Durrett v. Crosby

• Decision Date: 31 October 1866
• Citation: 28 Tex. 687
• Parties: JOHN M. DURRETT v. STEPHEN CROSBY, COMMISSIONER OF THE GENERAL LAND OFFICE.
• Court: Texas Supreme Court

28 Tex. 687

JOHN M. DURRETT

v.STEPHEN CROSBY, COMMISSIONER OF THE GENERAL LAND OFFICE.

Supreme Court of Texas.

October, 1866.

No principle is better settled, both on reason and authority, than that a mandamus will not issue to compel a public officer to perform an act, unless the act be clearly enjoined and defined by law, and be therefore ministerial in its character, neither involving the exercise of discretion nor admitting of any alternative. Pas. Dig. note 182; art. 1407, note 528; 3 Tex. 51;4 Tex. 329;5 Tex. 471;6 Tex. 475;9 Tex. 81;22 Tex. 559.

The provision of the 11th section of the act of February 7, 1860 (Laws 8th Leg. p. 54), authorizing the commissioner of the court of claims to re-examine and approve or reject land warrants and certificates which had been previously approved, were within the constitutional power of the legislature. Pas. Dig. arts. 1159, 1164; 1 Tex. 764; 2 Tex. 497; 23 Tex. 93.

On the trial of a suit for a mandamus to require the commissioner of the general land office to issue a patent on a land warrant rejected by the commissioner of claims on the re-examination authorized by the act above referred to, it is altogether immaterial that the holder of the warrant was, at a former period and by virtue of its original approval by the commissioner of claims, entitled to a patent upon it.

The only mode by which a warrant or certificate rejected on re-examination by the commissioner of claims could again be made evidence for any purpose of a right to land was by the establishment of its validity in the manner provided in the statute itself. The commissioner of the general land office had no power or discretion to issue a patent on a re-examined warrant or certificate, unless the commissioner of claims had approved it on the re-examination.

In this proceeding for a mandamus to the commissioner of the general land office, it is immaterial to inquire into the motives or reasons which actuated the commissioner of claims in rejecting the warrant on its re-examination by him, for, no matter how improper or erroneous may have been those motives or reasons, the commissioner of the land office had no authority to revise and correct the action of the commissioner of claims.

A rejection by the commissioner of claims of a certificate or warrant re-examined by him was not void for the reason that it was made before the time limited in the 11th section of the act mentioned. The object of that provision was to secure to claimants ample time to present their evidence. Pas. Dig. art. 1159.

The most that can be said is, that such a premature rejection would not preclude the claimant, at any time before the expiration of the time allowed him, from adducing all the evidence he could in support of his certificate, and that the time at which he was barred from establishing his certificate by suit would only commence to run against him from the period at which the commissioner could have conclusively rejected his certificate.

APPEAL from Travis. The case was tried before Hon. A. D. MCGINNIS, one of the district judges.

This was a petition for the writ of mandamus, to be directed to the commissioner of the general land office, and requiring him to issue to the appellant a patent for twelve hundred and eighty acres of land in the county of Wise. The petition was filed at the fall term, 1864, of the Travis district court. It set forth that the petitioner, Durrett, is the owner of bounty land warrant No. 593, issued to Cain T. Brush, on the 11th of January, 1850, by the then adjutant general of the state, and calling for twelve hundred and eighty acres; that the warrant had been located on a certain tract of land in Wise county, particularly described in the petition; that the warrant and the field-notes of the survey had been duly returned and filed in the general land office within the time limited by law, and that the survey was properly delineated on the maps of that office; that, on the 24th of February, 1857, the warrant was registered in the office of the commissioner of claims, as required by law, and on the 11th of March, 1857, was approved by James C. Wilson, the then commissioner of claims, as a genuine and valid claim for twelve hundred and eighty acres of land; by means of all which the petitioner became the owner and possessor of the said tract of land in Wise county, and entitled to a patent therefor from the commissioner of the general land office; that petitioner had demanded and requested the defendant, Crosby, as commissioner of the general land office, to issue to him a patent for the land aforesaid, but the defendant had refused so to do; that petitioner is the sole owner and claimant of the said warrant, and the transfer to him of the same is on file in the general land office; that no other person sets up any claim to the said tract of land, or to the warrant so located thereon: wherefore petitioner prays for citation to the defendant, as commissioner of the general land office, and for the writ of mandamus, requiring him to issue and deliver to petitioner, upon the payment of the legal fees, a patent for the tract of land in question.

The defendant, Crosby, in his official capacity, made return or answer to the petition on the 9th of December, 1864, and alleged therein, that it is shown by the records of W. S. Hotchkiss, commissioner of claims, that the said bounty warrant had been rejected by him, as appeared by an extract from said records certified and attached to the answer.

On the coming in of the defendant's answer, the plaintiff amended his petition, and alleged that the warrant had been duly filed with and approved by the commissioner, Wilson, as stated in the original petition; that said commissioner kept a register, in which was stated the number and date of the warrant, by whom and to whom it was issued, the quantity of land it called for, the character of service for which it was issued, by whom it was presented, and the person represented to be the owner of it; that in the margin of such register the said commissioner, Wilson, duly noted his official approval of the warrant; and that the warrant, with such approval, was duly reported by said commissioner to the commissioner of the general land office, and to the governor of the state, as was required by law, and the warrant itself was returned to the general land office immediately after its approval, and on or about the 12th of March, 1857; that afterwards, in February, 1860, W. S. Hotchkiss was elected commissioner of claims, and soon thereafter, about the 17th of March, 1860, he, without authority of law, and without the knowledge or consent of the petitioner, erased from the said register the note of approval made thereon by the former commissioner, Wilson, and in the place of such approval wrote the word “rejected,” by means whereof the said record was mutilated and made to represent that said warrant had been rejected by the commissioner of claims, whereas in truth the same had been approved; that the certified copy of the extract from the said register, filed with the answer of the defendant, was made after the mutilation of the register as aforesaid, and is not a copy of the entry as it appeared before the alteration so made by the said Hotchkiss.

And for further amendment, the plaintiff set forth in full and specifically, that he purchased the bounty warrant from the said Cain T. Brush after it had been approved by the former commissioner, Wilson, and that he had no notice whatever of any illegality or invalidity in it; that he bought it in good faith, and had paid for it the sum of $1,000; that the warrant was never thereafter again presented for registry or approval, but that the commissioner, Hotchkiss, obtained possession of it by some means unknown to petitioner, and without the knowledge or consent of petitioner or the authority of law wrote across the face of the warrant the following words, viz.:

“This warrant was presented to the joint committee on court of claims, in 1858, and they were of opinion that it had been improperly approved, inasmuch as the party had received his land before, hence they rejected it; to which I certify.

W. S. HOTCHKISS, Com. of Claims.

MARCH 17, 1860.”

And plaintiff denies that said Hotchkiss had any authority to revise the acts of the previous commissioner of claims, or to reject the warrant after it had been approved by the previous commissioner, or, if he had such authority, he did not exercise it according to the conditions and requirements of the law; that the “joint committee on the court of claims” was not a tribunal created by law, or lawfully authorized to decide upon the legality of the said warrant, and the plaintiff denies the authority of the committee and the validity of its action, or that of Commissioner Hotchkiss founded upon it. And plaintiff says that the said Cain T. Brush did faithfully and honorably serve in the...