Earl Warren: Number 38, City of El Paso versus Greenberry Simmons. Mr. Mounce.
William J. Mounce: Mr. Chief Justice, may it please the Court. This case involves title to approximately 620 acres of land located in El Paso County, Texas. At the trial court, both sides moved for summary judgment. The City of El Paso's motion was granted and the “at motion” of the appellee Simmons was denied. On appeal, the Fifth Circuit reversed case. The facts in this particular case may be very briefly stated. The appellee Simmons, predecessors in title, purchased these lands involved from the State of Texas in 1910. The predecessors in title failed to pay interest on the original purchase and the lands were forfeited to the State of Texas in 1947 and reverted to the public domain. Simmons acquired title in June of 1952, and in the latter part of July, attempted to reinstate the original purchases. His tendered reinstatement was refused because of the fact that they had not been received by the Land Commissioner within the five years prescribed by the statute within effect.
Potter Stewart: How did Simmons acquire the title in 1952?
William J. Mounce: By quitclaim deed.
Potter Stewart: By quitclaim deed from --
William J. Mounce: From mean grantees of the original purchasers. In the latter part of 1955, these lands were awarded to the City of El Paso. And in 1956, they were actually patented to the City of El Paso. And this suit was filed in the latter part of August in 1961. At the time that these lands were purchased from the State of Texas, there was a statute in effect which I believe is 4218 which regulated the one man that the State of Texas might terminate land purchase contracts. And that statute provides that a land purchase agreement might be reinstated by paying up all back interest providing that no rights of the third parties had intervened. This particular statute was amended in 1941 to provide that in case that lands were forfeited for the nonpayment of interest that the lands may be reinstated by making payment of all back interest due, and provided that that by it's no third party have intervened and added one proviso that this must be accomplished within five years. So the question therefore presented for this Court at this time is whether the application of the statute of 1941 which is Article 5336 impairs the obligation of these original contracts. It is the position of the City of El Paso that the proviso requiring that the reinstatement that the land purchase agreements be reinstated within the five-year period is merely a remedy. In other words, it's one of the methods by which the State of Texas enforces its contracts and it's not necessarily an obligation of the contract. As a matter of fact, in order to determine whether a contract obligation has been impaired, one must first determine what the obligations are in the contract. And in this respect, we're guided by some cases decided for this Court in 1900, which considering con -- land purchase contracts from the State of Texas substantially the same as the contracts not in consideration held that the obligations of the contract were one, that the purchaser would pay down a certain sum of money and make these payments each year until he'd paid it off and whenever he had paid his money, although required by the contract, then the State of Texas would issue patent that this purely and simply with obligations of the contract. That the method by which the State of Texas enforced the particular obligations and terminated the contract rights referred merely to the remedy and consequently could be modified from time to time as long as the changes were reasonable. And we submit that this is precisely what we have here. The State has merely modified the manner in which it terminates the land purchase contracts. And it's not necessarily impaired obligation for the contract. We feel that this case is probably squarely or almost squarely in point with that of Aikins versus Kingsbury which is decided by this Court in the 1920s. That involved a California Land Purchase Agreement. At the time the lands were originally purchased the only method by which the State of California can terminate the purchase contract, would be to actually file a quiet title action, obtain a judgment. Then the purchaser had 20 days after the judgment was entered within which to come in and redeem his purchase or by paying all back sums due plus all court costs. Now, this particular Act was amended some 20 years after the original purchaser bought his land to provide that if the contracts were in default that the purchaser would have six months from the date of the Act within which to reinstate his purchase, otherwise, he completely loss everything. And that particular original purchaser or his successor contended that this was an impairment of obligations of his contract and this Court held that it was not an obligation. That is merely a change of remedy or merely a change in the method by which the State terminated its contract which it could do from time to time so long as the modification was reasonable.
Speaker: What if this -- what did the Court deal do here were very stiff?
William J. Mounce: And, what do you mean sir?
Tom C. Clark: And then send it back to the District Court?
William J. Mounce: Yes it remanded it, yes sir.
Speaker: Is that the final judgment here?
William J. Mounce: Well, it's quite similar, as a practical matter I think would probably do --
Speaker: The practical matter, as a legal matter.
William J. Mounce: As a legal matter, I -- it's very questionable. I cited the Railroad case in there. That was a problem where of course we were confronted where we made the appeal. It's difficult to determine whether it was final or not, really isn't.
Speaker: What did they remand on?
William J. Mounce: For determination --
Speaker: Our greatest possession is the logic.
William J. Mounce: Yes. But the fact, and I'll be real candid at this point, the facts regarding adverse position are quite skimpy. And that is charitable as I can be about those particular facts. So as a practical matter, our big defense was this 1941 statute which we believe is constitutional. And the question is as to the constitutionality of this particular statute unless they appeal.
Earl Warren: Mr. Mounce, under your theory, how long could you find have continued to fail to pay the interest and still have enjoyed the use of the property.
