The weekly true Democrat. (Tallahassee, Fla.) 1905-1912, 1905-07-07
GRANT TOLL BOARD
NOT "RR.EV0cABLE".
Legislative Authority Over swamp
and OvsTflOwed Lands Upheld.

III recent issue OF this newspaper
we asked the question: els it not true
that no Legislature can "irrevocably"
bind and control the action Of its sue
cessors, and that law made by one
Legislature may be repealed or amend
ed or modified by any Of its success
ors?'
The query was made with reference
to the veto by Governor BrOward of an
act passed by the Legislature of 1905.
to require the Trustees of the Internal
Improvement Fund to pay into the
State treasury all moneys now in their
possession, etc.
The reason given for the veto was
that the Legislature has no power to
control the lands heretofore "irrevoca-
bly," vested in the board or the proceeds
of the same.
From a source quite unexpected an
answer to this query has been made,
and under circumstances which promise
a final and authoritative decision in the
premises at no very distant day, by the
highest legal tribunal in the country.
An important case, involving the
questions which were raised by the last
State administration as to the power of
the Legislature to grant to railroads in
aid of their construction the swamp and
overfOwed land that were granted to
the State by the United States under
the act of Congress of September 70,
1850, has recently been decided by Hon.
Charles Swayne, judge Of the United
States Circuit Court for the Northern
District of Florida. This suit was
brought by Mathilda G. Kittel, as exec
utrix and devisee of Joseph j. Kittel,
against William S. Jennings and others,
Trustees of the Internal Improvement
Fund, to compel the Trustees to make
a deed to her for certain lands which
had been certified by their predecessors
in Office to the Augusta, Tallahassee
and Gulf Railroad Company, the COM
plainaint's claim to the land being based
upon foreclosure proceeding and sale
at which Joseph ]. Kittel was the pur-
chaser.
On the completion of the first ten
miles of said railroad (now the Cara
belle, Tallahassee and Gulf Railroad),
the then Board of Trustees gave to the
A. T. & G. r. r. Co. a certificate for
los, 900 acres of swamp and overlooked
lands which had been selected as such
by the State but which had not then
been patented by the United States to
the State. The company borrowed
money from Kittel and gave him
mortgage on these lands to secure pay
ment. The mortgage debt not having
been paid, the mortgage was foreclosed
in the United States court, the Trustees
of the l. I. Fund being made parties
defendant. They answered, admitting
the giving Of the certificate and alleg-
ing belief that the lands were in fact
swamp and overlooked, and that as
soon as patented to the State they
would make deeds for them to the
railroad company.
The lands were sold under the decree
of foreclosure and purchased by Kittel;
and being subsequently patented to the
State, his executrix and devisee, Ma
thilda G. Kittel, applied to the then
Board of Trustees, W. S. Jennings and
others then members, for a deed, which
was refused. The refusal then resulted
in the suit to compel them to make a
deed. The case came up for argument
on demurrer to the bill and was argued
and the demurrer overruled. The prin-
cipal questions raised by the demurrer
were that the title Of the lands was
not in the State at the time of the grant
by the Legislature to the railroad COM
pany, as the patent had not at that
time been issued TO the State; that the
lands had been vested in the Trustees
irrevocably by the Internal Improve
ment Act of 1855; that under the act of
Congress of 1850 the lands were granted
20 the State for the purpose of drain
age and reclamation; that the Legisla-
ture had no power TO grant them to the
railroad company TO aid in its construc-
ton. and that the giving of the certif-
cate did not bind subsequent trustees.
Judge Swayne filed written opinion,
going into the merits very fully. His
Conclusions, as stated, are that the act
of Congress of 1850 Is q grant in
prssenti of the equitable title to all of
the swamp and overlooked lands in the
state. and when the Secretary Of the
Interior caused patents TO be issued TO
the State therefor the fee simple title
vested as of the date Of the act; that
the State was competent TO deal with
NJ the inchOate or equitable title before
obtaining patents, subject to the rights
y ~ the United States locating and iden-
tifying the lands; that the Internal I'm
movement Act of 1855 does not divert
the lands from the purpose declared in
the act of Congress, nor do subsequent
acts of the Legislature granting lands
"a railroads, IN analogy to the Internal
In,nrovement Act, have such tendency:
mp ar - - A,,-~-, - az.