Full opinion text
Evans, P. J. This suit was instituted by the Houston and Great ¡Northern Railroad Company, in the ¡District Court of Travis county, against the Commissioner of the Land Office, to compel him to issue to the company certificates for sixteen sections of land per mile, for twenty-five miles of constructed road. The petition alleges that the Houston and Great ¡Northern Railroad Company was incorporated by an Act of the Legislature, passed on the 22d day of October, 1866, and a copy of the charter or act of incorporation is made a part of the petition. The petition further alleges, and the act of incorporation shows, that the 16th Section of the act of incorporation declares-, that “ this company shall be entitled to receive such donations; “ of land as are provided for the encouragement of internal im- “ provements by any general laws of this State, upon the terms. “ and conditions in such laws prescribed: provided, that the- “ State donation of lands now provided for by any law shall “ not apply to such portions of the road of said company as. “ shall be run parallel, within five miles, of any road now ini “ running order.” The petition alleges that the organization of the company under the act of incorporation was completed on the 13‘th day of May, 1867; that notwithstanding the unsettled condition of the country, the company expended large sums of money in the work of surveying, locating, and equipping its said road, during the year 1867, and until the time of filing this petition; that the company commenced the work of construction in March, 1870, and had constructed and put in running order a section of twenty-seven miles of road on the 8th day of September, 1871 ; and that no portion of said section of its road runs parallel, within five miles, of any other road. The petition contains appropriate allegations of a compliance on the part of the company with the requirements of the general law relating to said roads; and alleges that upon the completion of the said section of twenty-seven miles of road, the company made a report of the fact to the Governor, on the 16t,h day of September, 1871, and that the Governor appointed an engineer to examine said section of road, and report as required by statute; that the engineer examined the constructed road, and reported under oath to the Governor that said section of twenty-seven miles of road was constructed, completed, and put in running order in all respects as required by the company’s charter and the laws of the State regulating said road; and that the report of the engineer was duly delivered to the defendant, the Commissioner of the Land Office. The prayer of the petition is for a mandamus to the Commissioner, commanding him to issue to the said company four hundred and thirty-two certificates, for six hundred and forty acres of land each. To this petition the Attorney-General answered as attorney for the Commissioner of the Land Office, denying the sufficiency in law of the facts set forth in the petition to entitle the said Railroad Company to the relief prayed for. The principal points of the demurrer are the following: First. Because it does not appear from said petition that defendant can he compelled by mandamus to do any act or acts involving an exercise of official discretion on his part. Second. Because it does not appear from said petition that .the plaintiff has been incorporated by a Legislature of said State, organized and acting under a State Constitution accepted by the Congress of the United States of America, or by a Legislature competent to make a donation of a part of the public domain of the State of Texas to a private corporation; but, on the contrary, it does appear from said petition that the plaintiff was only incorporated by the Legislature of a provisional government of said State, which had no power to create a private corporation, and to make it a grant of land. Third. Because by Article 9 of the Constitution of said State, accepted by said Congress, and more particularly by Section 6 thereof, and by Article 10 of said Constitution, and more particularly by Section 7 thereof, it appears that the plaintiff has no cause of action. Fourth. Because the school rights and privileges, secured by the Constitution of said State, last aforesaid, are guaranteed by an Act of said Congress, entitled, “ An Act to admit the State “ of Texas to representation in the Congress of the United “ States,” approved March 30th, 1871. Fifth. Because it does not appear from said petition that the twenty-seven miles of railroad, alleged to be completed, were completed, or were even commenced, prior to the adoption and acceptance of the present State Constitution. Sixth. Because the act of incorporation, under and by virtue of which the plaintiff claims to be incorporated, is not a contract ; said State not having under it, or by any law, the right to enforce a specific performance thereof, or to recover damages in case of a non-performance. Seventh. Because no State Government of Texas ever had, or now has, the constitutional authority to make a gift to a private corporation. From this statement of the pleadings the questions presented by the record may be distinctly seen. The district judge sustained the demurrer; and the bill of exceptions shows that he did so because he was of opinion that the act of incorporation of the 22d of October, 1866, and the organization of the railroad company in accordance with its terms, did not constitute a contract between the State and the company which entitled the company to lands for the construction of its road. The case involves questions of transcendent interest, and the court has been unwilling to determine them without the most deliberate consideration—intensified by the fact that these questions depend, for their determination, not so much upon the authority of adjudicated cases as upon the just application of general principles of jurisprudence to the extraordinary condition in which the State and the people have been placed since the passage of the Ordinance of Secession in 1861. We will consider these questions in what appears to us to be their proper order. First. Does the petition show that the Houston and Great ¡Northern Railroad Company has a right to sixteen sections of land out of the public domain of the State, for each mile of twenty-seven miles of constructed railway ? The Act of the 30th of January, 1854, entitled “An Act to “ encourage the construction of railroads in Texas by donations “ of land,” provides by its first section that “ Any railroad com- “ pany chartered by the Legislature of this State, heretofore or “ hereafter, constructing within the limits of Texas a section of “ twenty-five or more miles of railroad, shall be entitled to re- “ ceive from the State a grant of sixteen sections of land for “ every mile of road so constructed, and put in running order.” We can entertain no doubt of the power of the Legislature of 1854 to make the disposition of the public land contemplated by the Act of 30th January of that year. The importance of developing the natural resources of the State pressed cogently upon the consideration of the men of that day—men who had carried the State successfully through the period of its existence as a republic, into the American Union. Population and wealth were needed, and to secure these ends, a grand system of internal improvements was devised. The great lines of railway from the Gulf coast to Red