Chambers v. Fisk

• Decision Date: 01 January 1858
• Citation: 22 Tex. 504
• Parties: T. J. CHAMBERS v. JOSIAH FISK AND OTHERS.
• Court: Texas Supreme Court

22 Tex. 504

T. J. CHAMBERS

v.JOSIAH FISK AND OTHERS.

Supreme Court of Texas.

1858.

In the organization of the Mexican system of government, under the constitutive act and the constitution, while the exclusive power to legislate, upon all subjects pertaining to the federal union, or the foreign policy of the nation, was conferred upon the general congress, in all that belonged to their internal government and administration, the states retained their liberty, independence and sovereignty.

The general government, in recognizing the states, as organized under their constitutions, conceded to them the right of internal administration, as effectually as though the states had first been free and independent sovereignties, and had, by joint concession and agreement, formed the federal government.

While the courts, under their system, had no authority to judge of the constitutionality of the laws, but were bound to execute them without questioning their validity, ample precautions were devised to detect any violations of their constitutions.

The president had power to make regulations, decrees and orders, for the better observance of the constitution, constitutive act, and general laws. He was given a supervision over the courts. A permanant council of government was formed, a material part of whose business it was to watch over the constitution, constitutive act, and general laws; and to congress was given the right to interpret the constitution, in doubtful cases, and to punish those violating it. Tribunals were established to punish the higher officers for infractions of the constitution; and even the governors of the states, were subject to be tried for infractions of the constitution, the laws of the union, or orders of the president, not obviously contrary to the constitution and general laws of the union.

The same features are found in the constitution of Coahuila and Texas. It was made the duty of two bodies in the state, to wit, the permanent deputation and the executive council, to watch over the observance of the constitutive act, the constitution and general laws of the union, and the private laws of the state, in order to give notice to congress of the violations they might have observed.

It was not their policy to permit unconstitutional measures to be adopted, and stand as of force, to be executed, and to be complicated by apparent rights growing up under them. That this was not only the theory, but the practice of the government, is shown by the decrees of the general congress, interpreting the federal constitution, restricting the operation of parts of the constitution of a state, and annulling laws enacted by the states.

That a law, subject to these ordeals of supervision and abrogation, was suffered to remain in force long enough for rights to be acquired under it, is a strong circumstance in favor of its validity.

The right to the vacant domain in the state, with the full power to dispose of it, was openly and expressly claimed in the constitution and laws of Coahuila and Texas, and was never sought to be controlled or prevented by the general government, except upon reasons of federal policy, in reference to the introduction of colonists from the United States of the north; and then only in 1835, when the general government, with usurped power, was on its march to the annihilation of the states; and this was protested against by the congress of the state.

The general colonization law (Decree No. 72) was enacted on the 18th of August, 1824, by the constituent congress, before the state government were organized; and emanating from the then supreme power, it was in force in all the provinces or states; and the 12th article fixed a limit to the amount of land to be united in the same hands, with right of property. This implies some discretionary regulations, to be adopted as to the time, and means, to accomplish the general object of the restriction.

In 1825, the state of Coahuila and Texas enacted a colonization law “to augment the settlement of its territory, to advance the raising and increase of stock, and the progress of arts and commerce, in conformity to the constitutive act, the constitution of the republic, and the basis established by decree No. 72, of the general congress.”

And under this general basis, and treating it merely as a general basis, the state established the details of a system, adapted to its local condition; for, while the restriction contained in the general colonization law, was not to the specific amount of eleven leagues of land, whatever might be its quality; but to one league, if it was irrigible land; to four, if arable; and to six, if pasture, making eleven in all of different sorts; under the law of the state, the land was granted without reference to quality, further than in relation to the price to be paid for it; and it permitted more than eleven leagues to be acquired by empresarios, subject to the conditions contained in the law.

The restriction, as to the quantity of land to be granted, contained in the 12th article of the general colonization law, after the full organization of the state governments, was recommendatory, and as it pertained to the internal administration of the state, was subject to be controlled to suit the local condition of the respective states.

If it pertained to the federation to determine how much land the state should give or sell to a colonist, that would not control this case; for the act under which the appellant claimed, was not part of a colonial system, but an appropriation of the means of the state to pay one of its officers.

The 12th article of the general colonization law, constituted no barrier to the acquisition of more that eleven leagues of land, under articles 17 and 239 of decree No. 277.

The decree No. 277, establishing a system of judicature, adapted to the wants, principles and intelligence of her Texan citizens, by the congress of Coahuila and Texas, was not unconstitutional, because not made applicable to other parts of the state where the inhabitants were unacquainted with, and could not have appreciated its advantages.

The governor of Coahuila and Texas was, under the provisions of the constitution and laws, authorized to appoint the superior judge of the district of Texas.

Congress having decreed “that during the approaching recess of congress, the executive may appoint provisionally the superior judge of Texas,” the official tenure of the person appointed by the executive, did not terminate with the next meeting of congress; and it not being shown, that the party appointed did not continue in office for a year or more, the court cannot say that the commission did not determine correctly, in awarding him his salary for one year.

The law fixing the salary of the superior judge of Texas, and providing for its payment, in land, at the price of one hundred dollars per league, was not void, on account of its generality. In this respect, it was not peculiar, but conformed to other laws of more importance. It was in accordance with the custom, to leave the particular details of the object of the law, to be determined and carried out by the executive.

Neither was the commission to the officer, who issued the grant, void, because it left it to be determined by the commissioner, under the law and facts, how much land the applicant should receive.

The commissioner who issued the title, might supply a part of the original title which was lost, by adopting the testimonio.

An objection, that an original title was not filed in the general land office, within the time prescribed by the joint resolution, passed December 14, 1837, cannot be sustained by one whose rights did not accrue, until after such original title was filed in the general land office.

That a title was not written upon stamped paper, is an objection, going merely to the authenticity of the instrument, and may be supplied by proof, aliunde.

The receipt of the plaintiff, to the commissioner who issued his titles, though accompanied by the certificate of the commissioner of the general land office, that he had received the titles described in such receipt, is not, of itself, evidence of the facts stated in the receipt.

The certificate of the commissioner of the general land office, is not competent evidence to show the time when the said office was first opened, when closed, and when again opened.

See this case for an historical account of the organization of the Mexican government, and a review of the powers and functions of the state and federal government.

If title papers, and documents which were unnecessary, in order properly to determine the merits of the question to be decided in this court, have been offered and introduced in the record, the appellant should be taxed with the costs thereby occasioned.

APPEAL from Williamson. Tried below before the Hon. Nat. M. Burford.

The facts are stated in the opinion.

T. J. Chambers and J. W. Harris, for appellant.

John Hancock, for appellees. We assume, as a postulate, not open to controversy, that this court, in adjudicating a title emanating from the Mexican governments, are bound to take the same judicial cognizance and notice of the laws in force at the date of the grant, which they are of the laws of the republic or state of Texas; they are not treated as foreign laws, nor required to be ascertained and determined, as foreign laws are, by a jury, upon proof by witnesses. Arguello v. United States, 18 How. 539; The United States v. Philadelphia and New Orleans, 11 Id. 609;United States v. King, 7 Id. 833. See also, this doctrine broadly asserted in a report signed by Chief Justice Hemphill, and other distinguished jurists, in the convention which formed the state constitution. Debates of the Texas Convention, p. 295. The 1st section of the schedule of the constitution of the republic of Texas, clearly enjoins judicial notice of the laws of the former government; and previously, in the ...