Thomson v. Baker

• Decision Date: 23 November 1896
• Citation: 38 S.W. 21
• Parties: THOMSON, Special Commissioner, v. BAKER, Land Commissioner.
• Court: Texas Supreme Court

38 S.W. 21

THOMSON, Special Commissioner, v. BAKER, Land Commissioner.

Supreme Court of Texas.

November 23, 1896.

Petition by R. M. Thomson, special commissioner, for a writ of mandamus to A. J. Baker, commissioner of the general land office. Denied.

Rector, Thomson & Rector, for petitioner. M. M. Crane, Atty. Gen., and H. P. Brown, Asst. Atty. Gen., for respondent.

GAINES, C. J.

This is an original proceeding in this court for a writ of mandamus to compel the commissioner of the general land office to issue certificate for 872 sections of land claimed to have been earned by a certain railroad company, known, successively, as the Tyler Tap Railroad Company, the Texas & St. Louis Railroad Company, and the Texas & St. Louis Railroad Company of Texas, under chapter 12 of title 84 of the Revised Statutes of 1879. It is alleged in the petition that, before the repeal of the law, the company had constructed 54 miles and 2,640 feet of railroad, and that on April 10, 1882, the then governor, after an inspection and report by an engineer appointed by him, certified the fact of the completion of the road, and that the company was entitled to receive 872 sections of land therefor. It is also alleged that application was made to W. C. Walsh, at that time commissioner of the general land office, for the certificates; but that, before they could be prepared and issued, the legislature "passed a general law forbidding the further issuance of land certificates to railroad companies for the building of railroads in Texas"; and that thereupon the commissioner refused to issue the same. It is further averred that each successive commissioner had likewise refused to execute and deliver the certificates. The company having been placed in the hands of a receiver, the petitioner was appointed as alleged, "special master commissioner to apply for and demand of the proper state authorities to deliver to him the said 872 land certificates."

The attorney general who appears for the respondent has filed general and special demurrers to the plaintiff's petition, upon the following grounds, among others: (1) That the legislature has not sufficiently "specified" the cases in which this court is authorized to grant the writ, within the meaning of that term as employed in amended section 3 of article 5 of the constitution, and that, therefore, this court has no jurisdiction of the case; and (2) that the petition does not show a case for the grant of the writ.

The first question is settled against the respondent by the former decisions of this court. Pickle v. McCall, 86 Tex. 212, 24 S. W. 265; McKenzie v. Baker, 88 Tex. 669, 32 S. W. 1038; Depoyster v. Baker (Tex. Sup.) 34 S. W. 106.

But we are of opinion that the facts stated in the petition are not sufficient to warrant the issue of the writ of mandamus against the respondent. The determination of the question depends, as we think, upon a proper construction of the act of the legislature of April 22, 1882, referred to in the petition, entitled "An act to repeal all laws granting lands or land certificates to any person, firm, corporation or company for the construction of railroads, canals and ditches." The act reads as follows:

"Section 1. Be it enacted by the legislature of the state of Texas, that all laws or parts of laws now in force granting lands or land certificates to any person, firm, corporation or company for the construction of railroads, canals and ditches, be and the same are hereby repealed.

"Sec. 2. The fact that the public domain subject to location by the owners of these certificates has been exhausted creates an imperative public necessity and an emergency requiring the constitutional rule that bills be read on three several days in each house be suspended, and the same is therefore suspended; and that this act take effect and be in force from and after its passage, and it is so enacted."

It is not quite clear to our minds whether the legislature intended merely to repeal all laws in so far as they authorized railroad companies to earn lands in the future, or whether it was also intended to repeal all laws upon the subject in toto, and thus to take from the commissioner of the general land office all authority to issue certificates already earned under the provisions of the law. But the article of the Revised Statutes in force at the time the construction was completed for which the certificates are claimed, and which conferred the right to earn the lands, simply provided that the railroad companies of the state should be entitled to acquire lands by the construction of their roads. The provision reads as follows:

"Art. 4267. Any railroad corporation heretofore chartered, or which may be hereafter organized under the general laws, shall, upon the completion of a section of ten miles or more of its road, be entitled to receive, and there is hereby granted to every such railroad sixteen sections of land for every mile of its road so completed and put in good running order."

By the succeeding articles it was provided that upon an inspection, and a report by an engineer, appointed by the governor, of the fact that the section of road had been completed, and the governor's certificate to that effect, the commissioner of the general land office should issue the certificates for the lands so earned under the law.

We think, therefore, if the purpose had been merely to repeal the law in so far as it gave the right to earn lands in future, that that intention would have been fully expressed by repealing all laws which provided for the grant of lands; and that by the language "all laws * * * granting lands or land certificates to any person, firm, corporation, or company for the construction of railroads * * * be and the same are hereby repealed," found in the act in question, the legislature intended, not only to repeal the law which authorized railroad companies to acquire lands in future, but also to repeal so much of it as authorized the commissioner to issue certificates for lands already earned under the law. A different construction would render the mention of certificates nugatory. The allegation already quoted from the petition, that "the legislature passed a general law forbidding the further issuance of land certificates to railroad companies," etc., seems to indicate that the petitioner places the same construction upon the act. That this was the intention of the legislature is further evidenced, we think, by the emergency clause. The reason for giving the act immediate effect is that "the public domain subject to location by the owners of these certificates" had been exhausted. This tends to show that the purpose was not only to forbid future acquisitions, but also to prohibit the issue of all certificates.

But, if it was the purpose of the repealing act to take from the commissioner the power to issue certificates for land already earned under previous laws, the question suggests itself whether the legislature exceeded its authority in attempting to withdraw that...