Tabor v. Commissioner of the General Land Office

Smith, J. On the 26th June, 1860, Tabor applied to White, commissioner of the general land office, to purchase six hundred and forty acres of land on Brazos island, in Cameron county, under Arts. 1221 and 1223, O. & W. Dig., the former as amended by act of February 1, 1860. (Laws of 8th Leg., p. 30,) [Paschal’s Dig., Arts. 4423, 4424, Note 990.] In his application he states the section to be the same that was surveyed 26th May, 1847, for L. Dobbins, by virtue of Thomas Toby’s scrip Do. 185, by the surveyor of San Patricio county; the field-notes of which, set out in his petition, were on file in the land office at the time of his application to purchase this survey as a section of land within the meaning of said articles. The six hundred and forty acre tract conflicts in part with two surveys, of one hundred and sixty acres each, previously made. Tabor avers these surveys null and void, because the certificates in virtue of which they were made had been issued by the commissioner of the general land office without any authority of law, express or implied, direct or discretionary, and must be wholly disregarded. The commissioner declined to give the order to the treasurer to receive the price fixed upon the land by law, ($800,) and Tabor instituted this proceeding by mandamus — 517 — to compel Mm to give the desired order to the treasurer to receive the money for the land at $1 25 per acre. White appears, and excepts to the petition for want of merits, and the exception is sustained and cause dismissed, and Tabor has appealed to this court. The special act of February 11, 1854, granting ninety-four sections of land, of six hundred and forty acres each, to the Galveston and Brazos Navigation Company, and also the act of January 30, 1854, to encourage the construction of railroads in Texas, by donation of sixteen sections to the mile, (O. & W. Dig., Art. 1666,) made it the duty of all these favored companies to locate and survey the land so designated into sections of six hundred and forty acres each, in square blocks not less than six miles, unless prevented by previous surveys or navigable streams, and to delineate such surveys upon maps, coloring differently the even and odd sections, which were to be regularly numbered from one upwards to the full number contained in the block. The field-notes of these surveys and maps the respective companies were required to deposit in the general land office. (O. & W. Dig., Art. 1668,) [Paschal’s Dig., Art. 4947, Note 1081.] The commissioner is directed to issue patents for the odd sections to the railroad companies, while the even or alternate sections of land, surveyed as aforesaid, are reserved to the use of the State, and were not liable to location, entry, or pre-emption privileges, until provided by law. (O. & W. Dig., Art. 1677,) [Paschal’s Dig., Art. 4956.] It will be remembered that the islands had been reserved from location- and survey, and none of the bonus lands of these companies could ever have been located and surveyed on any of them. Article 1221, O. & W. Digest, as amended by act of 1860, (Laws 8th Leg., p. 30,) reads as follows, viz: “The alternate sections of land surveyed and reserved to the State, under the provisions of the laws to encourage the con — 518 — struction of railroads by donations of land, and the act granting land to the Q-alveston and Brazos ¡Navigation Company, and the islands heretofore reserved, and all other reserved sections, may be sold at $1 25 per acre: Provided, That fractions of less than one hundred and sixty acres, within the Memphis, El Paso, and Pacific railroad reserve, and that have not been surveyed by the company, shall be subject to settlement and sale, or either, at fifty cents per acre, as hereinafter provided for by this act.” [Paschal’s Dig., ¡Note 990, p. 729.] It is apparent that the legislature intended by this act to bring into market all the “alternate” and “reserved” sections of land in the State that had been surveyed by the railroad and other companies and reported to the general land office by them, with the field-notes of each section delineated and numbered upon the map, and also the islands that had been reserved from sale; but there is nothing in this section that would authorize the surveying or sectionizing of the islands, nor do we know of any express law that does. • Article 1223, O. & W. Digest, under which Tabor claims the right to purchase the land as a section, reads as follows," to wit: “Any person desirous of purchasing one or more sections of the land mentioned in the second section of this act, (O. & W. Dig., Art. 1221,) shall make application to the commissioner of the general land office, stating the section or sections he desires to purchase; and thereupon the commissioner of the general land office shall give to the applicant an order to the treasurer of the State, directing the "treasurer to receive from the applicant the price of the section or sections he desires to purchase, stating the name of the purchaser, and describing the section or sections applied for by number; and the treasurer, upon payment of the price, shall give to the purchaser a receipt in like manner, stating the purchaser’s