Board of Land Commissioners of Milam County v. William W. Bell, 1 Dallam 366

RUSK, Chief Justice. This cause came up upon appeal from the District Court of Milam County. The facts stated in the transcript of the record show that Bell applied to the board of land commissioners of that county claiming a certificate for one league and one labor of land as his headright. It is in proof that he was the head of a family, and that he emigrated to Texas on the-day of October, 1836. The board refused to grant him a certificate for the quantity of land claimed; from which decision Bell appealed to the district court.

The facts as stated were admitted and the cause submitted to the court, who determined that Bell was entitled to a league and labor of land, and awarded a peremptory mandamus against the said board of land commissioners, commanding them to issue to Bell a certificate for the same. From this decision an appeal was taken to this court. The questions which present themselves are: First. Did the district court err in awarding the mandamus? Second. Is Bell entitled to a league and labor of land by law ? It is clear that a mandamus will not issue where the party has another legal and specific remedy.

Where there is a judicial discretion vested in an inferior tribunal, it can not issue to control its judgment. It may issue commanding such tribunal to proceed to judgment, but can not direct what judgment shall be given. In this case, however, the mandamus seems to have had no other object than to order the board to issue a certificate, not upon its own, but upon the judgment of the court, which we hold to be competent; but a peremptory mandamus should not have issued until the board of land commissioners had refused to carry out the judgment of the court.

Upon the second question, whether Bell was entitled by law to a certificate for a league and labor of land, it has been contended by his counsel that the colonization law of Coahuila and Texas was in force until repealed by the passage of the land law by the Congress of Texas; that the laws of the Consultation declared them in existence; that the Constitution ratifies the laws of the Consultation, etc.

The Attorney-General contended that the adoption of the Constitu-ion was a repeal of the colonization laws; that the Consultation having declared themselves a part of the Mexican Bepublic had no right to pass laws disposing of the public domain. It is unnecessary for the court in this case to decide upon the validity of the laws of the Consultation, or what force and effect they should have, as the fifteenth

article of the plan and powers of the Provisional Government, which is relied upon by the counsel for Bell, refers to laws that then existed; and if it be found that the colonization law has been repealed, then it follows that no rights were conferred by that article. The Decree No. 190, of the Congress of Coahuila and Texas, passed 28th April, 1832,

section 38, repeals the colonization law of March, 1825, and substituted another colonization law, changing the conditions and reducing the quantity of land allowed to half a league, and this only upon condition that the head of the family should have at least one hundred head of cattle and horses, or six hundred head of smaller stock—stating, however, that no change should be made with respect to contracts which the executive had ratified, etc. By Decree No. 272, of the Congress of Coa-huila and Texas,

article 29, passed 26th March, 1834, this law was also repealed except so far as related to empressarios and other contracts in existence. By Decree No. 309 it was declared that all families then residing in Texas should be entitled to the portions of lands designated by the colonization law of 1825, provided they possessed the qualifications required by that law. It is clear, then, that at the date of the declaration of independence the colonization laws were not of force, except so far as related to contracts in existence, or to families who had arrived previous to the 2d of May, 1835.

The Constitution declares that all persons who resided in Texas on the day of the declaration of independence should be entitled to land in the proportions therein stated, but made no provision for allowing portions of lands as headrights to any who should arrive afterwards. By the twenty-fourth

section of

an act passed by the Congress of Texas on the 22d December, 1836, it is declared that every emigrant who arrives in this Republic from and after the first day of January (then) next, and who was the head of a family, should be entitled to a conditional grant of twelve hundred and eighty acres of land. By this law those who arrived in Texas after the date of the declaration of independence and before the first day of January succeeding, were not provided for. This law, it will be recollected, never went into operation as contemplated when it was passed, but was superseded and repealed by another law of Congress, passed 14th December, 1837. By the twenty-ninth

section of the latter law it is declared that every volunteer who arrived in this Republic after the 2d of March, 1836, and before the first day of August, 1836, and had received, or might receive thereafter an honorable discharge, should receive the quantity of land which by that act was secured to original colonists. In the same

section it is also enacted that every person who had arrived in Texas after the declaration of independence, and previous to the first of October, 1837, if the head of a family, etc., should be entitled to a conditional grant of twelve hundred and eighty acres of land. It is not contended that Bell had received an honorable discharge, or that he had even arrived here previous to the first of August, 1836. From a view of all the laws upon the subject, we are of opinion that the appellee Bell was not entitled to more than a conditional grant of twelve hundred and eighty acres of land.

It is therefore ordered that the judgment of the court below be reversed and the cause remanded, in order that the appellee may obtain his certificate for the twelve hundred and eighty acres of land according to law. Reversed and remanded.