River, and from the Eastern border to El Paso, and other important interior lines, were already projected. The subject was much discussed, and every mind turned to the public domain as the principal source from which aid to these enterprises was to come. It was never intimated at that day that the State lacked the power to make a donation out of the public lands, to aid in the construction of railroads; and the act of January 30th, 1854, and the subsequent act of 13th August, 1856, entitled “ An Act to provide for the investment of the public school “ fund in the bonds of the railroad companies,” received the approval of men as competent to deal with such questions as any who have served Texas at any period of her history. We cannot, therefore, give our assent to the proposition of the Attorney-General, that “ no State government ever had the con- “ stitutional authority to make a gift to a private corporation.” A careful examination of the act of January 30th, 1854, however, convinces ns that it never was intended to benefit the companies already chartered at the time of its passage, and not, as some have supposed, to extend the benefits indiscriminately to all companies that might be chartered during the time the act continued to be in force. This will appear from the language used in the 12th Section of the act, where it is said, that “ no person or company shall receive any donation or benefit “ under the provisions of this act, unless they shall construct “ and complete at least twenty-five miles of the road contem- “ plated by their charter, within two years after the passage “ of this act.” But it was unquestionably within the competency of the Legislature, organized and acting under the authority, of the Constitution of 1845, by a special provision, to extend the benefits of this act to any railroad company chartered at any time while the act itself remained in force. But was it competent for the Legislature which assembled in the City of Austin on the 6th day of August, 1866, to pass the act incorporating the Houston and Great Northern Railroad Company, and to extend the benefits of the act of 30th January, 1854, to the company so incorporated? The answer involves the determination of another and preliminary question ; and that question is: Was the act of January 30th, 1854, in force on the 22d day of October, 1866, or had it expired by its own limitation ? The last clause of the 12th Section of this act provides that “ this act shall continue “ in force for the term of ten years, from the time it shall take “ effect, and no longer.” The act took effect on the 16th day of April, 1854, and would have expired by its own limitation on the 16th day of April, 1864, unless this period of limitation was in fact either suspended in its operations by war, or the time extended by intermediate legislation. We are of opinion that both the legislation of 1862 and the state of war had that effect. On the 11th day of January, 1862, the so-called Legislature of Texas passed an act entitled, “ An Act for the relief “ of Railroad Companies,” which prescribed that “ the failure “ of any chartered railroad company in this State to complete “ any section, or fraction of a section, of its road, as required “ by the existing laws, shall not operate as a forfeiture of its “ charter, or of the lands to which said company would be en- “ titled under the provision of an act entitled, ‘ An Act to en- “ ‘ courage the construction of railroads in Texas, by donation “ c of lands,’ approved January 30th, 1854, and the' several “ acts supplementary thereto; provided said company shall “ complete such section, or fraction of a section, as would “ entitle it to a donation of lands under existing laws, within “ two years after the close of the present war between the “ Confederate States and the United States of America.” ' On the same day the Legislature passed another act entitled, ££SAn Act for the relief of companies incorporated “ for purposes of internal improvement, by allowing them “ further time for performance, on account of the pending “ war.” This act provided, that the time of the continuance of the present war between the Confederate States and the United States of America, “ shall not be computed against any internal <£ improvement company in reckoning the period allowed them “ in their charters, by any law, general or special, for the com- “ pletion of any work contracted by them to do,” etc. It is not our purpose to enter at length into the question of the power of the Legislature which sat in Texas from the 18th day of March, 1861, until the 6th day of August, 1866, to make laws binding upon the people. Four years and upwards of this time was a period of actual revolution. The government which held sway during those years was not a State government in the sense of the Constitution of the United States. It did not acknowledge that instrument as any part of the supreme law of the land. The several officers of the respective departments of that government bound their consciences by an oath to support a national authority which confronted the government of the United States on the field of actual battle. But this government, -nevertheless, did actually usurp and wield the political sovereignty of the State of Texas. Its Legislature enacted laws which the people of Texas were constrained by the demands of social order, and out of considerations for the well-being of society, to respect. When the armed resistance of those who had thus usurped power in Texas, to the government of the United States, ceased, and the revolutionary government reached its end by dissolution, the people of Texas attempted, under the protection of the military arm of the United States, to reorganize and reconstruct the State government, in accordance with the Constitution of 1845, as it was their clear, constitutional right to do. The people of Texas, those who had not yielded allegiance to a foreign and hostile power, nor forfeited their rights of citizenship by acts of war, never for one moment of time ceased to be citizens of the United States, nor had their State ever for one moment ceased to be one of the States of the great American Union; and all their rights, which war had borne down and rendered dormant, revived in all their fullness and completeness, upon the return of peace. The national arm came not to destroy or impair, but to defend and protect those rights. The problem presented to Texas when the revolutionary government was stricken down, was, how the people could restore lawful government, and regain the exercise of the political power which the revolutionists had usurped. The appointment by the President of the United States of a Provisional Governor—the election of delegates to a State Convention—the assembling of that Convention in this city on the 7th of February, 1866—the revision of the Constitution— the election of State officers in June—the assembling of the Legislature on 6th August—the organization of the two Houses—the formal inauguration of the Governor elect—these were but successive incidents in the attempt at a reorganization of a State government. This attempt failed, not because of any lack of authority in the people of Texas to restore government, nor yet, as some have supposed, because of any interference by the Congress of the United States ; for the interference of Congress was the result, not‘the cause, of the failure. The controlling participation in the