3 Tex. 241 | Tex. | 1848
delivered the opinion of the court;-
having been of counsel below.
This was an action by the heirs of David McQueen, to try titles for a league of land alleged to have been granted to their
The defense set up was, not guilty of the trespass; 2d, title in himself; 3d, that the plaintiffs were barred from their action by not having brought their suit against the republic, under the border league statute for quieting titles to lands within the border leagues, within the time prescribed by that statute.
It appears, from the statement of the facts, that the land sued for lies within twenty border leagues of the old boundary line between Mexico and the United States of the ISForth.
It was in proof that David McQueen lived on the land, and cultivated some six or eight acres in corn, from 1828 until 1831;. that he then left for the United States of the Uorth, but, on leaving, declared his intention of returning, but never returned,, and has been generally reported to be dead; that his wife remained on the land until 1833, when she left.
It is not plainly shown by the evidence where she went, or whether she abandoned the country at that time; but it is plainly inferable from the evidence that she went to the United States; that she died about four years before the trial in the-court below, having never returned.
The defendant in the court below, who is the plaintiff in-error in this court, had been in possession under a certificate-of a headright granted to him in 1838, recommended by the-local and traveling board as genuine, and located and surveyed by the county surveyor of Jasper county.
On the trial,^as appears by the bill of exceptions, the defendant’s counsel asked the judge to charge the jury, that, by virtue of the colonization law of the general congress of the-republic of Mexico, of the ISth of August, 1824, the right of' domain within the twenty border leagues of the United States line was reserved to the republic of Mexico; and that the public domain within the limits thereof could not be granted, except under the laws passed for the disposition of that domain;, and that, by the colonization laws of Coahuila and Texas, passed under the authority of the constitution of the general government of Mexico, the state of Ooahuila and Texas had no-
This charge was refused by the judge. There was a verdict and judgment for the plaintiffs; to reverse which the defendant has brought a writ of error to this court.
The whole ease rests mainly on the validity of the grant on which the suit was brought. Let ns, then, inquire if the grant •conveyed a legal title to the grantee. The first objection is, that it was void for want of any authority of law in the grantor to grant land within the twenty border leagues of the old boundary between the United States of the North and Mexico.
In the investigation of the powers of the executive of the state of Ooahuila and Texas to grant lands, it will be necessary to review the acts of the federal and state governments in relation to their public lands. It is not important, in the case under consideration, to inquire into the mode of obtaining title to a part of the public domain, prior to the organization •of the Mexican republic. The first- colonization law was promulgated during the short reign of the Emperor Augustin, and it bears date the 4th of January, 1823. We are not aware of any contract having been made under this law, excepting Austin’s first contract, dated 18th of February, 1823.
In the imperial colonization law, no limitation or inhibition is imposed against border grants. Very soon after this the emperor was overthrown, and the constituent congress of Mexico was organized. By this congress, Austin’s contract with the emperor’s government was ratified, in consideration, it is said in the act of ratification, of its having been in conformity with the colonization law passed by the Junta Nacional Instituente, at the head of which, it will be remembered, was the emperor; thus recognizing the laws passed by the previous government. The constituent congress, however, suspended the colonization law until there could be a new resolution on the subject. The decree of the supreme executive power ratifying Austin’s contract was issued on the 14th of April, 1823. By decree 72 of the 18th of August, 1824, the general sovereign
We are hardly left to conjecture as to the policy or motive that dictated this inhibition. The federal party, having gained the-ascendency and overthrown centralism, were laying down the programme of a federal republic composed of the several •different states, and each of these states to be independent of the federal government so far as related to their internal polity: the federál government to be charged with peace or war, and ■everything connected with foreign relations and intercourse with other nations. It is natural that some fears and doubts might exist, whether the state sovereignties would be strong enough to enforce good order if their settlements should so approach as to mingle in neighborhood the citizens of two distinct nations. It was feared that collisions would arise to endanger the peace of the nation, arising from a difference in interest, habits, manners, language and religion. The wisdom ■of this policy, if it had been rigidly enforced, has been verified by the history of the country. At any rate, it cannot be doubted that it was designed as a measure of state policy, which the government had the right to adopt. In accordance with this ■act of the constituent congress, the congress of the state of Coahuila and Texas, by decree No. 16 of the 24th of March, 1825, passed a state colonization law, in the caption of which.
