislature to
pass the acts of 1855, and that no
right vested in the relator which was
impaired thereby. Had an entry of
the land been actually and bona fide
consummated prior to the passage of
this act of the legislat re, the case
might have presented a very different
question. But an application to
purchase is not purchase, nor
is an attempt to acquire right
to be adjudged vested right"
The machinery of the Texas
and Wisconsin statute is SO similar
that am unable to see why the de-
cision of the supreme court of that
state is not authority on the poil t
here. If it be that the statue vio-
lates equities that should be res
pected, with that we have nothing to
do. know 10 policy in opposition
to that prescribed by the laws of the
state, and the policy they prescribe
for disposing of the public land is,
while in the discharge of my official
duties, the policy l intend to observe,
whether think it good or bad. My
attention has been directed to the
7th section of chapter 104 of the laws
of the last legislature, but l cannot
see that it governs in the matter un-
der consideration. have the honor
to be Very Respectfully,
JOHN ID. TEMPLETON,
Atty. Gen1.