William J. Mounce: Well, I represent the City of El Paso and --
Earl Warren: Oh yes -- yes I --
William J. Mounce: Well, under the theory that's enunciated by the Fifth Circuit --
Earl Warren: That's what I meant --
William J. Mounce: It appears that he could continue to do that until some third party's rights had intervened. In other words, their theory is that before the State of Texas could terminate this contract even though it's in default admittedly that they must create rights in another. And as we stated this common knowledge, the State of Texas doesn't sell its land anymore. It did back in 1910 but all they sell them in very rare instances but under the theory enunciated by the Fifth Circuit before these rights would be terminated, the State would have to create rights in another. And now the decisions of the Texas court which followed out, these rights would have to write them into a patent. And we submit that --
Earl Warren: In other words, so long as remained in the -- in the ownership of the State, they could continue to fail to pay --
William J. Mounce: Perpetually, they could continue to fail to pay the interest, so long as the title remains in the state. I might briefly call the Court's attention. I have to apologize first for the scrappiness of the record. We both move for summary judgments consequently the case wouldn't as fully developed as we might have liked in the trial court. But the particular statute involved was submitted in 1941. It's Chapter 191 of the Acts of 1941 of the Texas legislature. That particular statute is in two parts. The first part provided that the State or that the State provided that any purchaser of these lands could defer payments of the principal for the next four years. The second part of the statute of -- added the five-year proviso. And as Mr. Simmons has pointed out in his brief, the State of Texas on many, many occasions have amended or modified this -- these Land Acts. The most common type of modification is that each two years, the State provides that the principal payments may be deferred that the purchasers need only pay interest. Now, the record shows, I believe, that Mr. Simmons predecessors entitled avail themselves of the first section of this particular Act and now are complaining of the second section. We think it's questionable whether they actually even have a right to complain since they avail themselves of the benefits conferred by the first section of this particular Act and now they complain about the five-year proviso in the second provision of the Act. One other matter, I would like to bring up this time. I think the provi -- and that is the Appendix K that's been submitted by the appellee wherein he made several requests for admissions while this case was pending on appeal in the United States Supreme Court. And as he shows in there, we filed objections to these requests for admissions but nevertheless they are brought here in the record. I feel that they have absolutely no bearing on this particular case at this particular time. I would further point out that in conferences between myself and Mr. Simmons' local counsel, the Court so stated they all might as would be held in advance. We practice a little bit more informally out in El Paso when we don't file orders of everything but I do believe that the -- the so-called facts and conclusions set forth in Appendix K to the appellee's brief and absolutely no bearing on this particular question. I would like, if I might, to reserve the bulk of my time for rebuttal. However, I do call again reiterate that this position of the appellant that this particular statute merely modified the remedy by which the State of Texas terminated its land purchase contractual rights and did not impair obligations of the contract between the State of Texas and Mr. Simmons' predecessors in title. I will concede, however, there -- there is some dicta in some earlier Texas cases that might support the proposition that the right of reinstatement was invested right. However, I submit a careful reading of those cases will reveal that they are merely dicta. The statement was more or less gratuitous and was not necessary to the decision of the case pending.
Earl Warren: Mr. Simmons.
Greenberry Simmons: Mr. Chief Justice, may it please the Court. We've referred a great deal recently about the constitutional rights of the American Indians, and we have also heard a great deal about the constitutional rights of the American Negroes. But very seldom that in this Court do we have the opportunity to direct our attention to the constitutional rights of the American settlers that helped settled up this western boundaries with reference to their homes and their home sites. This is such a suit. We have gone into focus here the impairment of the obligation of contract Article I, Section 10 of the Constitution of which the members of this Court know long before well provides that no state shall pass any Act impairing the obligation of contract. Now, since that was put in, in this Constitution of ours, it has lost a great deal of its potentiality. However, in regards to land grants by the State and contracts pertaining to land grants by the State and the Government, it still carries a quite of great deal of potentiality. Now, before we can determine whether this contract has been impaired, we of course have to determine what the obligations of both parties were at the time the contract was made back in 1910, not and under the laws at that time, not under the laws as they might be today after being amended so many times. Now, on page 67 of the record -- 67 of the record, we have the contract which is before the Court today. That contract was made by settlers Glenn and Kilpatrick in 1910, when it applied to the State of Texas for the purchase of their homes and their home sites. Found down here about a third of the page from the bottom, we have the word which is hidden here O-B-L-I-G-A-T-I-O-N and of course the obligation of this contract is from there on down with reference to the statutes they refer to. Now, what does the obligation of this contract specifically express and stipulate as to the terms of the obligation itself. That's what we're -- we're trying to find out here, the obligation itself. I have this day prchased from the State of Texas under the provisions of and in accordance with, and let me emphasize that, under the provisions of and in accordance with Chapter 129 of the Acts of May 19, 1897, now there it is in the obligation of the contract. Now, what does Chapter 129 say pertaining to the particular thing which is before this Court today namely the reinstatement of property which was already forfeited. At page 8 of the brief for the appellee, page 8. There is set out two paragraphs there which take -- which is part of Chapter 129 which set out the obligations of both parties, the settlers and their vendees, and the State of Texas. Now, what does it say? In the second paragraph here it says, this land is to be sold to settlers, actual settlers only. And after they have spent three years on their lands, they may have a patent at anytime. Now, that's fairly clear. I'm speaking now of the obligation of this contract, not just the contract itself, the obligation of this contract stipulated and expressed. What else does it say pertaining to this subject that we want to talk about? It says, if any of these lands are forfeited for the nonpayment of interest, they may be reinstated by the purchaser or the vendee by paying all back interest into the treasury and by giving written notice before the rights of third parties may have intervened. That means before this date sold that land to a third party. Now, what we have just discussed here are the obligations of the State to do certain things. What? If these settlers pay their back interest before they resell it to some third person, then what? This contract comes back into being just the same as it was when it's written.
