Goode v. Mcqueen's Heirs

Citation3 Tex. 241
PartiesSAM'L GOODE, Plaintiff in Error, v. MCQUEEN'S HEIRS, Defendants in Error
Decision Date31 December 1848
CourtSupreme Court of Texas
OPINION TEXT STARTS HERE

Error from Jasper County.

The assent of the federal executive of Mexico was a condition precedent to the right of the state authorities to make grants of land within the limits of what was known as the border and coast leagues; and a grant made by the authorities of the state of Coahuila and Texas, within those limits, is absolutely void, unless it be shown that it was made with the approbation of the supreme government. [ Post, 321, 499; 14 Tex. 146;16 Tex. 617;26 Tex. 180.]

The authority to control these lands having been retained by the federal government, no presumption can arise in favor of a grant made by the executive of a state, until it be first shown by proof that the power to make the grant had been conferred upon him.

After the power to make the grant has been shown to exist in the officer who has exercised it, the grant itself carries with it all presumptions in favor of its correctness.

The judiciary had no power, under the constitution of Mexico, or of Coahuila and Texas, to declare acts of the legislature of either government unconstitutional. The power to interpret the constitution resided in the legislative department alone.

The only question presented in this cause is one which came up on a bill of exceptions to the decision of the court in refusing to give certain instructions to the jury. It is fully stated in the opinion of the court.

ARDREY for plaintiff in error.

The form of government established after the overthrow of the Spanish Vice-Royalty in Mexico, was a limited monarchy, in conformity with the Plan of Iguala, and treaty of Cordova, and the Spanish monarchy was provisionally adopted. The executive department of the government was administered by a regency, of which the Generallissimo Don Augustin Iturbide was president. The government went into operation on the 24th February, 1821. By this revolution and the establishment of a new government, the patrimonial right of the King of Spain passed to the new government. [1 White's Recopalacion, p. 565.] On the 19th of May, 1822, the provisional congress was turned out of doors, and Iturbide was proclaimed emperor of Mexico, and the imperial government continued until the 29th May, 1823. [1 White, 570.] The institutent congress then provisionally organized a government, and published the same on the 4th of October, 1824. [1 White, p. 410.] The supreme executive power provisionally appointed by the general sovereign constituent congress [Decree No. 72] on the 18th August, 1824, passed a national colonization law, which offered to foreigners who should come to establish themselves within the territories of the Mexican nation, security for their persons and property; and to carry out this measure of public policy, it provided that the lands of the nation could be colonized. [Art. 2, Nat. Col. Law, 1 White, p. 601.] For the purpose of accomplishing this measure of public policy, this national colonization law required of the states composing the Mexican Confederation, that the legislatures thereof should, as soon as possible, form colonization laws, subject to such provisions as had been adopted on the subject of colonization, to the constitutive act, general constitution, and the regulations of that law. [Art. 3, Col. Law, 1824, p. 601.]

This national colonization law, in the 4th section, prohibited the colonization of any lands comprehended within twenty leagues of the limits of any foreign nation, or within ten leagues of the coast, without the previous approbation of the general supreme executive power; and the 5th section of the same law gives us the reason why this prohibition was made.

At this time, the power of sovereignty was vested in the general sovereign constituent congress; and it, in the distribution of the powers and rights of sovereignty in the organization of the new government, prohibited the colonization of any lands within the border leagues, except with the assent of the supreme executive power. The right to colonize depended upon that assent of the supreme executive power, which is evidence of the right of domain in that power.

The state of Coahuila and Texas, by its constituent congress, on the 24th March, 1825 [Decree No. 16], reciting the powers thus conferred (and submitting to them) by the Decree No. 72 of the general supreme instituent congress, decreed the colonization law of that date, and provided in detail for carrying out the provisions of the national colonization law. In article 7 of that law, the executive of the state is charged to take care that within twenty frontier leagues bordering on the United States line, and ten littoral leagues upon the coast of the Gulf of Mexico, within the limits of the state, no other settlements shall be made than such as shall meet the approbation of the executive of the union; to whom all future petitions on the subject, accompanied by the corresponding report, shall be transmitted. [Art. 7, Laws Coahuila and Texas, p. 16.] Thus recognizing that any colonization settlement upon the border leagues, without the assent expressed, was a nullity; and a right and permission to occupy them without it was contrary to law. This assent was necessary to acquire a title, and is certainly evidence of the right of domain in the general government of Mexico to this particular country. There is no law that can be found, where any state or officer is permitted to give that assent; and the act of the state, or any of its officers, permitting a settlement thereon, was contrary to law, and void. It has been contended that the words “no other settlements,” as used (the Art. 7th), mean empressa contracts. Such could not have been the intention of the legislature; for, in the Art. 11 of the colonization law of the state of Tamaulipas, the words used therein are, “no town projected by foreigners.” [Laws C. and T. p. 345.] We think, then, with regard to this portion of the charge asked, that the court erred, and that the jury was misguided in their finding by this charge.

