Comm'r of the Gen. Land Office v. Smith

• Decision Date: 31 December 1849
• Citation: 5 Tex. 471
• Parties: COMMISSIONER OF THE GENERAL LAND OFFICE v. SMITH.
• Court: Texas Supreme Court

5 Tex. 471

COMMISSIONER OF THE GENERAL LAND OFFICE

v.SMITH.

Supreme Court of Texas.

December Term, 1849.

The writ of mandamus lies as a private remedy to compel the heads of departments to perform a duty in cases where the duty is plain and where there is no discretion.

A mandamus will issue to an officer only where the duty to be performed is ministerial in its character, but not where the exercise of judgment or discretion is required. (Note 84.)

There are various duties assigned to the Commissioner of the General Land Office to be performed before the patent can issue. He must pass upon the validity of the certificate and survey. He must also determine whether the land was vacant when located or was appropriated by a previous claim, which he is required by law to respect. When these and such other questions as may address themselves to the commissioner under the laws prescribing his official duties shall have been resolved in favor of the applicant, the issue of the patent becomes a mere ministerial act, involving no exercise of judgment, and one which the commissioner has no discretion to refuse.

A mandamus will not be issued where it appears that it would affect persons who are not before the court, and where the rights of those persons have not been determined in a previous suit. (Note 85.)

The issue of the patent does not determine or impair the rights of older claimants. (Note 86.)

A reasonable time must be allowed for delineating surveys on the map of the county.

After the expiration of the period allowed by the act of February 1, 1843, for persons owning lands in the counties of Refugio and San Patricio by titles from the Mexican Government or from the Government of Coahuila and Texas, the lines of which had not been correctly and permanently marked and designated, to cause the same to be resurveyed and returned to the General Land Office, if those persons for whose benefit the provision was made had omitted to avail themselves of the privilege afforded by it, whatever claims they may have had, they no longer interposed any obstacle to the issuing of patents to subsequent claimants.

A party cannot, under the form of a proceeding by mandamus to compel the Commissioner of the General Land Office to issue a patent, bring any other party to whose lands he may choose to assert a claim from his home or the county in which the lands may be situated to the seat of Government to defend his title; and, therefore, where the object of the suit is to try the title to land, the law requires that the suit shall be instituted in the county where the land is situated. It is only where the right or title is not litigated or has been adjudicated that the party may proceed by mandamus against the commissioner.

The simple dissolution of an injunction, without any further order respecting the determination of the questions in controversy, places the parties in the same attitude occupied by them before the injunction was issued, nothing more.

Appeal from Travis. This was a proceeding instituted by the appellee in the District Court of Travis county to compel the Commissioner of the General Land Office to issue to the petitioner patents to certain lands claimed by him in the county of Refugio.

The appellee filed his petition in May, 1841, alleging that he had in his own right and as the agent for others located and had surveyed in the county of Refugio land claims, consisting of headright certificates, land scrip, and military bounty land, all emanating from the proper authorities of the Government, a list of which is alleged to be filed as a part of the petition, marked X; that the field-notes had been returned to the land office, and were there on file, and were free from any valid objection; that the county surveyor had made out and returned to the land office a map of the entries and surveys in said county, which was referred to to make manifest that the petitioner had located no land but such as was liable to location; that he had done everything which the law required of him to entitle him to patents on said entries, and had demanded them of the Commissioner of the General Land Office, who refused them, alleging that the entries of the petitioner or some of them covered or conflicted with old claims originating under the empresario contract of Power & Hewitson. The petitioner further alleged that all the old claims which can be identified have already been put upon the county map as he believed; that he had learned that some of the lands claimed by him had been claimed by others, but that their claims had no foundation in law; that the commissioner who purports to have issued them had no authority to make the titles; and that they had no identity as to their beginning or ending corners or marked lines, and embraced within their boundaries as claimed ten times as much land as was called for in the grant. The petition concluded with a prayer that the Commissioner of the General Land Office be required to show cause why a mandamus should not issue.