Earl Warren: Does that mean that if you -- if you continued to fail to pay the interest and the State never divested itself in favor of another party --
Greenberry Simmons: Well, that is so --
Earl Warren: -- that you could continue that in that at the end of the --
Greenberry Simmons: Mr. Chief Justice, you mean when you're taking generally or in this particular case?
Earl Warren: Well, I'm talking about what would happen in this particular case.
Greenberry Simmons: In this particular case sir, it was tendered. It was tendered. All back interest was tendered and I'm coming of course with all back interest was tendered, that's the whole point in the case. All back interest was tendered and request was made to reinstate before the State sold to the city three years and a half before the city.
Earl Warren: Well, but I -- I'm wondering what would happen if the -- if the State did not sell to the city. Could you --
Greenberry Simmons: If the State did not sell it to the city.
Earl Warren: Could you indefinitely have --
Greenberry Simmons: Well --
Earl Warren: -- failed to pay the interest and still maintain your property?
Greenberry Simmons: Well -- oh, you mean after it had been forfeited back to the state? Now, after it had been forfeited back to the State for nonpayment of interest --
Earl Warren: Right.
Greenberry Simmons: Yes, yes, and if -- that's right. And it would be indefinite until they sold that land before and -- and the reason is very good about that. It was customary down there for these settlers when they moved on this land to pay for years and then all at once, and I'm coming to that in a few minutes, all at once not able to pay their interest. They didn't get off the land then. It was only when they resold that land because you have got a statute here which they contracted in the obligation to do the terms of the contract. And it -- and as long as they held that land, they could -- while they have lived on this land for 40 or 50 years as a whole -- and for a long period of time. Then the successors, the vendees went in the same position. Yes sir, that's exactly what the Court of Appeals held that they had that right. That's exactly what they held that they -- this was not a remedy but it was an obligation of the State right here. Now, if it had been customary -- well, of course customary, we're not interested in customary. Too much in regards to this matter. But anyway they did not have to -- they generally did not move on if they didn't pay. It was only after they resold, they lived there with the expectation for years. Now --
Arthur J. Goldberg: You are arguing in the contrary (Inaudible) the settler and vendee.
Greenberry Simmons: A vendee under this statute has identically the same -- yes sir, yes Your Honor. Well -- no we're arguing, yes we're arguing for this vendee and the settler come -- the settler and the vendee have identical. They have identical rights given to him by the -- by this contract it says here purchaser or vendee.
Arthur J. Goldberg: (Inaudible)
Greenberry Simmons: That's right and it's done -- been done and the books are full of it. This is not any novel thing. This is -- even in the Court of Appeals sets that out in its opinion.
Arthur J. Goldberg: (Inaudible)
Greenberry Simmons: Well, if it was questioned, lots of times it didn't question. They go on and sell it. I mean, when they get ready -- no under -- when this statute was passed, they had due settled. They -- they -- for years, the statutes provided that they -- they will sell the land on the next sale or something like that. And they -- they -- it was accustomed to -- and the -- in the statute. The statute now I'm talking about the -- the obligations here of the State, not just the -- the statute itself. I mean --
Arthur J. Goldberg: (Inaudible)
Greenberry Simmons: Well, Mr. Justice Gold -- yes Mr. Justice Goldberg, it's covered right here in the statute which is the terms of the contr -- obligation of the contract itself. It's in the terms of the obligation. It's covered there. It says that exactly, what does it say? It says a purchaser or their vendees may have their claims reinstated on written request by paying to the treasure for the full amount of interest due upon such claim up to the date of reinstatement provided no rights of third parties may have intervened. Now, that is not just our dream. That is not just the statute. That is the obligation of these terms of this contract and that's just what the Court of Appeals held in this case. That's exactly --
Tom C. Clark: That have been changed though, was it?
Greenberry Simmons: The statute -- yes, statute has been changed -- yes, yes Your Honor -- Mr. Justice Clark.
Tom C. Clark: The State forfeited the land for nonpayment in 1947, is that right?
Greenberry Simmons: Yes.
Tom C. Clark: Then you can earn your money under the Act in 1953.
Greenberry Simmons: 1952, yes, Your Honor.
Tom C. Clark: And that was two days later or something like that, wasn't it?
Greenberry Simmons: Well it was --
Tom C. Clark: -- according to the --
Greenberry Simmons: I mean according to the -- evidently according to something it was yes -- yes, I --
Tom C. Clark: He was qualified in 1941 with that statute.