movement of those who had renounced their national citizenship, and thereby placed themselves under political disabilities, was the sole cause of the failure; and when the Congress of the United States did interfere in the matter of restoring a State government in Texas, it was in aid of the second attempt, by the people not disqualified, to inaugúrate a civil government. A government, however, was instituted by the Convention of 1866, and its Legislature held a session in August of that year, and passed many laws, both general and special. This government the Congress of the United States declared to be provisional, and to be wanting in the attribute of legitimacy— meaning thereby that it was brought into existence by those who had not the capacity to exercise the powers of political sovereignty. But Congress never denied that this provisional government had the power to legislate, subject to the Constitution of the United States, and the paramount authority of Congress. How, to return to the point we were just considering, the Legislature of 1866 found that the Convention had declared, in an act entitled “ An ordinance making valid the laws and acts “ of the officers therein mentioned, and for other purposes,” that “ all laws and parts of laws enacted by the Legislature in this “ State since the 1st day of February, 1861, not in conflict with “ the Constitution and Laws of the United States, nor with the “ Constitution of this State as it existed from the 1st day of “ February, 1861, and not in conflict with the Provisional Gov- “ ernor’s proclamation opening the courts, and authorizing the “ institution of suits, are declared to be in full force as laws of “ this State,” etc. This ordinance ivas a rule of action to the Legislature, and in obedience to it that Legislature was bound to treat the acts of the 11th of January, 1862, as in full force as a law of the State. But we hold that these acts, having been passed in due form by a body of men acting and recognized as a- Legislature, and exercising authority as such over the people, are to be respected as rules securing rights to parties, until annulled by a superior and competent authority. But we said that in our opinion both the legislation of 1862 and the condition of the country prevented the expiration of the act of January 30th, 1854, at the end of a term of ten years from the time it took effect. The act of 1854 contained a pledge of the public faith to railroad companies then possessing charters, that they should receive certain benefits for the constructing of the railways contemplated by their charters. Companies had gone to work in the just expectation that they would reap these benefits. This law and the law supplementary to it had all the sanctity of a contract between the State and these companies. JTow it is a familiar principle of the law of contracts that if one party is prevented from fully performing his contract by the act of the other party, the party in fault cannot be allowed to take advantage of his own wrong, and screen himself from payment for what has been done under the contract. In the matter under consideration, the same principle finds application. The State of Texas inaugurated a condition of war which rendered it physically impossible for the railroad companies which were at work in Texas at the time of secession, to construct the roads contemplated by their charters. The State ought not, upon principle, to be allowed to take advantage of her own wrong. Rights had grown up under the law of 1854. It could not, then, expire by its own limitation, during a state of war which made it impossible for the companies to secure its benefits. We are brought, then, to the conclusion that the act of 30th of January, 1854, was still in force on the 22d day of October, 1866, and that the Legislature of 1866, although provisional, and wanting in the attribute of strict legality, did possess the power to pass the act incorporating the Houston and Great Northern Railroad Company, and to secure to that company the benefits of the act of the 30th of January, 1854; and it seems to us to be very clear, from the terms of the act of incorporation, and of the act of 13th of November, 1866, that this is what the Legislature meant to do. But while the power of the Legislature of 1866 to pass these acts is admitted, it is not without qualification. The acts of that Legislature were all subject to reconsideration by the people, and to be accepted or rejected by them. .When the people, therefore, exercised the right of final judgment upon this subject, as they did in the framing and ratification of the present Constitution, it was competent for them to approve and accept, or to condemn and reject, the acts of the Legislature of 1866, or any part of them. Let it be granted that rights may have grown up under the acts of the Legislatures which sat during the period of the rebellion, which ought in equity and good conscience to be respected, it would yet be going too far to hold that when rebellion has been overcome, and a people enter upon the duty of restoring government, the acts of those who had pulled down government should be an insuperable obstacle to its restoration. This was the view taken by the Congress of the United States. Congress claimed the constitutional authority to rescue the State government in Texas from those who had placed themselves in power in 1866, to the end that the citizens of the State might have an opportunity to exercise a deliberate, final judgment upon these subjects, in the organization of a State government in harmony with the national Constitution and laws, and under which all citizens might enjoy their political and personal rights. We are of the opinion, therefore, that when the people of Texas undertook a second time, in 1868, to establish a republican State government, it was competent for them, and for those to whom the duty was delegated, to deal as to them seemed best with all the legislation subsequent to the Act of Secession. It was the case of a people coming again into the possession and exercise of political power, of which they had been wrongfully deprived. If they thought proper, upon considerations of justice and expediency, to adopt any part of the work done by their self-constituted agents during a period of revolution and usurpation, they might do so; if, on the other hand, they thought proper to reject and repudiate all the acts of such pretended agents, they had the power so to do. After much consideration of this subject, the rule expressed in the 33d Section of the general provisions of the Constitution was agreed upon, as a compromise of conflicting views. The legislation of 1866 was declared to be provisional only; and it was said, “ its acts are to be respected only so far as they were “ not in violation of the Constitution and laws of the United “ States, or were not intended to reward those who participated “ in the late rebellion, or to discriminate between citizens on ac- “ count of race or color, or to operate prejudicially to any class “ of citizens.” Now, whether an act falls within the denunciation of the 33d Section of Article 12 of the present Constitution or not, may be a question of law merely, or it may be a mixed question of law and fact. This court cannot judicially know that the act incorporating the Houston & Great Northern Railroad Company, or the act of 13th of November, 1866, falls within the denunciation of the Constitution. But