The same inhibition is found in the instructions given by the executive to the commissioners. The same will be found, also, in the colonization law of Tamaulipas [see article 11, Gol. Law Tam.], with the modification that no foreigners shall be settled.
It appears that from the promulgation of the law 72 of the constituent congress, no grant has been made without a strict compliance with the requisitions of that act. Of course Austin’s first colony is an exception; because his contract, being-first made with the emperor’s government, was afterwards confirmed by the executive of the general government without any modification. It had all the requisites afterwards exacted by the new colonization law; therefore the inhibition cannot, affect the grants of those who may have received them, although-the land may’be within the ten littoral leagues of the gulf shore.. But when he proposed to colonize other families on the littoral
It is not necessary here to inquire whether the restriction imposed on the granting power of the state by the general government was the exercise of a rightful authority or not, because at the time the grant, in the case before us, was made, it was equally repugnant to the law of the state and the general government to make it without the approbation of the supreme executive of the republic. [See Ool: Laws above cited.]
It may, perhaps, be thought that, on the authority of the supreme court of the United States, in the cases of Arredondo, Clark, Mitchell and Perchman, this court ought to presume that the approbation of the federal executive had been obtained. The opinions of the late Chief Justice Marshall, and the decisions of the court over which he presided, will, at all times, command great respect; and, in cases directly in point, will be •generally received as conclusive. But on an examination of those cases, in which the doctrine of presumption of authority has been allowed to exert so much influence, a plain and manifest distinction will be observed between them and the case now before us. The rule of presumption will be found in those cases to have forced itself upon the court, as, from the peculiar circumstances, it was the best evidence that could be procured. To have rejected the rule would have been destructive of rights, supported by evidence, that usage had established as sufficient. The grants in the Florida and Louisiana cases
Such being the source from which all grants in Florida for the public lands emanated, it is obvious that the courts were bound to presume that the person who was representing his sovereign’s will and pleasure was not transcending the authority delegated to him. The sovereign was bound by no particular form or ceremony in the delegation of the authority, and no one had the right to question it. Presumption in such cases was the best evidence of the fact of authority that could in general be obtained. You could not say to the agent, you are acting on a different rule than heretofore, because the instructions of his sovereign may have been modified; and he may well say,
There can be no question but that many things ought to be presumed in favor of a grant after the power to make it is established in the grantor; this being the most essential, its subsequent conformity to law will, in many cases, be presumed to be correct, without any other proof than the grant. At the date of the grant to the ancestor of the plaintiffs in the court below, the congress had never assumed to act on the domain within the border leagues, in any other way than in strict conformity with the colonization law passed by the constituent congress of the republic. ' Had the congress of the state passed a law for the settlement of this land on the border, and authorized its executive to have granted the samé to new settlers, it might have been well questioned whether the judicial tribunals of the state could have adjudicated such act to be unconstitutional and'void, on the ground of its repugnancy to the federal constitution. It would have presented a case of conflict between the political authority of the state and federal governments; and it might have been insisted that it would have to be settled between them, and was beyond the control of the judicial tribunals to say that the state legislature had transcended its powers.
The question may seem strange and preposterous to those who have been accustomed to see the uniform and harmonious action of the different departments of the government, under the constitution of the Hnited States and the several states composing the union; and the proposition, that the judiciary had not the authority to declare an act of the legislature void for its repugnance to the constitution, would seem to involve a most manifest absurdity.
In the 97th article of the state constitution, in the enumeration of the powers of congress will be found the following: “To enact, interpret, amend or repeal the laws relative to the administration and internal government of the state, in all its branches;” and, in the article 172, it is directed that “the tribunals and courts of justice, being authorized solely for ■applying the law, shall never interpret the same, nor suspend their execution.” •
These extracts would seem to be conclusive whenever the power of the legislature to pass the act was the question.