Greenberry Simmons: I know that, but that statute was passed if you're speaking of, it was passed, it was passed some 30 years after this contract was made.
Tom C. Clark: I understand that. You claim that that statute is a nullity because it impairs what you claim to be a contract under your original settlement. And the statute was that -- that was then in effect but did not have the five-year limitation. That's your position, isn't it?
Greenberry Simmons: Well, here it is and the obligation of the contract right here. I mean in regards to --
Tom C. Clark: Well, I understand that.
Greenberry Simmons: And then in 1941 and 1951, yes, those acts were -- they were amended but they have been amended several times since then. If we -- we came, that's right. That's been amended several times since then. But how can you change the terms of your obligation, the terms of your obligation by any statute, regardless of what its remedy or substance, you cannot do that under the courts, I mean under this Court's rulings.
Tom C. Clark: Those statements say that they had the right to amend the statute with reference to forfeiture for nonpayment. And that that's all it did. They -- you would not pay for many years, the statute was amended in 1941, and you forfeit your land in 1947, and stated more, so State claims I suppose that after 1947 that they'd own these properties.
Greenberry Simmons: The State didn't own the prop -- any property subject to the obligation of this statute. The State did that -- when -- when it was forfeited, it went back to the school fund. And if the State at that time had sold to the city before we pay that interest where they would have the title, but they didn't do it.
Tom C. Clark: They didn't sell it until '55.
Greenberry Simmons: They -- they didn't tell it -- sell it until the settler himself had paid everything he owed. I mean it tendered it, tendered everything he owed. He was living white when these people bought this land. This contract was just in good condition as it ever was when it was made that the date that that -- I think I'm so -- right, soon as this money was tendered right here it says, “If you do that, then that is the obligation of -- it's not just the contract, it's --“
Arthur J. Goldberg: Suppose the central opinion might have been a subsequent statute limitation exercise of your right to redemption?
Greenberry Simmons: I beg your pardon, Your Honor.
Arthur J. Goldberg: I suppose the substance in what Texas has done here is to, by enacting the statute, is the subsequent statute is to impose that the statutory limitations on the --
Greenberry Simmons: They imposed a -- a statute limitation, nothing but a remedy, nothing but a remedy in the world that -- that five-year limitation, but you can't even impose a remedy, if you have contracted in the terms of the obligation.
Arthur J. Goldberg: What you have in other words suppose the State would believe that in fact promulgated the contract to somebody else, and you say when they intervened with the statute set you also may not have your land back in which they amended in certain time, they couldn't do that. That's what you're saying.
Greenberry Simmons: Yes we're saying that that impaired after this contract was made and while this was customary down in Texas, there's -- there's this any unusual thing that they'll try to pull of it. Texas jurisprudence has followed these and -- and -- did I answer that?
William J. Brennan, Jr.: I think you did. As I understand your position Mr. Simmons. They could do nothing to defeat you right to get the land back after forfeiture except to sell to a third party at the time you intended they haven't yet sold it to the third party.
Greenberry Simmons: Well if you -- they -- yes, that's right.
William J. Brennan, Jr.: Is that what you're saying?
Greenberry Simmons: That's how it is -- that's exactly what we are saying. We are saying that if the terms of the obligation itself --
William J. Brennan, Jr.: And what the State is saying is “No, we may also interpose in the fact that time period within which after the new statute, you have to commend in and if you didn't, we keep it.” And you did commend --
Greenberry Simmons: Yes but we're saying --
William J. Brennan, Jr.: -- that was two days after the time it went out and you say we keep it.
Greenberry Simmons: That's right and we say you can't put that on because not because it -- I mean because that you have contracted back there and these people have lived on this land. They built their homes on this land, taken money out of their pockets and built their homes on this land which the State had nothing to do with, paid interest on this contract for 37 years before this. And then was unable to pay the -- the interest. And what -- and then it merely reverted to the State with the right to them to sell it anytime they didn't -- that the settler didn't come in, but the settlers and the vendees came in. They came in three years and a half before their city. And they paid up.
William J. Brennan, Jr.: How long have they been in default actually at the time they came back and tendered the arrears?
Greenberry Simmons: Well your -- Your Honor please, they had five -- I think maybe five years and maybe one or two days there's a discussion there about when they received it, and what day it was, and that's I think --
William J. Brennan, Jr.: Is that all these cases involved here, there were just a couple of days over five years in arrears?
Greenberry Simmons: Well these two cases are the same. I mean yes. This is the same and this is yes -- these are identically the same, the contracts is the same. And that's right, the settlers. And that's --
Earl Warren: What do you do with the case of Aikins versus Kingsbury in 247 U.S.(Voice Overlap) on the theory of cases the counsel drew along that line?
Greenberry Simmons: Well excuse me Mr. -- excuse me Mr. Chief Justice.
Earl Warren: I say how do you handle the Aikins versus Kingsbury in 247 U.S. and the other cases that counsel cites along the line?