the act of the 13th of November, 1866, did not unconditionally extend the operation of the law of 1854. The language of the act is, that “ the grant of sixteen sections of land to rail- “ road companies heretofore or hereafter constructing railroads in “ Texas shall he extended, under the same restrictions and lim- “ itations heretofore provided by law, for ten years after the “ passage of this act.” What were the limitations and restrictions provided by the law ? They are to be found in the 12th Section of the act of January 30th, 1854. Amongst the restrictions are the following: “No person or company shall re- “ ceive any donation or benefit under this act, unless they shall “ construct and complete at least twenty-five miles of the road “ contemplated by their charter, within two years after the pas- “ sage of this act; and such donations shall be discontinued in “ every case where the company or companies shall not actually “ construct and complete at least twenty-five miles of the road “ contemplated by their charter, each year after the construction “ of said first mentioned twenty-five miles of road.” Roads not having their terminus on the Gulf coast, the bays thereof, or on Buffalo Bayou, were exempted from the above condition. The Houston and Great Northern Railroad has a terminus on Buffalo Bayou, and we cannot agree with the counsel of the appellant when they assume that the company would be entitled to lands for twenty-five miles of road constructed at any time within the ten years from the passage of the act of November 13th, 1866. We think the spirit of the act of 1854 would require the company to build twenty-five miles of road within two years after the act of incorporation of October 22d, 1866, and twenty-five miles of road each year thereafter, in order to receive the benefits of the act. The petition alleges that the company commenced the work of construction in March, 1870, and completed twenty-seven miles of road on the 8th of September, 1871. Obviously this was not a compliance with the requirements of the law of 1854, and the company, by the 16th Section of its charter, was under obligations to comply with the terms and conditions of that law, in order to be in a position to claim its benefits. By this failure to build twenty-five miles of road within two years from the passage of the act of incorporation, the company must be held to have lost its right to claim land from the State, unless the condition of the country was such as to suspend the operation of the law of limitation. What was the condition of Texas about the time of the organization of the company in 1867, and for three years thereafter ? On the 2d of March, 1867, the Congress of the United States passed the first of the series of acts popularly known as the Reconstruction Acts. During the same year the State was placed under military government; its principal executive and judicial officers were removed from office ; the Legislature was not permitted to assemble, and a new scheme of reconstruction was inaugurated. The whole machinery of civil government put in operation in 1866 was subjected to military control. The state of war—not open, but suppressed war—continued. This condition of things did not cease until the acceptance of the present Constitution and the withdrawal of military government in the spring of 1870. Row, in view of the force to be given to the act of the 11th of January, 1862, which, we have seen, extended the operation of the law of 1854, for the benefit of railroad companies, until after the close of the war, and by analogy to the constitutional rule in respect to the limitation of civil suits, it must, we think, be held that, from the 2d of March, 1867, until the acceptance of the present Constitution by the Congress of the United States, time did not run against any individual or corporation, to cut down any civil right. We will not pause to consider the effect of President Johnson’s proclamation of the 20th of August, 1866, declaring the insurrection in Texas at an end, upon a charter obtained from the Legislature of that year; for, granting, as we do, that time did run against the appellant from the date of its charter to the subordination of the State government to military control, yet the two years had not expired.. From the 22d of October, 1866, the date of the charter, to the 2d of March, 1867, when the State was subjected to military control, was a little less than five months; and from the 30th of March, 1870, the date of the acceptance by Congress of the present Constitution, to the 8th of September, 1871, when the twenty-seven miles of road were completed, was less than eighteen months. 'So, upon the view we take of this branch of the case, the company have not lost their right to claim the benefits of the act of 1854. But it is insisted by the Attorney-General that all grants of land to railroad companies are destroyed and inhibited by the present Constitution. "We do not think so. The 6th Section of 10th Article of the Constitution, which provides that “ The Legislature shall not hereafter grant lands to “ any person or persons,” etc., is plainly prospective in its operation, and was not intended to affect the claim of railroad companies to lands under former laws. It is not our information that such a meaning was claimed for it by any member of the Convention when this Section of the Constitution was under discussion. The 7th Section of the 10th Article can only refer to lands that had previously been acquired by railroad companies, and which had not been alienated hv said companies in conformity with their charters and the laws of the State under which the grants were made. How could companies have alienated lands which they had never acquired % What law required them to do so ? The section has a plain meaning, and can only apply to “ lands granted,” and not alienated, as the laws of the State required. It only remains to consider the power of the court to issue the writ of mandamus. “ It is a settled and invariable principle in the laws of Eng- “ land,” says Blackstone, “ that every right, when withheld, “ must have a remedy, and every injury its proper redress.” We derive the writ of mandamus from the English law. It is defined by Blackstone to be “ a command issuing in the king’s “ name from the court of King’s Bench, and directed to any “ person, corporation, or inferior court of judicature in the “ king’s dominion, requiring them to do some particular thing “ therein specified, which appertains to their office and duty, and “ which the court of King’s Bench has previously determined, “ or at least supposes to be, consonant to right and justice.” In the case of King v. Baker, 3 Burroughs, Lord Mansfield said : “ This writ ought to be used upon all occasions where the “ law has established no specific remedy, and where in justice “ and good government there ought to be one.” In Marbury v. Madison, Chief Justice Marshall said: “ It is “ not by the office of the person to whom the writ is directed, “ but the nature of the thing to be done, that the propriety or “ impropriety of issuing a mandamus is to be determined.” In the case of the Commissioner of the General Land Office v. Smith, 5 Texas, Judge Wheeler said : “ A mamdamus may is- “ sue to compel the Commissioner of the General Land Office “ to issue a patent, when it shall be made to appear to the court “ that the right of the party is clear, and that it had been re- “ fused by