The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1898-11-01

/ Fcchhcincr, Fishcl & Go.
| intended not only thut they should make
| sucn contract, but they were to superin-
| tend and control such work because OF tnsfr
1 acquaiignnce with said streams they would
! know what work and whore The same was
| necessary to be done 10 improve said
4 streams In the manner provided for in said
act.
The commissioners. however, having
made contracts practically In the general
| terms OF the statute without designating
or particularizing the work TO be done, the
cOntrlctor must look alone to the art TO
| determine how and where he should work.
4 and II he did work which was not called
| for In SAID act he can not receive compen-
saion therefor, or n he did work but did
not do the same substantially In the man
! ner provided for in said act he should not
receive compensation therefor. II further
| was not intended by said uct To pay the
| contractor except for such part OF said river
as he actually did some work upon oil the
character called for In said act, and II any
! considerable portion CT said streams In one
| body received no such work then the con-
tractor was not entitled 10 certificates
| therefor whether said portions of said
streams needed no work or not.
| The State having appointed commits
| sioners to superlntend and control said
work and an engineer TO inspect end pass
|
cluded by their Judgment In the absence of
fraud where work was actually done, and
| II the only questions In this case wers
whether or not the work done WAS up to
| the requirements OF the contract and the
States agents FOR the purpose OF passing
upon this question determined that It was,
then such act would be binding ulon the
State In the absence Of fraud However,
| neither the engineer nor the commissioners
| had any authority TO approve the con-
| tractors claim for anS part OF said stream
upon which he did no work, nor did the
commissioner OF tie land office have any
rover 10 !ssiie certfflcates for any por-
tion OF said streams upon which
| no work was done by the contractor and all
| such certificates are VOID
Aud all work done on said streams by
the contractor under said act which was not
done in substantial compliance with the
provisions OF said act and whsre the en-
gineer appointed by the governor to in
spect said work, accepted the same with
! knowledge that the law had not been conf
piled with, and made his certificate to the
comptroller either fraudulenty was
guilty of such gross misconduct IN refer
enee therolo as would imply flu1 upon
his part, then such certificates for land
as were issued for this character of work
would be vo.dable in the hands of parties
chargeabie with notics OF such failure TO
comply with said act. and OF suUh fraui.
and the State would not In such case. be
concluded by the act OF her agents.
| |. therefore, conclude:
a. THAT certificates Nos. 447 to 500.
10th Inclusive. issued for the work done
Oh the thirteen and three-quartcrs miles
ON Caney cr.~,k which was not done In
accordance With tie provisions OF said act,
and which certificates were procured TO he
issued by the false certificate of the en-
gineer. Washington. and the false and
fraudulent representations of the agents
| Ia no Artr ntn mir 10 aIoI at,l
the land located by virtue thereof should
be recovered by the Stale from the defend
ants who purchased saG certificates with
notice OF these facts.
(2) That the certificates issued for
work done on twenty-five miles on the San
Bernard river. from its mouth 10 the. Mime
PLACE. where no work was really done by
said contractor OF the character provided
for in said act. were void AMI the commlH-
sioneA> of the general land office had nc
powsr tc issue such certificates and tiles.
certificates TO the number OF 200 out o
tho5e numbered ! to 446 bo.h inclusive
in this suit should be .caneelei and tn,
lands located thereby recovered by Tn
. State.
/ Whether or not the fraud practised by tn,
, contractor or lAs agents In procuring thI
!, issuance VI this series o. certificates Nos
, 10 4iG as portion Of said series sh0ult
. invslsdate the whole, Is serious question
II u not q case merely OF an excessive
grant, but tho iscovery Is based upon fraut
used In The procurement OF The issue OF a.
least a portion OF said series OF certifi-
Gates. However, under tbs findings Of fac
herein, the contractor Was entitled to 22t
certificates for Gao acres each these were
earned and due nGder the law AMI tn
facts; AMI II Is not believsl that frau
!. In the procurement OF an excessive issue o
certificates would inyalidate those just,
earled nor deprive the contractor OF hi
. right to receive the same. II. then, the Ia
! sue OF certificates Nos. | 10 4iG is ohi,
void for the excess, that is for such mum
! ber above these Justly earned. II woulS
: result in 22G OF said certificates bsing valid
2 In addition To this the.ie was nearly fifty
(. ning OF said certificates, or more cxaclI,
81 1896 acres OF laad, located by virtue O
J sad San Bernard certificates. which wa
4 IN New Mexico and never located ON thu
! public lands Of Texas Deductlng TIL!
0 amount. 1906 acres from the 1875 900 acre
? the Statu IL entitled to rscover OF tai
s eerieJ CT certificates. would leave 5000
/. acres which the plaintiff u entitled 10 re
y cover out OF the grant Of 44G Bernard rive
. certificates which havg bean located upol
4 the public domain OF the State OF Texas
1 But. as said series Of certificates h
5 40 were issued at one tins and II 10 i'm
q possible to Distinguish the valid from tn
q invalid, and as the defendants had To-
Q right OF collection 10 the first instance OF tn
lands which 1t would survey for them
; solves out OF the unappropraisd rubIi
= domain. II Is believed the d.fendsnis shouil
IS now be allowed TO select from the 2l7.7t
: acres Of lana located BY virtue Of sal.
: Bernard river certificates Mes. to ~
a 10 .tht sts&e OF Texax. 1S4 40 acres apd u
y State should have tudgment for Tho bal