Greenberry Simmons: Well, the Court of Appeals, of course, they cited that case and that's the first time that this -- this city had ever presented that case. When the Court of Appeals cited it in their opinion and still ruled against them, but of course here is the -- here is the -- yes, the difference. The terms of this contract here are different than the redemption statute that was in the California statute. The California statute did not provide so far as we can see in the case and here it is, we can't find where the statute in the California case provided the same things in the obligation of the contract itself; namely, to reinstate if they paid up before this result. They didn't have that in the obligation stipulated in the obligation, in the Aikins case. I mean we can't find if it's in there. It merely says that in 20 days, it's an ordinary redemption case. This is not an ordinary redemption case. This is not an ordinary, just an ordinary. You pay interest and we give you patent. You can see that this is a -- this is an altogether different situation. Why? And you can see it by what they have -- the State has agreed to do in this case. If you come on this land with eight inches of rain on it, and -- and live on it, and build your home on it a year, average mean eight inches, we will do this for you. And now they're trenching on it after the men live on it, and build their homes, and did this. The State has time to flitch and say, “No, that was not the contract. We have entered just a remedy.” It was more than a remedy and the Court of Appeals so held it was more than a remedy.
Earl Warren: But isn't that what happened in Aikins?
Greenberry Simmons: Well yes. Now it didn't. That is right. It's right except everything, Your Honor please, if you -- they didn't say this in the Aikins case right here. “That you may have your property back if you pay interest before we resell it,” if you can find that in the Aikins case, I haven't been able to find it. And that is the expressed and stipulated terms of the obligation itself. That's not just a contract.
Earl Warren: Well, they purchased it at the -- in the lights of the statute in California, didn't they, in Aikins?
Greenberry Simmons: I beg your pardon.
Earl Warren: They purchased to them the light of the statute in Aikins, did they not? Well, that was written --
Greenberry Simmons: I think they probably invest (Voice Overlap). I think there are parts here. But here's the news --
Earl Warren: This is the language that I wanted -- what you -- what you -- how would you handle it. The counsel quotes this language from that case. “The right of the State to foreclose such a contract for default in payment and the right of the purchaser to redeem after a default decree relate to the remedy as distinguished from the obligation of the contract and both of these rights are constitutionally subject to modification by the State within limits which were not exceeded in the Act before us.” Now that's the language that that --
Greenberry Simmons: That's the language and -- and the obligation of this contract is that whether this is a remedy or whether this is substance, or even procedure. They contracted their right away in the obligation of this contract. Now we had -- this the -- we have several cases of course, when we come to them. I mean this Court has held. The principle that I -- we are going on Your Honors please is as old as Mr. Chief Justice John Marshall's court in 1823. It's Green against Biddle. And it said if the terms of the contract itself now if -- and it's cited on page, the last page, 54 in this Appendix D. If the terms of the obligation or the terms of the contract itself says certain things even though their remedies, it makes no difference whether it's a remedy or whether it's substance. If the terms of the obligation say so, then any -- and what does the Constitution say? It says on page two right here, is -- is of course I know that -- that Your Honors are all familiar with it but we have -- might reflect a recollection. "No State shall pass any -- shall pass any law impairing the obligation of contract.” Now, we are trying -- we found out what the obligation is here. Now, if it is in where -- here is -- here has been in the trouble. The problem that we most have had in the past with these cases in all these hu -- history of this -- this Court, is searching out what the obligation of the contracts are. Now, if the oblig -- if we can't find that in the obligation itself, then what you say of course -- what we are saying, then they can amend, and then they can deal with remedies. But if we have stipulated and if we do find in the obligation itself like we find this language here what to do, then that is different that then even if you -- if you have stipulated, you're about it, it can't then be impaired in anyway. That's what it said, that if the obligation covers it, that it's covered in the obligation, you can't -- we can't pass any law that shall impair it. But now just the -- we have to tell a little of what these sellers did I think on this land before. I mean they -- they went on the land and they built a house, and they spent three years, and they got a certificate of three-year residence all of these is in the -- in the record of this case. And everything is certified copies.
Speaker: What's the nature of the land today?
Greenberry Simmons: Well, the nature of the land today, its -- its suburban -- expensive suburban land but the water has been discovered on it and it's a valuable land. It's valuable, a big highway has been put to it and it's a valuable land. It's got life in the settlers went on it.
Speaker: Suburban El Paso?
Greenberry Simmons: Yes, suburban El Paso just somewhat that outside the city limits with straight -- big highway going straight to it and has water under it, you shall love it, has -- and it's -- it's not likened was when the settlers started down on this land. All --
Tom C. Clark: It's a public park?
Greenberry Simmons: I beg your pardon Your Honor.
Tom C. Clark: It's a public park or what is it?
Greenberry Simmons: No it isn't a public park, Your Honor. It's just land.
Tom C. Clark: But it belongs to El Paso.
Greenberry Simmons: I beg your pardon.
Tom C. Clark: It belongs to El Paso?
Greenberry Simmons: No, the -- the titles according to the record belongs to Simmons.
Tom C. Clark: I mean El Paso claims it.