the Commissioner.” We can see no reason why the propriety of issuing the writ of mandamus, in any proper case, to the Commissioner of the Land Office, or to any other officer of the State government, should ever have been brought into question. It is said that an officer cannot be compelled by a mandamus to do any act involving an exercise of official discretion. This is very true, when properly understood. It means that an officer cannot be compelled by mandamus to do anything which the law gives him a discretion not to do. It does not mean that the writ will not issue to compel an officer to do any act the performance of which requires an exercise of mind or judgment, such, for example, as the identification of an individual. In this connection, we deem it proper to say that, while we entirely approve the decision of this court in the case of The Houston Tap and Brazoria Railroad Company v. Randolph, 24 Texas, 317, we think there are propositions in the opinion of the court, stated in the way of argument, which are perhaps liable to misconstruction, and therefore calculated to mislead. It is not to be assumed that the courts will interfere in the business of the other departments of the government. It is the province of the courts to determine cases that are brought properly before them. To do this, cannot be any interference with the rights or duties of others. If any citizen has a right which is withheld from him, he may call upon the courts, in a. proper manner, to enforce his right. Thkt the redress which the court thinks proper to award involves the performance by an officer of the Executive Department of the government, of a duty required of him by law, is certainly no reason why the court should withhold justice. There are cases in which the writ of mandamus is the only remedy for a right withheld. In all such cases, the court would be wanting in the discharge of duty, to deny the writ. We are of the opinion that there was error in the judgment of the District Court. The judgment of the District Court is therefore reversed, and the cause is remanded, to be proceeded with in accordance with this opinion. Walker, J". This is a proceeding in ma/ndamus, commenced in the District Court of Travis county, by the appellant. By the terms of the act under which plaintiff claims incorporation, it also claims the right to demand and receive such donations of land as are by law granted to other like incorporations under an act which took effect on the 16th of April, 1854, which is entitled “ An Act to encourage the construction of railroads in Texas by donations of lands.” This act provides that “ any railroad company chartered by the Legislature of• “ this State, heretofore • or hereafter constructing within the “ limits of Texas a section of twenty-five miles or more of rail- “ road, shall be entitled to receive from the State a grant of six- “ teen sections of land for every mile of road so constructed and “ put in running order.” Section 6 of the act (Paschal’s Digest, Article 4950) provides that, “ any railroad company having completed and put in “ running order a section of twenty-five miles or more of its road, “ may give notice of the same to the Governor, whose duty it “ shall be to appoint some skillful engineer, if there be no “ State engineer, to examine said section of road, and if upon “the report of said engineer, under oath, it shall appear that said “ road has been constructed in accordance with the provisions “ of its charter, and of the general laws of the State in force at “ the time, regulating railroads, thereupon it shall be the duty “ of the Commissioner of the General Land Office to issue to said “ company certificates -of six hundred and forty acres each, .“ equal in number to sixteen sections per mile of road so com- “ pleted.” The directory provisions of the act it is unnecessary to notice. By reference to Article 4958, Paschal’s Digest, that which would seem to be a supplemental act provides, that no road benefited by said act shall receive any donation of land under its charter, or under the supplemental act, for any work not done in ten years after the passage of the act; which went into force on the 16th of April, 1854. An act of the Legislature passed January 11th, 1862, Article 4961, Paschal’s Digest, provides, that any company entitled to the benefits of the act of January 30th, 1854, and the act supplementary thereto, should not forfeit any of its rights under those laws, provided said company shall complete such section or fraction of a section as to entitle it to donations of land under existing laws, within two years after the close of the present war between the Confederate States and the United States of America. An' act of February 18th, 1862, Paschal’s Digest, Article 4965, exonerates railroad companies from computation of the time embraced in the war, in reckoning the period allowed. them in their charters for completing their several undertakings. The last of this series of acts was passed and took effect on the 13th day of November, 1866 (General Laws, 11th Legislature, page 212), and it provides, “that the grant of sixteen “ sections of land -to the mile to railroad companies, heretofore “ or hereafter constructing railroads in Texas, shall be extended “•under the same restrictions and limitations heretofore pro- “ vided by law, for ten years after the passage of this act.” These are the several legislative enactments under which the plaintiff (or relator) seeks to make out its right to a peremptory mandamus against the defendant, to compel him to issue certificates for the land to which it alleges it is entitled. The petition sets out a copy of the plaintiff’s charter, which is contained in an act entitled “An Act to incorporate the “ Houston and Great Northern Railroad Co.,” passed on the 22d day of October, 1866. It further alleges that on the faith of the grants and guarantees of rights and privileges mentioned and set forth in its charter, and the laws to which it relates, that on the 13th day of Hay, 1867, in accordance with said laws and parts of laws, it organized as a body corporate and politic, in good faith and in compliance with the terms of its charter, accepting the grants, privileges, and franchises therein contained; and that, in compliance therewith and in accordance thereto, so acting as an incorporated company, it solicited and obtained private cash subscriptions from individuals, amounting in the aggregate to six millions of dollars. That said private subscriptions were made in good faith, by persons acting upon the promises and guarantees contained in the acts referred to; that a large amount of money, to wit, fifteen hundred thousand dollars, has been expended in constructing and equipping the road which the company undertook to build. That said road does not run within five miles of any other railroad, parallel thereto. That, after the completion of twenty-seven miles of said railroad, it notified his Excellency the Governor of the State of Texas, thereof, and that, in accordance with law, he did send John "W. Glenn, State Engineer, to examine and report upon said road. That said John W. Glenn has examined said road and made his report, and that said report is favorable to the rights and claims of the plaintiff. The petition further alleges that the plaintiff has duly complied with the terms of its charter, reporting its organization, making annual reports; has filed the required certificates, profiles, and