W. Stewart and others v. Stephen Crosby, Com'r. G. L. O., 15 Tex. 546

Wheeler, J. In the argument of this case, questions of great moment to the parties, involving an inquiry respecting the constitutionality of the legislative enactments, which they have invoked and on which they rely to maintain their claims, have been discussed; and the enactments in question have been examined in reference to their constitutionality and effect.

But, as the decision of the case, before the Court, in our opinion, depends upon a few evident propositions, plainly deducible from the record and the legislation applicable to the case, which are free from difficulty ; and does not necessarily involve a question of the constitutionality of legislative enactments, examination or inquiry, with a view to the decision of that question, is unnecessary. The time remaining will not permit an extended discussion of even the material questions in the case, on which its decision depends.

But as a decision at the present Term is earnestly desired by the parties, and may be important to the attainment of their rights, we shall proceed to dispose of the case, upon grounds deemed clear, and sufficient to determine the litigation between the parties ; and shall state only our conclusions upon the material questions involved in the decision ; so as to indicate distinctly the grounds of our judgment; reserving for a future occasion, it may be a future case, the statement at length of the reasons on which we rest our conclusions.

For the present, then, it may suffice to say, we think it free from doubt, that the Ordinance, appended to the Constitution, is a part of the fundamental law of the land. Having been framed by the Convention that framed the Constitution of the State, and adopted by the Convention and the people along with the Constitution, it is of equal authority and binding force, upon the Executive, Legislative and Judicial Departments of the Government of the State, as if it had been incorporated in the Constitution, forming a component part of it.

We are further of opinion, that the colonization contract of the 20th of January, 1843, expired and was determined by its own express terms and limitation, and by the terms and limitation of the Joint Resolution under which it was made, on the first day of July, 1848 ; and that, therefore, the vacant lands embraced within the territorial limits reserved and set apart for the purpose contemplated by the contract, and not appropriated under it; or to which the colonists had not acquired rights under the provisions of the Ordinance and laws enacted in pursuance thereof; or the contractors by the terms, stipulations and conditions of their contract; or which had not been, in the words of the contract, “ conveyed to them, or acquired by them, or appropriated under the provisions of this contract,” instantly reverted to, and became a part of the vacant public domain of the State ; and so remained until the passage of the Act of the 10th of February, 1852 ; and that the rights acquired by valid locations, made upon vacant lands within the limits of the colony, after the first day of July, 1848, and before the passage of the Act of the 10th of February, 1852, not inconsistent with the rights secured to actual settlers and colonists by the Ordinance and laws enacted for their benefit in pursuance thereof, were not divested or impaired by the last mentioned Act.

And if it were doubtful whether the remedy for the enforcement of the right was impaired by any of its provisions, that doubt is removed, as to locations without the limits which had been sectionized by the contractors of the colony, by the Act of the 1th of February, 1853. And further, that the colonists contemplated by the second

section of the last mentioned Act, were thereby entitled to a preference right over the contractors, in making their selections and locations, for a period of three months thereafter ; and that, after the passage of that Act, the Commissioner of the G-eneral Land QEce was not authorized by law to issue patents to the plaintiffs upon the selections and locations made by them, which conflicted or might conflict with those legally made, or to be made by colonists ; or with locations made by others, between the first day of July, 1848, and the 10th of February, 1852; nor until there had been a compliance on their part with the requirements of the law providing for their issuance, and intended to secure to the State the rights reserved for the benefit of colonists, and to the latter their preferred rights.

And. further, that the Commissioner was authorized and required to issue patents to the appellees, upon their locations and surveys ; which locations were made after the first day of July, 1848, and prior to the tenth of February, 1852, upon vacant lands within the limits of the" colony and without the portion of it which had been sectionized by the contractors ; and which did not conflict with any right or privilege secured by law to an actual settler and colonist.

And, from the application of these several propositions to the case before the Court, it results, that the Court adjudged rightly upon the merits of the case, in dissolving the injunction, refusing the mandamus and dismissing the plaintiff’s petition; and in holding that the appellees, Catlett & Johnson, were entitled to patents upon their locations; and though an order directing their issuance, may not have been necessary, it was not improper or erroneous, as affecting any rights of the appellants. And we are therefore of opinion that there is no error in the judgment, and that it be affirmed. Judgment affirmed.