The exhibit referred to contained on its face, marked A, what purports to be “a list of scrip in the General Land Office at Austin city in the name of Thomas Y. Williamson, located in Refugio county,” certified by Thomas W. Ward, ““Commissioner General Land Office.” On the reverse side of this paper was indorsed what purported to be “Exhibit X,” a list of the headrights surveyed and returned to the General Land Office from the county of Refugio by the order of Joseph F. Smith.” Those lists embraced merely the numbers of the claim and the amount of land called for by each.

At the Spring Term, 1841, the commissioner answered, “saving all legal exceptions,” that he had not issued patents to the complainant “because there is evidence in the land office that the lands claimed by said Smith were titled to others previously to the Declaration of Independence, to wit, to colonists or claimants in Power & Hewitson's colony, now known as Refugio county, and because this office has not yet furnished to the county surveyor of Refugio county the field-notes of the surveys for said old claimants, as required by special statute, but is now preparing said field-notes to be forwarded as speedily as possible to the county surveyor of said county.” The commissioner admitted that after an inspection of these field-notes he believed they were imperfect, and that it would be impossible to find the old lines; wherefore he prayed the court to consider of the premises and to inform him as to his duty.

At the Fall Term, 1844, the commissioner amended his answer, alleging that “shortly after the requisition made upon him by the surveyor of Refugio county for data to enable the said surveyor to complete a map of that county, (which requisition he said would be found in a copy of a letter from the surveyor accompanying the answer of the respondent in the case of Plummer v. The Republic,) the disturbed and unsettled condition of the country, occasioned by war, caused the records of the surveyor's office of Refugio county to be removed to Galveston for safety, where they now are; in consequence of which no map has ever been completed representing the situation of old titled lands in the county of Refugio.”

The cause was continued from term to term without any further proceeding until the Fall Term, 1846, when there was an entry simply of “enjoined,” and the cause was subsequently continued from term to term until the Fall Term, 1848, when a peremptory mandamus was awarded commanding the commissioner to issue patents according to the prayer of the petition. From this judgment the commissioner appealed.

There was a “statement of facts” as follows: “That on the trial of this cause a jury was named by the parties, and the cause submitted to the court. The plaintiff read his petition and proposed to read the paper (not attached to the petition) marked on the face ‘Exhibit A,’ and on the back ‘Exhibit X,’ to which the defendant, by his counsel, objected, but the court permitted the plaintiff to read it as a part of his petition. The defendant then read the answer and amended answer of the Commissioner of the General Land Office. The mandate of the Supreme Court in the case of Joseph F. Smith, appellant, and James Power, appellee, was then read. Neither party offered any evidence in the cause. The said petition, exhibit, answers, and mandate contained all the matter that was submitted to the court.” The mandate of this court referred to in the statement of facts, after certain recitations, proceeded: “It is ordered,” &c., “that the judgment of the court below be reversed; and the court here proceeding to render judgment, it is ordered,” &c., “that the injunction issued against the Commissioner of the General Land Office, so far as it restrains the said commissioner from issuing patents to lands claimed by the said Joseph F. Smith for himself and others, and as attorney for Joseph E. Plummer, and which are included within and distinguished from other lands by dotted lines and marks on the map of the county, filed among the papers of this cause,” (proceeding to designate the several surveys by letters and numbers,) “and that the injunction restraining Joseph F. Smith, the plaintiff in error, from prosecuting his application for a writ of mandamus be, and the same is hereby, dissolved.”

Howard, for appellant.

I. In this case a mandamus will not lie, because there is another specific remedy. The answer of the commissioner shows that there is a conflict with an old grant. The party has another remedy. He may sue on his certificate and survey and try his strength of title, and ought to be required to do so before the patent issues. Title ought not to be tried on an application for a mandamus to the commissioner. (3 vol. U. S. Digest, MANDAMUS; 1 Wend. R., 318; 10 Johns. R., 484; People v. Stevens, 5 Hill R., 629; Dallam, 366.)

II. Where the law vests a discretion in an officer, and he...