maps showing the designation of its. route, curvitures and grade of its road, in the General Land Office, and in the county surveyors’ and clerks’ offices of the several counties through which its road has been located and constructed. And that the company commenced the work of building its road on the ground in the month of March, 1870, and had completed a section of twenty-seven miles on the 8th day of September, 1871. The plaintiff further alleges that a copy of the report of the State Engineer has been duly delivered to the defendant; and that, on the 6th day of October, 1871, the plaintiff] by its agent and secretary, made demand on the defendant as Commissioner of the General Land Office, for the land certificates to which it alleges itself entitled; and that the defendant refused and still refuses to issue and deliver to the plaintiff said certificates, but alleges that the act of November 30th, 1866, and the other acts already referred to in this opinion, are no longer in force, and have no binding validity upon him, because, he says, they are repealed and superseded by the present Constitution of the State of Texas, and that the plaintiff has no right to claim an.d receive said land-certificates under said laws; all of which claims and pretenses of defendant, plaintiff avers are untrue and contrary to equity and right; and that if the present Constitution of the State be inconsistent with, or contrary to the rights vested in plaintiff, under and by virtue of its said charter and said general laws, that said Constitution, in so far as it impairs the said rights of plaintiff, is in violation of the Constitution of the United States of America. The plaintiff alleges, further, that he has no other adequate remedy than by mandamus against the defendant, and that he is entitled, by reason of the premises, to four hundred and thirty certificates of the denomination of six hundred and forty acres each; and prays for the peremptory writ of ma/ndamus and general relief. The defendant answers the petition hy way of demurrer, and by general denial. The grounds of demurrer and answers, as set forth, are as follows: “ÍTow comes Jacob Keuchler, as the Commissioner of the General Land Office of the State of Texas, “ the defendant in the above entitled and numbered suit, by his “ attorney, the Attorney-General of said State, and by way 'of “ answer unto the petition of the plaintiff therein, he first de- “ mnrs thereto, and says that the same is insufficient in law ; and, “ in addition to the other causes or grounds of demurrer, ap- “ parent on the face of said petition, he assigns the following “ causes or grounds of demurrer, to wit: “ First. Because it does not appear from said petition that “ defendant can be compelled by mandamus to do any act or “ acts involving an exercise of official discretion on his part. “ Second. Because it does not appear from said petition that “ the plaintiff has been incorporated by a Legislature of said “ State, organized and acting under a State Constitution accepted “ by the Congress of the United States of America, or by a “ Legislature competent to make a donation of a part of the “ public domain of the State of Texas to a private corpora- “ tion; but, on the contrary, it does appear from said petition, “ that the plaintiff was only incorporated by the Legislature “ of a provisional government of said State, which had no “ power to create a private corporation, and to make it a grant “ of land. “ Third. Because by Article 9 of the Constitution of said “ State, accepted by said Congress, and more particularly by “ Section 6 thereof, and by Article 10 of said Constitution, and “ more particularly by Section 7 thereof, it appears that the “ plaintiff has no cause of action. “ Fourth. Because, the school rights and privileges secured “ by the Constitution of said State last aforesaid, are guaranteed “ by an act of said Congress, entitled ‘ An Act to admit the “ ‘ State of Texas to representation in the' Congress of the United “ ‘ States,’ approved March 30, 1870. “ Fifth. Because the act incorporating the plaintiff is un- “ constitutional, null, and void on its face. “ Sixth. Because it does not appear from said petition that “ the twenty-seven miles of railroad alleged to be completed “ were completed, or were even commenced, prior to the adop- “ tion and acceptance of the present State Constitution. u Seventh. Because the act of incorporation under and by “ virtue of which the plaintiff claims to be incorporated, is not “ a contract—said State not having under it, or by any 1-aw, “ the right to enforce a specific performance thereof] or to re- “ cover damages in case of non-performance. “ Eighth. Because no State government of Texas ever had, “ or now has, the constitutional authority to make a gift to a “ private corporation. “ Ninth. Because the State of Texas has the control of its “ public lands, and of every part thereof, until it has divested “ itself of the legal title to the same. “ Tenth. Because of other causes apparent on the face of “ said petition, which does not set out any cause of action, and “ which fails to show that the plaintiff is entitled to the relief “ sought, or to any relief—said petition being in effect a suit “ against the State without.its consent, over which this court “ has no jurisdiction. “ And by way of further answer defendant avers that he has “ no knowledge of the railroad, and of the matters and things “ touching the same, in said petition alleged, and that being “ sued in his official capacity, and not individually, he conceives “ it to be his duty to deny, and he accordingly denies, all and “ singular the allegations in said petition contained, and calls “ for strict proof thereof. And by way of further answer, de- “ fendant avers that on the facts officially brought to his notice “by the records and papers of the General Land Office of the “ State of Texas, touching the pretended claim for land certifi- “ cates asserted by plaintiff in the petition aforesaid, defendant “as Commissioner of said Land Office has adjudicated that “ plaintiff is not entitled to demand and receive the same, or “ any part thereof; and defendant now again so adjudicates.” The judgment of the District Court is predicated on the 7th cause of demurrer, and to this judgment the plaintiff excepted, and his bill of exceptions is as follows: “ Be it remembered that on the hearing of the above stated “ cause, upon the demurrer of the defendant to the petition of “ plaintiff, before the Hon. J. P. Bichardson, judge presiding “ in the District Court of Travis county, the said demurrer was “ sustained upon the ground and opinion expressed by the “judge, that the act of incorporation of the 22d October,"1866, “ made part of the petition, under the 16th Section of which “ the plaintiff claims, and the organization under and acceptance “ of said act by plaintiff!, in manner as alleged, did not eonsti- “ tute a contract between the plaintiff and the State of Texas, “ under and by virtue of which the plaintiff is now entitled to “ the issue of land certificates by defendant in manner as claimed, “ and that it was not necessary to express any opinion or to de- “ cide upon the other grounds specified in the defendant’s de- “ murrer, and accordingly, upon the opinion expressed as afore- “ said, the court dismissed the plaintiff’s petition; to which opin- “ ion of the court, upon the ground aforesaid, and the decision “ thereon, the plaintiff' excepted at the time, and now tenders “ this bill of exceptions, that the same may be signed, sealed, “ and certified, and made part of the record, which is aceord- “ ingly done in open court, this 24th of October, A.D. 1871.” There are but two assignments for error to the judgment of the District Court; they are as follows: “ First. The District Court erred in sustaining the demur- “ rer of defendant to the plaintiff’s petition and suit. “ Second. The District Court erred in its opinion upon said “ demurrer, as set forth in the bill of exceptions taken by “ plaintiff, signed and sealed by the judge, and on file in said “ cause.” The judge of the District Court appears to have considered the seventh cause of demurrer as well taken, and upon that he predicates his judgment. We might also decide the ease by considering the single question presented by the bill of exceptions; but by so doing we might not be able to dispose of it in a manner satisfactory to the parties. I will therefore endeavor to examine the different causes of demurrer assigned, and so far as I may be able, determine them by the light of authority, and the application of recognized principles of law. And I may remark that I am not insensible to the great delicacy and importance of these questions, not only to the parties concerned, but to the people of the State. In the ease of Fletcher v. Peck, 6 Cranch, 128, that great and good man, Chief Justice Marshall, when approaching the solution of questions similar to those now presented for our decision, thought it not improper to say: “ The question whether “ a law be void for its repugnancy to the Constitution, is at all “ times a question of much delicacy, which ought seldom, if “ ever, to be decided in the affirmative in a doubtful case. The “ court, when impelled by duty to render such a judgment, “ would be unworthy of its station, could it be unmindful of “ the solemn obligations which that station imposes. But it is “ not on slight implication and vague conjecture that the Legis- “ ture is to be pronounced to have transcended its powers, and “ its acts to be considered as void. The opposition between the “ Constitution and the law should be such, that the judge feels “ a clear and strong conviction of their incompatibility with “ each other.” Whether the act, on the part of the Commissioner, of issuing the certificates to which the plaintiff alleges itself entitled, lies within the boundary of discretion, to be performed or not, as he shall determine or “ adjudicate,” is the question presented by the first assignment of demurrer. In the case of Amos Kendall, Postmaster-General of the U. S. v. The United States, on the relation of Wm. B. Stokes and others, 12 Peters, 524, we find abundant authority for saying, as was said by Chief Justice Taney in that case, Mcmdamus does not seek to direct or control the Commissioner in the discharge of an official duty of an executive character, much less of any supposed judicial function vested in him, but simply to enforce a performance of a ministerial act. I will not here discuss the question whether the Legislature had the right to direct the performance of the act, farther than is necessary to dispose of this branch of the demurrer. Conceding for a moment that the Legislature had the power, then, if the plaintiff acquired a right under the exercise of this power by the Legislature, there must be somewhere a remedy for the enforcement of the right; and by numerous authorities of the highest respectability, some of which will be hereafter referred to in this opinion, I am forced to the conclusion that the plaintiff, by its petition, has set forth a good cause of action to enforce a right secured by an act of the Legislature, of a precise, definite, and specific character, clearly and plainly enjoined by law. And I have applied the strictest rules of pleading to the petition, and am clearly of opinion that the demurrer ought not to be sustained, either to its form or substance. But this will not excuse us from the further duty of examining the whole case made upon the petition and demurrer. In Kendall v. The United States, 12 Peters, 625, Chief Justice Taney, in delivering the opinion of the court, remarks: “We all agree that by “ the act of July 2d, 1836, it was the duty of the Postmaster- “ General to credit Stockton . and Stokes with the amount “ awarded by the solicitor of the Treasury; that no discretion- “ ary power in relation to the award was given to the Post- “ master-General; and that the duty enjoined upon him was “ merely ministerial. These principles being agreed on, it fol- “ lows that this was a proper case for a mcmdamus, provided “ Congress have conferred on the Circuit Court for the District “ of Columbia the prerogative jurisdiction and powers exer- “ cised by the court of King’s Bench, in England; for Stockton “ and Stokes are entitled to have the credit entered in the man- “ ner directed by .the Act of Congress, and they have no other “ specific means •provided by law for compelling the perform- “ anee of this duty. In such a case, the court of King’s Bench, “ in England, would undoubtedly issue the writ of Mandmius to such an officer, commanding him to enter the credit.” Is the act on the part of the Commissioner of the General Land Office of issuing certificates for land to persons entitled to them, merely discretionary on his part, and left to his final judgment? „ Certainly, neither the statutes nor the adjudications had upon this subject would answer this question in the affirmative. In the case of Ward, the Commissioner of the General Land Office, v. ¡Nathaniel Townsend, 2 Texas, 581, which is believed to be the first case in which the right to mandamus was made apparent to the court, the chief justice delivered the opinion. The writ nisi was made peremptory. In the case of Hosner v. De Young, reported in 1 Texas, 764, the writ was refused; and, as we are told in the conclusion of the opinion, it was because “ the plaintiff not having pursued his remedy in the “ mo.de in which the State consented to be sued, he cannot be “ permitted to seek it in any other way.” This was a proceeding to compel a district surveyor to make a survey of a certain tract of land, by virtue of a fraudulent certificate. A remark of the learned judge, in deciding this case, may not be inapt here: “ The fee,” says Justice Lipscomb, “ being “ in the government until it passes into a perfect grant, no suit “ can be sustained to compel the government to divest itself of “jhe title, until the political authority has prescribed the mode “in which it shall be done; that in all such cases the political “ authority can establish, alter, and modify such regulations from “ time to time as may be deemed necessary in maturing an im- “ perfect into a perfect title; that this control is necessary to “ the protection of the public domain and a consequence result- “ ing from the fee being in the government.” This is a plain acknowledgment on the part of the learned judge, that what is here called the political authority had control over the public domain, the power to divest the State of the fee. And it would not seem difficult to determine what would he the reasoning and conclusion, in a ease where the authority had been properly exercised. (See Lewis v. The City of San Antonio, 7 Texas, 288; The State v. Delesdenier, 7 Texas, 76; Blair v. Odin, 3 Texas, 288; Paschal v. Perez, 7 Texas, 266; Clark