Greenberry Simmons: I -- and El Paso got a patent three years and a half after we recorded our titles to it. Three years and a half, there's subsequent persons that's constructed notice in addition to this, and first in right and -- oh excuse me, Your Honor.
Tom C. Clark: Where they use it for?
Greenberry Simmons: Well, it isn't being used -- that isn't being used, it's not even in the setting. It's on the edge of the city. The city bought all -- it's not even in the -- in the city. It's on the edge.
Tom C. Clark: And there are papers that the city has bought from the State a large crack of which this were part, I thought perhaps it might be a part.
Greenberry Simmons: No, Your Honor. The city is in regards to this is in the land business. That's just what it is. That's just what this massive selling of some of these lands and they -- they -- and they haven't drilled on a bit of this land for water. So far as our information is concerned, certainly I'm not -- none of this, none of these two sections directed to show. Well --
Tom C. Clark: They haven't been subdivided, have they?
Greenberry Simmons: No, it hasn't been subdivided but there are some subdivisions in the area and --
Tom C. Clark: This land is exactly to go?
Greenberry Simmons: Yes.
Tom C. Clark: Nothing of is standing here.
Greenberry Simmons: Yes. That's right. I mean that's what it amounts to. I mean of course, the -- the home sites had, you know, the home site that the sellers put on there, there'll be homes in there when they went on there -- and dug wells and have been prove to popped in that sort of thing and lived for a while and then hard times came like the depression came here and -- and so they moved off. And that's the way that -- that's what I was going to tell you about when we started out that -- that's the way it goes along until they -- they loose it and then I mean it goes back to the State. This is no news case. I mean the -- the Gulf Reduction case is the leading case in Texas on this that -- that the state law has taken million dollars on 160 acres in that case. This is -- and that is the leading case there. Gulf Reduction recites that case. I think the difficulty that --
Earl Warren: You may finish such statement you are going to make, Mr. Simmons.
Greenberry Simmons: Well, of course, the Court of Appeals though affirm this, I mean said what we said a while ago. I was going to say that you almost have to understand the setting of this thing of how those settlers went on right here and demand and why Texas was willing to do this when they started out. They couldn't get back at the turn of the century when this -- this statute is passed in 1897. They couldn't get any money to stay on that land and that's really the trouble. So that's where we made the statute. That's when they obligated themselves like this. And these people went on and stayed there. And of course, there's no doubt about the -- the New Jersey case of Wilson if -- if we have the same identical rights that the -- that the -- the settler had. And we submit that the Court, the law should be affirmed the decision.
Earl Warren: Very well. Mr. Mounce.
William J. Mounce: Mr. Chief Justice, may it please the Court. I will try to address myself, answer some of the questions propounded by members of the Court. First question is how long that the contracts have been in default? I believe the record shows that they became in default in November of 1950 -- 1946. Also the method of distinguishing Aikins --
Earl Warren: Would you trace through the actions of the State from -- from the time that they first defaulted on the interest, what was done?
William J. Mounce: Yes sir, the first default on the interest, the State mailed a letter to the last known address of these particular purchasers, advice them of the fact that they had not paid the interest on November 1, 1956 whenever it was --
Earl Warren: It's not 1956 --
William J. Mounce: I'm sorry, it's 1946, 1946 whenever it was due and advice them that if the payments were made -- not made by the 21st of July 1947, that the lands would be forfeited. Shortly thereafter, after the particular date cited, the July 21, 1947 date, the Land Commissioner again notified these people at their last known address advised them that the State had forfeited the lands in accordance with the established procedure whereby all they do is mark on the file record that the land is forfeited from nonpayment of interest. And at that time, submitted them a summary of this particular statute which is now under consideration, explaining how they would have to reinstate the purchasers. I believe -- does that answer your question, Your Honor?
Earl Warren: Well then, what -- what was the next action the State took?
William J. Mounce: The next action that the State took after the forfeiture was in -- again in July of 1952. Mr. Simmons filed an application for reinstatement which incidentally was filed pursuant to this new Act of -- and the State returned his applications, and his checks, and told him that the application came too late. And that's the last action that the State took as far as I am aware until the lands were sold to the City of El Paso.
Earl Warren: Now, when did -- when did Mr. Simmons buy -- become the federal owner of the property?
William J. Mounce: In June of 1952.
Earl Warren: In 1952, just before --
William J. Mounce: Yes, after six weeks before the five years had gone up.
Earl Warren: And when -- when was the author made to repay the interest?
Earl Warren: Apparently two days after the five-year period.
Earl Warren: Before the -- in election of the State?
William J. Mounce: Well two days af - after the five years had elapsed. The question is not completely clear in the record but I think it's -- we can say that it was at least two days thereafter.
Earl Warren: And then when was this action filed?
William J. Mounce: This occurred in 1952, the action was in July 1952. The action was filed in August of 1961, so nine years later.
Earl Warren: Who was in possession with property in the meantime?
William J. Mounce: Well, there really wasn't much possession taken and I'd be quite frank with you. We alleged the defense of adverse possession state -- I mean the City of El Paso was holding record title. There were some acts of possession as questionable whether they're sufficient to sustain a defense of adverse possession because the particular nature of this land is raw and it's undeveloped. Its location really is what gives you its primary value. Now, does that answer your question?
