Hancock v. Walsh

WOODS, Circuit Judge. This is not a suit against the state of Texas. In the case of Osborn v. Bank of U. S., 9 Wheat. [22 U. S.) 738, it was held that “in deciding who are parties to the suit, the court will not look beyond the record; that making a state officer a party does not make the state a party, although her law may have prompted his action, and the state may stand behind him as the real party in interest, and that a state can be made a party only' by shaping the bill expressly with that view, as when individuals or corporations are intended to be put in that relation to the case.” The doctrine of this case was approved in the later case of Davis v. Gray, 16 Wall. [83 U. S.] 203. See, also, Dodger v. Woolsey, 18 How. [59 U. S.] 331; State Bank of Ohio v. Knoop, 16 How. [57 U. S.] 369; Debolt v. Ohio Life & Trust Co., Id. 432; Debolt v. Mechanics’ & Traders’ Bank, 18 How. [59 U. S.] 380; Jefferson Branch Bank v. Skelly, 1 Black [66 U. S.] 436. This suit is brought, not against the state, but against an officer of the state, who, it is alleged, without the authority of any valid law of the state is, by an unwarranted assumption of power, so using his official position as to invade rights secured to complainant by the constitiition and laws of the United States. This is the very case put by the supreme court of the United States in Osborn v. Bank of U. S., supra, where it is decided that “a circuit court of the United States may enjoin a state officer from executing a state law in conflict with the constitution or a statute of the United States, when such execution will violate the rights of complainant. To the same effect are the cases of Davis v. Gray, supra, and Board of Liquidation v. McComb, 92 U. S. 531. It appears from the bill that Mercer concluded with the republic of Texas, a contract of colonization, that he performed its conditions, that rights have accrued to him and his associates, that these rights have been ascertained and fixed as to quantity and [407] character, that he and his associates have a vested interest in the lands described in the contract, and that the state of Texas now holds the nominal legal title only, and thai the defendant is violating his oiiicial duty as land commissioner by issuing td. strangers' certificates of title to lands which are in fact the property of complainant and his associates. Is it within the power of the state of Texas to disregard the contract made by Mercer with the republic of Texas? If it is not, then, if the commissioner of the general land office is invading the rights of Mercer or his successors under the contract, either with or without the apparent authority of the legislature, his acts should be restrained by this court. The supreme court of Texas, in the case of Melton v. Cobb, 21 Tex. 539, has held that the contract of the republic of Texas with Mercer was a valid contract. The court, in that case, declares that the legislative recognitions of the contract must be deemed to have put the question of its validity at rest It was, therefore, binding upon the republic. It was a grant of lands upon a condition subsequent, which condition the bill avers has been performed. It created an obligation on the part of the republic to convey the legal title to the lands as soon as the conditions had been performed. It was a liability of the republic, which held the title to lauds which it had contracted to convey, and for which the consideration has been paid in full. It was as complete and binding a liability as a sovereignty could assume. And the debates in, and action of, the convention of 1845, convened to frame a constitution for the state of Texas, show that these colonial contracts, including Mercer’s, were regarded as liabilities of the republic. See Debates of the Convention of 1845, pp. CIO, 614, 616, 61S. 620, 623, 627, 62S. 630, 033, 640, 644. Now, what is the relation of the state of Texas to this liability? By the first of the joint resolutions passed by the congress of the United States for annexing Texas to the United States (5 Stat. 797), it was declared that “congress doth consent that the territory properly included within and rightly belonging to the republic of Texas may be erected into a new state, to be called the state of Texas, with a republican form of government, adopted by the people of said republic by deputies in convention assembled, with the consent of the existing government, in order that the same may be admitted as one of the states of this Union.” The second of said joint resolutions declared “that the foregoing assent of congress is given upon the following conditions, to wit: * * * Second, said state, when admitted into the Union, after ceding to the United States all public edifices, fortifications, barracks, * * * and all other means pertaining to the public defense belonging to the republic of Texas, shall retain all the public funds, debts, etc., * * * and all the vacant and unappropriated lands lying within its limits to be applied to the payment of the debts and liabilities of the republic of Texas, and the residue • of said lands, after discharging said debts and liabilities, to be disposed of as the state may direct, but in no event are said debts and liabilities to become a charge upon the government of the United States.” These resolutions, on July 4, 1845, were accepted by an ordinance which passed the convention with but one dissenting vote, which was signed by every member of the convention, and which, after reciting the resolutions, declared, “that in order to manifest the assent of the people of this republic, as required in the above recited portions of said resolutions, we, the deputies of the people of Texas, in convention assembled, in their name and by their authority, do ordain and declare that we assent to and accept the proposed conditions and guarantees contained in the first and second resolutions of the congress of the United States aforesaid.” Hart. Dig. 44, 47. On'the faith of the acceptance of these resolutions, Texas was admitted as a state into the Union of states. Is it now within the power of Texas to refuse compliance with any of the conditions imposed by these resolutions? It seems to me to be clear that it is not. The passage of the resolutions by the congress of the United States and their acceptance by the deputies of the people of Texas constituted either a treaty or a contract. It probably cannot be considered as a treaty, because it was not made by the president by and with the advice and consent of two-thirds of the senators present, as prescribed by section 20, article 2, of the constitution, unless the long acquiescence of all departments of the government gives it the force and effect of a treaty. Whether it be a treaty or a contract, it is alike within the clause of the - constitution of the United States which forbids a state from impairing the obligation of contracts: Green v. Biddle, 8 Wheat. [21 U. S.] 1. If it is to be considered a treaty, it is protected by the second clause of article 6 of the constitution of the United States, which declares: “This constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” If this is a treaty, the legislature of Texas can no more repeal or annul it than it can annul or repeal a clause in the constitution