Galveston, Brazos, & Colo. Narrow-Gauge Ry. Co. v. Gross

• Decision Date: 01 January 1877
• Citation: 47 Tex. 428
• Parties: GALVESTON, BRAZOS, AND COLORADO NARROW-GAUGE RAILWAY COMPANY v. J. J. GROSS, COMMISSIONER OF THE GENERAL LAND OFFICE.
• Court: Texas Supreme Court

47 Tex. 428

GALVESTON, BRAZOS, AND COLORADO NARROW-GAUGE RAILWAY COMPANY

v.J. J. GROSS, COMMISSIONER OF THE GENERAL LAND OFFICE.

Supreme Court of Texas.

1877.

APPEAL from Travis. Tried below before the Hon. E. B. Turner.

The facts are stated in the opinion.

Flournoy & Scott, and Willie & Cleveland, and Ballinger, Jack & Mott, for appellant.

H. H. Boone, Attorney General, for the State.

GOULD, ASSOCIATE JUSTICE.

The Galveston, Brazos, and Colorado Narrow-Gauge R. W. Co. was, on February 2, 1875, incorporated by special act, the fifth and sixth sections of which are as follows:

“SEC. 5. The State of Texas hereby donates and grants to the said company, out of any unappropriated public land of the State, sixteen sections of land, of six hundred and forty acres each, for each and every mile of railroad constructed and put in substantial running order by them; and whenever any section of five miles of said road has been completed, the said company, through its president and secretary, may give notice of the same to the Governor of this State, in writing, whose duty it shall be, on receipt of such notice, to order the State engineer, if there be any, or if there be none, then to appoint a skillful engineer to examine said section of said road, and to report under oath; and if said section of five miles of said road be found to be constructed and in running order, in a substantial manner, then the Governor shall certify the same to the Commissioner of the General Land Office, and he shall issue to said company sixteen land certificates, of six hundred and forty acres each, for each and every mile of road so constructed and put in running order, and in like manner with each and every succeeding five miles of said road until the whole has been completed. And said company shall alienate their said lands acquired under the provisions of this act, except so much as may be necessary for the uses and successful operation of their said road, as follows: one fourth in eight years, one fourth in twelve years, one fourth in sixteen years, and one fourth in twenty years from the passage of this charter; and on failure to comply with the provisions of this section, said company shall forfeit all benefits under this charter: Provided, That the State shall in no case be liable for a deficiency of public domain, and no land certificate issued under the provisions of this act, which may not be located because of the previous exhaustion of the public domain, shall ever constitute any claim against the State.

SEC. 6. Said company shall be subject to all general laws now in force, or that may hereafter be enacted in this State, regulating railroads and railroad companies, both as to the rates of freight and passage, as well as to the conduct of its officers and employees. Said company shall be liable to all restrictions imposed by any general railroad law of this State, and shall be entitled to any of the benefits conferred by the same.”

In 1876, having obtained the Governor's certificate showing that a section of five miles of said road was “found to be constructed and in running order in a substantial manner,” the company applied to the Commissioner of the General Land Office for eighty land certificates of six hundred and forty acres each, such as might be located and surveyed in single sections, in like manner as head-right certificates.

The commissioner, acting under the advice of the Attorney General, declined to issue any other than alternate certificates, conditioned so as to require under each certificate the location and survey of two tracts of 640 acres each, one for the railway company, and the other for the public-school fund, and this suit was brought to obtain a writ of mandamuscompelling the commissioner to issue certificates unincumbered with such conditions. The court below overruled exceptions denying its jurisdiction to control the action of the commissioner in the issuance of the land certificates. A jury being waived and the cause submitted to the court, the court held that the plaintiff was only entitled to alternate certificates; and from the judgment rendered in accordance with that opinion, the railway company has appealed.

Our opinion is, that the District Court had no jurisdiction, by writ of mandamus or otherwise, to control the action of the Commissioner of the General Land Office in the issuance of the certificates.

In the case of Bledsoe v. International R. R. Co., (40 Tex., 537,) it was held that the courts have no power to compel the chief officers of any of the executive departments of the Government to perform an official duty. We do not regard that case as having been overruled in the subsequent case of Kuechler v. Wright. Whilst the opinion expressed in the latter case developed the fact that a majority of the regular members of the court as then organized were prepared to hold that the District Courts had such jurisdiction, there was no decision to that effect. The principle decided in the case of Bledsoe v. International R. R. Co. is accepted by this court as the law. In the brief opinion delivered by the writer in Kuechler v. Wright, indorsing this principle, he stated that former decisions had recognized the authority of the courts to enforce the issuance of a patent by the Commissioner of the General Land Office through the writ of mandamus, and expressed a doubt as to the propriety of overruling those decisions.

On the principle of “ stare decisis,” of leaving undisturbed a long-settled judicial usage, recognized by a long train of decisions, originating, it is true, at a time when the Commissioner of the General Land Office was not recognized by the Constitution as one of the heads of departments, but was “regarded and treated by the courts as merely a ministerial officer,” but followed up after the change of the Constitution, the writer has been disposed to treat the issuance of a patent by the Commissioner of the General Land Office as an established exception to the general rule. But if this exception be admitted, it is to be limited to the case stated, and not to be extended to cases like the present. In the issuance of certificates to railroads, the Commissioner of the General Land Office is as much beyond judicial control as the comptroller in the issuance of bonds, or the Governor in the discharge of any of his official duties.

For this reason the judgment refusing the writ of mandamus must be affirmed. The court below refused the relief asked for, on the ground that under the law the railroad company was only entitled to alternate certificates. As we concur in this view of the law, a view which would also lead to an affirmance of the judgment rendered, it has been deemed proper, in response to one of the issues in the case, and to the request of the commissioner, assented to by the Attorney General, to state our opinion on this branch of the case, and some of the grounds on which it is based, without intending thereby to control the action of either of those officers.

The system of requiring lands donated to railroads to be surveyed in numbered sections, and of reserving the alternate or even sections for the State, was adopted by the act of January 30, 1854, and the reservation was extended to lands surveyed by virtue of that act, “or of any other act of the Legislature donating lands to any railroad company * * * until otherwise provided by law.” (Paschal's Dig., art. 4955.) The statutes of the State, the decisions of the courts, and the Constitution of 1866 all show that this system continued in force until the Constitution of 1869-70 went into operation. (Paschal's Digest, arts. 4423, et seq., 4947, 7358, et seq.;Tabor v. Com. G. L. O., 29 Tex., 508; Railroad Co. v. Commissioner, 36 Tex., 382;Const. of 1866, art. 10, sec. 3; Paschal's Dig., p. 944.) Sec. 6, art. 10 of the Constitution of 1869-70, which says: “The Legislature shall not hereafter grant any land to any person or persons,” * * * was construed as forbidding any more grants of lands to railroads, but not as affecting their rights under charters already granted, nor as preventing the operation of the system of alternate sections on certificates issued, or to be issued, under ??se charters. The sections reserved to the State had now, under the operation of the Constitutions of 1866 and 1869, become a part of the school fund. In 1871, the Legislature submitted to a vote of the people an amendment of section 6, art. 10, so as to allow of land grants for purposes of internal improvements. In November, 1872, the people voted in favor of the amendment; and on the 19th of March, 1873, it was ratified by the Legislature, and became a part of the Constitution. Just one day previous, to wit, on March 18, 1873, “An act to set apart one half of the public domain for the support and maintenance of public schools” was approved, and, if valid, took effect as follows:

“SEC. 1. Be it enacted by the Legislature of the State of Texas, That one half of the public domain of the State of Texas, or so much thereof as can be, is set...