12 Tex. 381 | Tex. | 1854
The only question in this case is, whether a Commissioner at Nacogdoches, acting under a commission from the Executive of the State of Coahuila and Texas, had, on the 21st day of November, 1835, authority to issue titles to lands. The title of the appellant was issued on that day; and as it is unobjectionable in other respects, it must be deemed valid, provided the authority of the Commissioner still continued in force. The solution of this question depends upon the time at which the Act of the Consultation closing the Land Offices, took effect, whether immediately or only after promulgation and due notice of the adoption of the Act. The organic provision was ordained on the 13th November, 1835, and if its operation was immediate, the title of appellant is a nullity; if not, its validity depends upon the time at which the notice was or might have been received by the officer issuing the title. The point seems too clear for dispute, but, as it has been argued most zealously, ably and elaborately, it will receive such attention as can, under the pressure of other causes be allowed to its consideration.
The fourteenth Article of the Plan and Powers of the Provisional Government provides, “that all Land Commissioners, “ Empresarios, Surveyors, or persons in any wise concerned “ in the location of land, be ordered forthwith to cease their “ operations during the agitated and unsettled state of the “ country, and continue to desist from further locations until “ the Land Offices can be properly systematized,” &e. The Article further provides “ that suitable persons be appointed
It is contended by the appellant, that this Act does not contemplate an immediate cesser of the operations of the Land Offices, but that this was to depend on a future event, viz: an order.to be issued for that purpose. The phraseology is somewhat peculiar, and, when taken alone, might possibly admit of two constructions. But when we consider that this was but one of many provisions of an organic law by which in a time of revolution a government was to be organized and put into operation ; that no part of such law was submitted or intended to be submitted to the people; that the exigence of the times required the prompt adoption and immediate enforcement of this fundamental Act; and especially, that it was very important to individuals absent in the army, and to government for financial, purposes, that no further abstractions from the public domain should be permitted, and the reason for such act, viz: “the agitated and unsettled state of the country,” being as cogent at the date of the Act as it could be in the future, we must come to the conclusion that the operation of the Article was intended to be immediate, to be general and uniform, and not in the future or variant or fluctuating, dependent upon the distance of the Empresario or Commissioner from the seat of Government, and. the respective times in which it was or might have been promulgated or made known respectively to the various officers and other persons concerned in the location, survey or passing titles to lands. This interpretation would comport with and-sustain the policy and object of the law, whereas, by the ofher, it would be seriously impaired, and in a great measure defeated.
The supreme authority was expressing their will that land operations should not be continued, and whether they phrased it that they should forthwith cease or be ordered forthwith to cease was immaterial. These phrases, at least under the circumstances, must be considered as equivalent to each other. The difference between them is a matter of style and not of
But if it were admitted that these views are erroneous, and that the appellant is right in his construction, yet this would not operate any substantial benefit to him or sustain his title. The Constitution presents against it an obstacle more formidable, if possible, than that which exists in the Act of the Consultation. By the Constitution it is declared, that, “ whereas “many surveys and titles to lands have been made while most “ of the people of Texas were absent from home serving in “ the campaign against Bexar, all the surveys and locations of “lands made since the Act of the late Consultation, closing “ the Land Offices, and all titles to land made since that time, “ are and shall be null and void.” Here is an emphatic declaration, annulling all locations and surveys made since the Act of the Consultation, and all titles to lands made since that time. What time is here spoken of? That of the Act of the Consultation, not the time when it went into operation, but the time of Act itself.
It is immaterial when it legally went into operation, whether immediately or on notice to the officer, or whether it never went into operation as against the acts of those who had no notice—the acts of all, from the time of the law, are equally and alike made null and void.
There can be no doubt of the power of the Convention to destroy even valid titles, and in this view an inquiry into the true meaning of the Act of the Consultation becomes immaterial. The only point to be ascertained is the date of the Act closing the Land Offices. That being fixed, the Constitution annihilates and extinguishes all subsequent operations in locating, surveying or making titles to the public lands.
The Commissioner at that place, who issued this title, did not, as appears from the evidence, receive a formal notification of the Act until the 19th December, 1835. History informs us that this was but a few days after the close of the campaign against Bexar, leaving barely time for persons from Nacogdoches to return to their homes. So that the office would be, under the Constitution, open only when the absent soldier could derive no advantage from its being open, but closed immediately on his return, thus depriving him not only of the chance of getting any of the best lands, (for these would be taken by those who remained at home during the months of his absence,) but even of getting any of the refused lands, rejected by those who had every chance of culling and selecting the best.
The relief to those serving, intended by the Constitution, would, under this construction, be a mere delusion, at least to those from the eastern frontier. The inequality of its operation would be one of its most odious features. To the soldier of middle Texas, it would give the full relief imported by its terms ; while to those of the East it would give comparatively none. Land operations in the former would be suspended, but would continue in the latter long enough to abstract the best portions of the public domain, but not long enough to
Under the construction contended for by appellant, the condition of a Surveyor would be extremely critical and dangerous. He must swear that his survey was prior to the closing of the Land .Offices by the Consultation, or subsequent to its being opened under the Act of 1837. ■ Now, if there be a fixed time for the close of the Land Offices, he can swear to the truth and avoid the crime of perjury; if not, he does not know certainly when the Office was closed, and is consequently in great danger of swearing falsely. Surveyors have always, however, taken their oath, on the supposition that the
There are several points which, in justice to the elaborate arguments that have been submitted, might, with great propriety, be discussed. But most of the authorities to which reference has been made, (even the journals of the General Council,) are inaccessible at this branch of the Court; and under the circumstances, especially in relation to a point about which there neither is nor ever has in the opinion of this Court been any doubt, there would be very little advantage in prolonging the investigation, or endeavoring to make that clear which is intrinsically beyond dispute.
The rule of Spanish jurisprudence, that a law has no force until promulgation, is admitted; as a general principle it is admirable, not less for the wisdom of its conception, than it is for the beneficence of its operation. But it is believed never to have been of any practical force in Texas, since the ineipiency of her separate legislation. No modes of publication similar or equivalent to those in use under Spanish and Mexican rule have ever been adopted. Under the former governments, laws, orders and decrees were immediately communicated from the highest, through every grade successively to the lowest authorities, and prompt measures, and those presumed to be effectual, were enforced, by proclamation, by posting up at public places, by beat of drum, &c., to communicate information of the laws to the people. No such measures have ever been used by Texas in her separate capacity. Laws are published in the newspapers and pamphlets, and no efforts are made by the government to diffuse them immediately through the community. The general principle of American law, that laws are in force from their date, (1 Kent, 454,) was always recognized in Texas, until it was modified by statute
The counsel for the appellee contends, and with much force, -that all organic laws go into operation immediately, (if not expressly or by implication otherwise provided,) and he cites instances of treaties between States (acknowledging the general rule in relation to the necessity of promulgation) which Were in force from date of their signature long before their ratification ; (United States v. Reynes, 9 How. 149 ; Davis v. The Police Jury of Concordia, Id. 280 ;) and that under the treaty between Spain and France, ceding Louisiana to the latter, all grants made by Spanish officers after the the date of the treaty, though- long before they had any knowledge of its existence, were null and void.
Judgment affirmed.