This peculiarity in the federal constitution of Mexico, and the constitution of the state of Coahuila and Texas, has been long known, and is no new discovery of modern research, drawn from the obscurity in which a different language from our own had allowed it to repose. Mear ten years ago, in a ■conversation on the subject of the constitution of Mexico, in which a Mexican gentleman, who enjoys considerable reputation among his countrymen as a jurist, participated, he expressed much surprise at what he thought an anomoly in the constitution of Texas, that it was the faculty of the judiciary to construe, and decide on, the constitutionality of acts ■of congress. He was opposed to it in principle, and believed that the constitution of .Mexico had wisely guarded •against it.
I have no doubt that, in the courts of Mexico, the judicial tribunals would not possess authority to say that any act of ■the legislature was unconstitutional and void.
There may, possibly, an. exception arise, in case of an act retrospective in its effect. In such cases we may, perhaps, he authorized to sustain acts of parties, and rights acquired,, before the passage of the act. Because it might well be supposed that congress did not intend that such rights should be affected by the act; and it was the usual practice with the congress, when an act was repealed by them, on the ground of its want of conformity to the constitution, to make valid, acts done under it before its repeal. Let us, then, inquire if any such act of the legislature does exist. We have before said;, that, up to the date of the deed in the case before us, there had-
A law of the congress of Ooahuila and Texas was passed on the 26th of March, 1834, p. 251, in which article 32 is as follows, that is to say: “To the inhabitants of the frontier of bTaeogdoches, and those residing east of Austin’s colonies, titles shall be issued to the lands they occupy, according to article 16 of the colonization law of the 24th of March, 1825, and the resolutions of the general government of April and August, 1828; and the executive shall appoint one or two commissioners for that object, who, without delay, shall execute the same at the expense of the persons interested; and the titles heretofore legally issued are hereby confirmed.” I have had some difficulty in arriving at a satisfactory construction of this law. I am not prepared to say that the congress meant by it, to extend titles to all who were settled on vacant land, at that time, within the border leagues; or, that only those who were not within the reserved limits should have titles. If such was the object, why any reference to the resolutions of the general government? These resolutions are not before us. If they were, perhaps some light might thereby be thrown on this seeming obscurity. There is, however, no necessity for deciding on titles issued under this law, at present, as the title we have under consideration was issued long before the passage of the law of 1834. If this law can be of any assistance to the deed of the McQueens, it will be derived from the last part of it, “ and the titles heretofore legally issued are hereby confirmed.” What class of titles is referred to in this part of the law? Is it to old titles, derived from the royal government of Spain ? or does it refer to titles to settlers under contracts with em-pressarios? I would incline to believe that it was to these last, who may have received titles supposed to be legal, and, perhaps, were so; and the act of confirmation was merely to give them better assurance. It could not mean a title manifestly contrary to law, when it was issued like the one sued on in this case. The first part of the law embraces a class known by the history
It is very clear, that whatever other obscurities there may be in the law referred to, that its benefits were designed for those only who, at the time, occupied the lands for which they were to receive titles. The statement of facts shows that the land embraced in the grant to David McQueen had been abandoned, first by McQueen in 1831, with a declaration that he intended to return; but that he never did return, and that his family ■abandoned in 1833, and that they were in Mississippi or Alabama. The time of McQueen’s death is not shown, but it is fairly to be inferred that it was not until some time after his leaving Texas. His widow, who left for the United States in 1833, died about four years before the suit was tried. It must, therefore, have occurred about 1843, as the suit was tried in 1847.
The archives of the land office show that title was granted to the settlers on the frontier of Macogdoches, under the law of 1834. Such titles, when granted to occupants, could scarcely be questioned at this time, whether the resolutions referred to in the law approved of them or not, for the reasons we have shown above. But the grant, in the case before us, was not issued under that law, nor could it have.been ratified by it, because the statement of facts shows that the whole family had ceased to occupy the land at that date. And even if the grant had been valid when issued, it became absolutely void by a total abandonment of the country. [See Heirs of Holliman vs. Peebles, 1 vol. Texas Reps.]
Inasmuch, however, as there was no motion for a new trial, because the verdict was contrary to evidence, we cannot notice the error arising from the fact of the deed going to the jury as ■evidence of title. But the court erred in refusing to charge •.the jury that, to make the grant good and valid, it should have