Earl Warren: Yes, it does.
William J. Mounce: Thank you. I'd like to pass on to the method by which the appellee attempted to distinguish agents. It states that these matters were inclusive in the contract. I don't know the contract was not set forth in any of the particular cases either the Supreme Court case in the State of California decision. However, I think that's completely immaterial because regardless of whether they're set forth verbatim in the contract itself, people contract with regard to existent law. I think that's home book proposition law that needs no particular citation. And it is our position their own principle, the Aikins decision cannot be distinguished from our situation as a matter of principle.
Hugo L. Black: Were the obligations the same in Aikins?
William J. Mounce: Well as far as the -- as far as I can tell from any decision, I haven't seen the particular contract involved in Aikins but the decision says that the only obligations were, one, that the purchaser would pay the purchase price and two, upon payment in full that the State would issue a patent for the land. Now, I assume they are the same because Aikins caught in a favor of the two Supreme Court cases which decided a Texas purchase contract which says essentially the same thing that those with the obligations contained in a Texas Land Purchase Agreement that one, the purchaser pays the money, and two, whenever he did that, that the State would issue a patent.
Hugo L. Black: What about the interest?
William J. Mounce: And the interest, yes. Whenever I say money, I mean all sum to do under the agreement.
Hugo L. Black: Was it -- do you view the new law as not changing the obligation of that contract?
William J. Mounce: Yes, I do Your Honor. I do not believe it changes the obligation because --
Hugo L. Black: Why? If you haven't passed -- if you hadn't passed that law, was the State not an obligation to let him have the land?
William J. Mounce: I believe it is under an obligation at that time.
Hugo L. Black: But didn't they like to do it?
William J. Mounce: I don't believe that that was the contract.
Hugo L. Black: Why?
William J. Mounce: I mean -- sir?
Hugo L. Black: Why? Why wasn't it the contract?
William J. Mounce: Well, they had a contract whereby he would pay for the land and want to repay for the land and statement sell it but I don't think the method by which the State terminated this contractual relationship with him was necessarily a part of the contract.
Hugo L. Black: But why was it necessary to change the law if the contract wouldn't change it?
William J. Mounce: Well, to change the procedure, why by which --
Hugo L. Black: To resolve the procedure but what did it resolve in so far as he was concerned?
William J. Mounce: Well, as far as he was concerned, it terminated his contractual rights at the end of the five-year period.
Hugo L. Black: Terminated the contractual rights which he would have had but part of the passing to the law?
William J. Mounce: If the law had not been in effect, and under these circumstances, I believe that he would have still had a right to purchase the land. Now --
Hugo L. Black: Under the contract?
William J. Mounce: Under the --
Hugo L. Black: He might not accept the contract.
William J. Mounce: Under of the contract and the policy then in effect by the State of Texas.
Hugo L. Black: I'm not talking about the policy. I'm talking about the state contract.
William J. Mounce: Well, I don't think this was necessarily a contractual provision and --
Hugo L. Black: But what is it if not a contractual provision?
William J. Mounce: I think there's more policy and a remedial provision remedy by which the State terminated this con -- terminated or did not terminate the --
Hugo L. Black: Obligation?
William J. Mounce: -- contract.
Hugo L. Black: Well what if -- what if round up with, whatever you call it, what if he had a contract which was absolutely good. And he could have waited until the time he did wait to pay the interest. The State comes along with the law which takes away the right from him to pay the interest which he could have paid under the contract and done with his property, didn't he?
William J. Mounce: Well except the -- well at one premise that I think you're wrong, all the contracts are absolutely good. He was in default, something you have to keep in --
Hugo L. Black: Oh, he was in default, didn't it provide what you have if he's in default?
William J. Mounce: Yes it did provide.
Hugo L. Black: What did it provide?
William J. Mounce: It provided that at that time, if he paid up the reinstated his purchase in accordance with the statutes and no intervening rights of third parties --
Hugo L. Black: And the State didn't have any right after that time to bar him from telling him to pay after the time of the statute, did it?
William J. Mounce: No, there's no procedure or any right for by the statement to do that.
Hugo L. Black: I don't see how you say it. The State didn't contract, that they didn't abided on the term that is actually made in the contract.
William J. Mounce: Well, I'm saying that just like Aikins said that -- that's the same situation we had in the Aikins case.
Hugo L. Black: Was it?
William J. Mounce: I believe it was.
Hugo L. Black: Have you read the second facet of that Aikins case about the obligation?
William J. Mounce: Well, they don't -- well on the obligation of the contract but they do say this that at the title of the contract, the way the State would terminate these contractual rights was this. It would file a lawyer's -- essentially a quiet title action. And after the -- if the State got a judgment, then the purchaser would have 20 days after entry of that particular judgment within which to come in and pay up all back moneys plus court cost. And then he would get his land back. Now, that's -- I can see no real material distinction between what we have here. The State of California lend them a minute, their action said they didn't have to file a quiet title action at all. If the guy had -- the purchaser had been in default for a certain length of the time five -- which incidentally was five years, if he didn't come in within 60 days from the date to processes this Act and pay -- and reinstate his purchase, he lost all claim to the land. And that's essentially what we have here.
