Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-10-23
The Constitution Involved in an
important Case.
HOW COURTS HAVE HELD ON IT,
The Case Where Governor Coke Appointed
Judge Ferris of Waxahachie Recalled.
The Visit of Mrs. Potter Palmer to Texas
Looked Forward to With Pleasure
by the Ladies-Need of
School Teachers.
The Mandamus Case.
Special TO the Gazette.


AUSTIN, Ten, Oct. 22.-The suit brought
in the district court here by CeCordcva 70
compel the land commissioners 10 issue
patents on two parcels OF land in Euuue's
county, will raise two points-the conS',tu-
tionality of the act Of 1881, which iorhios
the bringing OF manGamus suits AGAINST
the heads of departments or u'uei state
officials ana also the distinction between q
Judicial and ministerial act The ar'o'.
neys for the plaintiff say that the Issuing
of patent is ministerial Jct. which
the law will compel the commissioner
to do. They admit that he could Lnt rv
compelled to issue a land certificate. ~ Hast
involves judicial functions and a certain
amount of discretion thai "a, r9ur5s A~c ual
warran ted in touching upon The, r..i.sa
that excepting By the dr' Of -, Nhist was
hurriedly enacted 10 meet q vvrlsln vs'u' bee.
gency, neither the statutes uJF f4c y.'agtS
of the state have held explicitly tH2 ne
land commissioner 'ra. rr} Us mHro .-
unused To issue patents UH .aGu- Iht'
say that for many years previ""-
to ISL mlndal0Ns S'i'~ tLaiast
state officials were upselG Il she courts
They urge further that statutory sEarl-
ment can not uullIfy That c.Le>e lJ iAy ,tf-
Stitution which clothes the courts with fNe
power TO issue and enforce q. The 'vrLt,. u.
Guiding that of manddmUs mentioned 1"TJiu
and say that If 4 statute Gan proven. SIZE
number of instances. But ia thu case ~
the Capitol syndicate against Hall to C"'u
pei the issuing of patents without requir-
ing the usual fees, 1t Was held
by the supreme court that such
suit was virtually suit against the state,
which under a decision of the supreme court
OF the United States could NOT Oc sued with
out its own consent. The question of fees
which the syndicate or Abner Taylor held
should not be required under the contract.
introduced an element into that case which
does not appear III the case against Mr.. Nc
Gaughey. II is contended that the ques-
ton was not, Shall a mandamus suit
lie to compel The commissioner to
issue the patcntS-for that he
was ready to do voluntarily
but to issue them gratis without the usual
fees!
a mandamus suit was decided adversely
to the plaintiff in 1874 that would seem to
uphold the contention of those who claim
that such suits cannot lie against
state officials. 1t was the case Of
the International and Great Northern vs..
Biedsoe. comptroller at the time, TO COM
pei him to counteTsigu bonds to the amount
of S3OO.000, which the legislature under
the Davis regime had voted rs bonus
10 the road. Judge Moore being
disqualified for some reason to sit III the
case. and the remaining four Judges being
question of UNFOLDING the writ, Governor
Coke appointed Judge Ferris Of WaXa-
hachle. who voted with the two who
held that the suit should be
dismissed This decision gave mandamuS
Il black eye, although Judge Reeves wrote
an able dissenting opinion. 1t IS claimed,
however. that this case against the comp
trollcr was not an analogous case 10
the present one, involving the issuing
Of bonds and not Of patents.
The occasion of the act of 1881 above men
tiOned-w a suit by the Mercer colony
company. or maybe it was the heirs of
Mercer, to recover a lot of land claimed
under the contract made with
Charles F. Mercer by Sam Houston
as president of the Republic Mr..
Walsh, who was commissioner of the gen
eral land Office at the time, apprehended
mandamus suit to compel the issuing of
patents for the land in question.
Moved by his fears he induced
the legislature, then in session,
to pass bill prohibiting expressly the fl
ing of such suits against state officials. The
governor signed it ana it has been "a law ever
since.
=, There is .aea<N~eF'%' q '51Pff1eE snfor~
'lIe - agents, even as TO whether the
1SaS1rt will take Jurisdiction of the ease, or
if it does, whether the higher court will
sustain the writ.