v. Smith, 13 Peters, 195; 6 Cranch, 78; 9 Id., 11.) In the case of the Commissioner of the General Land Office v. Smith, 5 Texas, 471, the opinion of the court was delivered by Mr. Justice Wheeler. The court decided that the writ of mandamus lies as a private remedy, to compel the heads of departments to perform a duty, in cases where the duty is plain and there is no discretion ; and that the writ will not lie against an officer to compel the performance of a duty other than that which is ministerial. A very apt quotation is introduced into this opinion, from that of Chief Justice Taney, delivered in Kendall v. Stokes, 3 Howard, 100; this extract explains in a very concise manner the nature of the remedy by momdamus. “ Originally this was not regarded as an action by the party, “ but as a prerogative writ, commanding the execution of an “ act, where otherwise justice would be obstructed, and issuing “ only in cases relating to the public and government; and it “ was never issued where the party had any other remedy. It “ is now regarded as an action by the party on whose relation it “ is granted; but subject still to this restriction, that it cannot “ be granted to a party where the law affords him any other “ adequate means of redress.” I quote further from the opinion of Justice Wheeler: “ Respecting the general rule, there does not appear to have “ been any question; but the difficulty has been in making its “ application to particular eases, and in determining in such “ cases what acts are to be considered as merely ministerial, and “ what not. “ The distinction between ministerial and judicial and other “ official acts seems to be, that where the law prescribes and de- “ lines the duty to be performed with such precision and certainty “ as to leave nothing to the exercise of discretion or judgment, “ the act is ministerial; but where the act to be done involves “ the exercise of discretion or judgment in determining whether “ the duty exists, it is not to be deemed merely ministerial. “(14 Pet. R., 497, 514, 515; 12 Pet. R., 524; 6 How., U. S. R., 100; McElrath v. McIntosh et al., Monthly Law Rep., “N. S., Vol. I., No. 9, p. 399, and cases cited.) “ There are various duties assigned by law to the Commis- “ sioner of the General Land Office, to be performed before the “ patent can issue. He must pass upon the validity of the cer- “ tificate and the survey, he must determine whether both are “ of such a character as, under the law, to "entitle the party to a “ patent; he must also determine whether the land sought to be “ conveyed was vacant when located, or was appropriated by “ any previous claim which he is required by law to respect. “When these, and such other questions as may address them- “ selves to the commissioner under the laws prescribing his “ official duties, shall have been resolved in favor of the appli- “ cant, his right to his patent is clear and indisputable. The is- “ suing of the patent then becomes a ministerial act, involving “ no exercise of judgment, and one which the commissioner has “ no discretion to refuse. To withhold it would be the violation “ of a vested legal right. (1 Cond. R. S. C., 275.) And to “ deny the writ in such a case would be to deny a remedy where “ the right is clear and its violation palpable. Such a resolu- “ tion would ill comport with the administration of justice in a “ government of laws. (Id., 275, 6.) “ In the case of Marbury v. Madison, Chief Justice Marshall “ said: ‘ The question whether a right has vested, or not, is in “£ its nature judicial, and must be tried by the judicial authority.’ “ The determination of that question, manifestly, is an exercise “ of judicial authority, which must intervene in every case where “ the court is called upon to determine upon the rights of a “party; and no less in the case of an application for a manda- “ mm than in any other case. The court must judicially deter- “ mine the rights of the party. But if the right be clear and “has been denied, the authority of the court to apply the “'remedy is, we think, very clearly maintainable. Without “ considering in their order the several objections which have “ been urged to the awarding of the writ in this instance, I con- “ elude that a memdamus may issue to compel the Commis-. “ sioner of the Land Office to issue a patent, when it shall “have been made to appear to the court that the right “ uf the party is clear, and that it has been refused by the “ commissioner.” The cases referred to in defendant’s brief, on this point, are as follows: The Board of Land Commissioners v. Walling, Dallam, 524; Hosner v. De Young, 1 Texas, 769; League v. De Young, 2 Texas, 500: Marshall v. Clark, 22 Texas, 23; Kentucky v. Ohio, 24 Howard, 66. I cannot see that the learned argument of the Attorney-General derives much force from the cases referred to in our own reports; nor does the case of Kentucky v. Ohio, 24 Howard, conflict with the doctrine of our own decisions. An extract from the opinion of the chief justice may illustrate the views of that learned court, so far as they appertain to our jurisdiction of the case at bar. (24 Howard, 97.) “ It is equally “ well settled that a mandamus in modern practice is nothing “ more than an action at law between the parties, and is not “ now regarded as a prerogative writ. It undoubtedly came “ into use by virtue of the prerogative power of the English “ Grown, and was subject to regulations and rules which have “ long since been disused. But the right to the writ, and the “ power to issue it, has ceased to depend upon any prerogative “ power, and it is now regarded as an ordinary process in cases “ to which it is applicable. It was so held by this court in the “ cases of Kendall v. United States, 12 Peters, 615, Kendall v. Stokes and others, 3 Howard, 100. So, also, as to the process “ in the name of the Governor, in his official capacity, in behalf “ of the State. In the case of Madraso v. The Governor of Georgia, 1 Peters, 110, it was decided that in a case where “ the chief magistrate of a State is sued, not by his name as an “ individual, but by his style of office, and the 'claim made “ upon him is entirely in his official character, the State itself “ may be considered a party on the record. This was a case “ where the State was the defendant; the practice, where it is “ plaintiff, has been frequently adopted by suing in the name “ of the Governor in behalf of the State, and was indeed the “form originally used, and always recognized as the suit of the “ State. “ Thus, in the first case to be found in our reports in which “ a suit was brought by a State, it was entitled, and set forth in “ the bill, as the suit of ‘ The State of Georgia, by Edward Tell- “ c fair, Governor of the said State, complainant, against Samuel “ ‘ Brailsford and others and the second case, which was as “ early as 1793, was entitled and set forth in the pleadings as “ the suit of ‘ His Excellency Edward Tellfair, Esquire, Gov- “ ‘ ernor and Commander-in-chief in and over the State of “1 Georgia, in behalf of the said State, complainant, against “ £ Samuel Brailsford and others, defendants.’ “ The cases referred to leave no question open to controversy, “ as to the jurisdiction of the court. They show that it has been “ the established doctrine upon this subject ever since the act “ of 1789, that in all cases where original' jurisdiction is given “ by the Constitution, this court has authority to exercise it “ withou