of the United States. If it is to be considered as a contract it is equally beyond the power of the legislature; for a state is as much forbidden by the constitution from passing laws to impair the obligation of contracts made by herself as by other parties. By no device that a state can resort to can she escape this constitutional prohibition. It is perfectly clear that she cannot authorize her agents to violate her own contracts by leaving it to their [408] discretion whether they shall violate them or not. All that the complainant asks in this case is that an officer of the state of Texas may be enjoined from invading his rights by a disregard of the compact made by the state of Texas on the faith of which she was admitted as a state of the Union. The state of Texas has never repudiated the contract made with Mercer. On the contrary, it has been pronounced valid and binding by her supreme court, as we have seen in Melton v. Cobb, supra. The act of the legislature of Texas of February 2, 1850 (Hart. Dig. 702), is the only act to which we have been referred that gives authority to any one to issue certificates to be located within the Mercer colony, and those wer* to be issued, not generally, but only to settlers in the colony who were entitled to lands under the Mercer contract, and not by the commissioner of the general land office', but by a special commissioner appointed by the governor, who was to hear proof and determine what colonists were entitled to the lands. This is a recognition, rather than a repudiation, of the contract. There is no act of the legislature of Texas directly imposing upon the commissioner of the general land office the duty of issuing certificates for location within the Mercer colony, and if there were, it would be null and void. Nor have we been referred to, or have we been able to find, any act which clothes the commissioner of the general land office with judicial or quasi-judicial functions in regard to the issue of certificates and patents. He is, in regard to these duties, a ministerial officer only. The ground assumed by complainant, that, by reason of the facts stated in the bill, the state of Texas becomes a trustee for him and his associates, seems to be well taken. A state may become a trustee. Perry, Trusts, § 41. The contract between the republic of Texas and Mercer was a grant of lands to Mercer upon a condition subsequent, which, according to averments of the bill, was performed. The legal title remained in the republic, which thereby became a trustee for Mercer and his associates. 3 Washb. Real Prop. (3d Ed.) 525 et seq. On the execution of the contract, Mercer took a vested estate, defeasible only on the non-performance of the condition. This trust imposed upon the republic of Texas was not extinguished by the formation of the state of Texas and her annexation to the Union, but was imposed and fastened upon the state as the sovereign successor of the republic. New Orleans v. U. S., 10 Pet. [35 U. S.] 662; Smith v. U. S., Id. 326; U. S. v. Arredondo, 6 Pet. [31 U. S.] 691; Pollard’s Heirs v. Kibbe, 14 Pet. [39 U. S.] 353. The state of Texas therefore is in the same plight, as regards the rights of Mercer and his associates, as the republic was, and holds the relation to them of trustee to cestui que trust. We have already seen that the state of Texas, by her own express consent, given in the most solemn manner, agreed to hold the public domain of the republic and apply it to the extinguishment of the liabilities of the republic. She therefore became a trustee for the parties to whom the republic was liable, not only by operation of law. but also by her own express contract. This is an express trust which is defined to be a trust created by instruments that point out, directly and expressly, the property, persons and purposes of the trust. Perry, Trusts, § 24. If the state were, therefore, a party to this suit, it would not be competent for her to set up lapse of time or any defense analogous to the statute of limitations to protect her from being called on to execute the trust. For, as between trustee and cestui que trust, in the case of an express trust, such as this, the statute of limitations has no application and no length of time is a bar. Perry, Trusts, § 836, and cases cited. Much less can an officer of the state— who, according to the averments of the bill, is by his acts, done without warrant of any valid law of the state, invading the rights of the beneficiaries of a trust assumed by the state — plead the lapse of time against the enforcement of the trust. But, even if the defendant were in a position to set up the defense of lapse of time against the relief prayed by the bill, I think the averments of the bill offer reasonable excuse for the delay in bringing the suit, and it is the law of this state that, when such excuse is offered, the court will not apply the limitation. McKin v. Williams, 48 Tex. 89. It is objected that the bill is not sworn to. The want of verification of the bill is not ground of demurrer. If the bill is not sworn to, the court will not allow an injunction to go unless its averments are sustained by evidence, The laws of congress, of the republic and of the state of Texas, and the facts of public history, of all of which the court takes judicial notice, the exhibits to the bill and the affidavits on file, sufficiently establish its aver-ments. The foregoing discussion has covered all the grounds of demurrer, and, in the opinion of this court, none of the grounds are well taken. This is not a suit against the state, and does not seek to deprive her of the power of disposing of her own lands in her own way, for the lands which the complainant seeks to appropriate are not the property of the state. The relief sought by the bill may be properly granted by a court of the United States, and the complainant is not compelled to seek his rights through the political department of the state government, to which he and his predecessors have, according to the bill, repeatedly appealed in vain. The acts of the defendant against which relief is prayed are purely ministerial acts. Any law which authorizes the defendant to disregard the contract of the state is null and void, and therefore is not binding in law. If the defendant violates the provisions of a contract protected by the constitution of the United States, it is immaterial whether he is doing it with or without [409] the apparent sanction of a law of this state, and no claim that defendant is performing an official duty will avail him. The aver-ments of the bill make a case of the highest equity, which imperatively demands the interference of this court to prevent irreparable injury to complainant and his associates. The complainant seeks to enforce an express trust, which no lapse of time can render stale. The case seems to run on all fours with the case of Davis v. Gray, supra, which went up from this district, and in which the governor ■of the state and the commissioner of the general land office were enjoined from issuing patents for lands within the territory granted by the state of Texas to the Memphis & El Paso Railroad Company. The conclusion seems inevitable that the demurrer must be overruled and that the injunction should go ns prayed in the bill. And it is so ordered.