Speaker: From your chronology of the events which you had with the Chief Justice, am I right, I think that Mr. Simmons bought after the passage to the new statute.
William J. Mounce: Yes sir, he did. I again call your attention to the fact that Mr. Sim --
Hugo L. Black: Do you rely on that as changing the State's obligation under the contract?
William J. Mounce: Not necessarily, Your Honor.
Hugo L. Black: But do you allow it at all?
William J. Mounce: No sir. But we have one other factor here. As I mentioned, before this particular statute has been -- these Land Acts have been amended numerous times. This -- and again, I call your attention with the fact that this particular amendment provided that in -- the principle payments need not be paid. I don't think you find them set out, quoted verbatim in the brief of the record, Your Honor. But that the record does show that Mr. Simmons as predecessors of title avail themselves of this particular section of the statute and nearly made an interest payment rather than paying their principal as the so-called -- as the contract -- contract provided. They avail themselves the benefit of the particular statute and now they refuse to buy it by the burdens of the statute.
Hugo L. Black: Well, he claims that the State refuse to buy it by its burden by using its power and the state legislature of where it was -- I mean the city is using its power to pass the law, which relieves it from this obligation.
William J. Mounce: Well I don't think -- I know that's exactly what he claimed, Your Honor --
Hugo L. Black: The contract would do it --
William J. Mounce: -- bid by disagreement.
Hugo L. Black: (Voice Overlap) done it in big bold type.
William J. Mounce: Yes and --
Hugo L. Black: Was that a one-sided obligation or was it an obligation on both parties?
William J. Mounce: I think it's an obligation on both parties. I think it's an obligation on part of the purchaser to pay the money and an obligation of the State to issue a patent after the money has been paid.
Hugo L. Black: In accordance to the terms that he had agreed to pay?
William J. Mounce: Yes, I think you might say that even the times he had agreed to pay --
Hugo L. Black: And he did pay it under this term he had agreed to pay it so far as the contract was concerned, leaving out the error of the -- the new law.
William J. Mounce: Well, I -- I'm not sure that I agree with you, with that statement.
Hugo L. Black: Well, why not? If not, that's the -- that's an issue. Of course if he didn't -- didn't he pay it within the -- within the obligation he had assumed within the time to pick those obligations if the new Act had not been touched?
William J. Mounce: Well, we get back to the point again whether this was part of the obligation of that particular contract.I say and I submit that it was not necessarily a part of the obligation of the contract because of --
Hugo L. Black: Wouldn't everything the State agreed to do in connection with this contract and the obligation was imposed on him, fixed by the contract?
William J. Mounce: The obligation impo -- it was fixed by the contract. I think it was as far as obligation is concerned. I -- I again submit that this --
Hugo L. Black: Well, you can't distinguish, can you, between the obligation that he didn't pay up within a certain time and get it profited in any other obligation that the State assumes?
William J. Mounce: I'm sorry.
Hugo L. Black: Can you distinguish between that part of the contract that gives him a certain length of time to make all the full payments and any other obligations that the State assumes?
William J. Mounce: Well, if you're going to call that an obligation I can't distinguish from it. But I still submit --
Hugo L. Black: Well that's part of the agreement, what the State agreed to do.
William J. Mounce: Well --
Hugo L. Black: Let's forget the word obligation. What they agreed to do.
William J. Mounce: Well, they agreed to give him a patent if he paid his money. That's what --
Hugo L. Black: Under certain terms and conditions set out in the contract?
William J. Mounce: Well, these particular terms and conditions weren't set out in the contract. They were in the part of the body of the law at the time. So --
Hugo L. Black: That makes him a part of the contract.
William J. Mounce: I think -- I think so.
Hugo L. Black: All the decisions under the impairment of Contract Clause?
William J. Mounce: Yes sir. But I still think the question is whether this five-year limitation feature is part of the remedy by which the State terminates these agreements are part of the actual contractual obligation itself. And again, I say that they cannot be distinguished logically so between the Wilson versus Flack in the Standefer case set forth in our brief and the Aikins versus Kingsbury.
Byron R. White: So you would argue then that if the original contract had expressly said that you may reinstate within the period of 10 years after forfeiture is declared, if that's what the law was when the contract was made and then the State changed the law after later which says that you may reinstate within five years, you would say that's forfeited?
William J. Mounce: Well I -- I don't know that this is -- I don't know that I'd say this is alright or not because it won't (Voice Overlap) change in the remedies where the remedy itself has reaped the -- what is left is reasonable.
Byron R. White: Well, it's just a remedy though, although I say it was 20 years and they cut it down to 10, just to remedy.
William J. Mounce: I don't know the answer quite frankly to your question if it was 10 or 20. I don't know whether it'd be reasonable or not. I think the reason of mine might differ as to the reason and so that particular change --
Byron R. White: Well here they could change in five years.
William J. Mounce: Yes, they did and I think it's reasonable.