The next portion of the charge asked and refused was, “that the consent of the federal executive must be proved by the plaintiff, in order to show title in himself from the government.” This, then, leads us into an investigation of the details of the process of procuring a title to a portion of the public domain, under the laws of Mexico, with regard to colonization.

The colonization law of Coahuila and Texas, March 24, 1825, art. 4, provides “that any foreigner, from the time that he becomes domicilated, shall be permitted to specify any vacant land; and it shall be the duty of the respective political authorities to forward the instrument that shall be drawn, to the executive for his approval, should he consider the applicant the same as natives of the country, conforming to the existing laws on the subject. [Art. 4, Laws C. and T. p. 16.]

After arrival of foreigners, they must present themselves to the ayuntamiento of the place he shall select as his place of residence; by which he shall be sworn to obey the federal and state constitutions, and to observe the religion prescribed in the former; and his name, and those of his family, shall be registered in a book to be kept for that purpose; and then, under the naturalization laws of the government, he is considered as a native. The political chief of department is the sole channel of communication between the ayuntamiento and the government. [Decree No. 13, Instituent Congress, p. 13, sec. 15.]

The political chief shall take care that no person in his department shall appropriate to himself any lands. [Decree No. 13, Instituent Congress, art. 9, p. 12.]

All future petitions on the subject of making settlements upon the twenty border leagues, accompanied by a corresponding report from the governor of the state, shall be transmitted. [Art. 7, Col. Laws C. and T. p. 16. Vide Austin's petition to the president of Mexico on June 5, 1826, for settling the reserve land on the coast, between La Baca and San Jacinto, 1 White, p. 614; the opinion of the state governor, making the corresponding report required by the 7th Art. Col. Laws C. and T. Id. 615; approbation of the president, Id. 615; representation of Austin to the governor, showing and manifesting the consent of the supreme executive of the union, 1 White, 616; contract of the governor and Austin, and Austin's commission.]

All families established in the state without having assigned them lands shall conform to the colonization law, and to what the executive of the union shall direct, with respect to those who are within the twenty border leagues of the line of the United States of the North, and ten border leagues of the coast of the Gulf of Mexico. [Art. 47, Col. Law C. and T. p. 22.]

The commissioner shall not give possession to any colonist settled, or intending to settle, within the twenty border leagues of the United States of the North, and the ten littoral leagues of the Gulf of Mexico, unless the person interested shall present him a special order from the government, wherein the approbation of the national government thereof shall be manifested. [Art. 5, Executive Instructions to Commissioners, September 4, 1827, p. 71.]

The commissioner is required to form a book in calf, wherein he shall write the titles of the lands which he distributes to the colonists; specifying their names, the boundaries, and other requisites and legal circumstances; and he shall take from said book attested copies of each possession upon paper of the second seal, which he shall deliver to the person interested, to serve him for a title. [Art. 8, Instructions, p. 71.]

Families that shall arrive comformably to the 16th article shall present themselves forthwith to the political authority of the settlement they shall have selected, who, recognizing on their part the necessary conditions...

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8 cases
  • State v. Balli, 8187; Motion No. 16405.
    • United States
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    • December 20, 1944
    ...lands at auction March 26, 1834 (Sayles', Art. 66). These decrees were examined in 1848 by the Supreme Court in the cases of Goode v. McQueen's Heirs, 3 Tex. 241; Edwards v. Davis, 3 Tex. 321, and Republic v. Thorn, 3 Tex. 499. The first two laws were directly involved. The third was discus......
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    ...de Tierras y Aguas, 262; Pereyra, Chap. 12, Book 6, Politica Indiana (1648); Sheldon v. Milmo, 90 Tex. 1, 36 S.W. 413, 419; Goode v. McQueen's Heirs, 3 Tex. 241, 254. In 1520, the King created his Council of the Indies to cope with the countless new problems of his colonies. 10 Its decrees ......
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