name, and describing the land; and upon presentation of said receipt to the com — 519 — missioner of the general land office he shall issue to the purchaser a patent or patents for the lands so purchased and paid for.” [Paschal’s Dig., Art. 4425.] This section of the act only authorizes the commissioner to give the order to the treasurer, to receive the price of the land, and to issue the patent for those sections of land referred to in Art. 1221, (O. & W. Dig.,) [Paschal’s Dig., Note 990,] which are the “ alternate sections” of land “ surveyed”. and “reserved” to the State under the provisions of the laws to encourage the construction of railroads by donations of land and the act granting land to the Galveston and Brazos Navigation Company, which sections, it is pre-supposed, are surveyed, delineated, and numbered upon the maps deposited in the office of the commissioner, in conformity with law. It enacts simply, that upon presentation of the receipt of the treasurer for the price, he shall issue a patent to the purchaser for the section or sections purchased and paid for by him. It does not provide for the survey or legal identification of the sections other than what already appears in the office. There certainly is nothing in either of the articles quoted, and under which the appellant claims, that expressly fixes the mode for the sale of any part of the islands. Nothing can be sold under these sections of the law but the “ alternate and reserved sections ” of lands that have been surveyed in a legal manner and as aforesaid. The appellant claims a section of land surveyed in 1847, by virtue of Thomas Toby scrip No. 185. This survey and field-notes are void and unofficial, from the fact that the surveyor had no authority to make the survey, the islands then being reserved from location. It is nothing more than a survey made by a private person unofficially, and must be so treated by the commissioner. (The State v. Delesdenier, 7 Tex., 76; Linn v. Scott, 3 Tex., 67.) The legislature evidently intended to place the islands in the market for sale at $1 25 per acre, as well as the reserved — 520 — sections of land, as before mentioned. But in the section No. 4, (Art. 1223, O. & W. Dig.,) which was intended to provide the mode of selling and making title to the lands thus brought forward into market, the legislature has only expressly provided for the sale of the alternate and reserved sections, and not for the sale of the islands, or any part of them; and we know of no law that does expressly authorize the sale of them. It appears to be an omission or oversight in the legislature—a casus omissus; and we know of no law that would, by implication, authorize the sale in the manner desired by the appellant. There being no express mode prescribed for the sale of the islands, the commissioner thinks he is invested with a discretionary power, and in the exercise of that discretion has adopted the general plan of the State for locating and surveying certificates to the islands issued by him. It might be asked by what authority he issues the floating island certificates, any more than the county court or any other tribunal of the State which has been in the habit of granting or issuing certificates? It may be said with some plausibility, that the legislature designedly omitted to provide a -mode of selling the islands at that time, in the same manner that the constitution of the Republic fixed the head-right of persons who were residents of Texas on the 2d March, 1836; but, to perfect their rights, further legislation was necessary. But if it be admitted that he has discretionary powers, and in the exercise of that discretion has adopted a plan different from that proposed by Tabor, we must hold that the action of the commissioner in this respect will not be reviewed by us on this proceeding for mandamus. The writ will not be granted against a public officer unless the right be clear and unquestionable, and the duty as clearly defined and enjoined upon him by law, and which is ministerial in its nature, and involves no judicial function, discretion, or alternative. (3 Tex., 51; 5 Tex., 471; 12 — 521 — Pet., 524; 22 Tex., 24;) [Paschal’s Dig., Art. 4248, Note 972.] And, on the other hand, if it be admitted that he has no such discretionary powers in respect to the mode of selling the islands, then it follows that he has none at all, either express or implied, absolute or discretionary, and he will be sustained in refusing the application of the appellant to purchase in the mode designated by him. If there were no other objection to the application for the writ of mandamus in this case, the fact that there are other claimants to the land, who are not parties to this proceeding, would furnish grounds for refusing it. The averment that their claims are void will not relieve the matter of the difficulty; for this court will not undertake to adjudicate their claims, whether valid or not, when the claimants are not parties to the suit. These controverted rights between parties must be settled in a suit in the county where the land lies, before the commissioner can be proceeded against. (5 Tex., 484; 2 Tex., 57.) There being no error in the judgment of the court below, it is Aebtrmed. — 522 — V