Robert Rose v. The Governor; The Same v. The Same, 24 Tex. 496

Bell, J. There are only two questions presented by the record and in the argument of counsel. These questions practically resolve themselves into one, for they both concern the right of the plaintiffs to maintain this action. The first inquiry is, what is the proper construction to be given, in this case, to the 27th

section of the Act of December 14th, 1837, entitled, “

An act to reduce into one act, and to amend the several acts relating to the establishment of a General Land Office.” The 27th

section of the act reads as follows: “ That in order to settle the claims of empresarios, each and every one of the same are hereby authorized to institute a suit against the president of the republic of Texas, which suit or suits, shall be tried in the county in which is situated the seat of government, and shall be tried as all other land suits are required to be tried. And should any empresario, who should thus sue, fail to establish the claim for which he sues, he shall pay all the costs of said suit; provided, that neither aliens, nor the assignees of aliens, shall be entitled to the benefits of this act.” It is, perhaps, worthy of remark, that this 27th

section of the Act of December, 1837, is but a re-enactment of

an act of June 12th, of the same year, entitled, “

An act supplementary to

an act entitled, ‘

An act to establish a General Land Office for the republic of Texas,’ passed December 22d, 1836.” The reenactment of this provision, as a part of the general act reducing into one, and amending the several acts relating to the establishment of the land office, shows, that the subject was one of importance, and gives weight to the presumption, which exists in all cases, that the legislative body maturely considered the matter before them. The subject was, indeed, one of very great importance. The land system of the Republic was about to be put into operation.

The contracts of the empresarios were declared to have expired on the day of the Declaration of Independence. All the vacant lands had become the property of the Republic. The war of the revolution had not terminated, and the public lands were regarded by all, as constituting the resource from which means were to be obtained to sustain the independent government that had been established. Under these circumstances, we must suppose, that the claims of the empresarios were well known to the Congress of the republic, and that the legislation on the subject was founded upon the fullest investigation.

The empresarios were but few in number; they were all known. It was known that Zavala and Yehlein were empresarios. It was matter of history that “ The Galveston Bay and Texas Land Company,” having its directory in the state of New York, then a foreign state to the Republic of Texas, asserted large pretensions growing out of contracts with the empresarios Burnet, Vehlein, and Zavala.

Bearing these facts in mind, it may also be worth while to remark, in this connexion, that the proviso of the statute, which has been quoted, does not have exclusive reference to empresarios themselves, because the .assignees, of whom the proviso speaks, could not be empresarios. An empresario, as the term is used in our land laws, was one who contracted directly with the government. And I am of opinion, that the word “ aliens” used in the proviso, was not intended to refer only to empresarios who were aliens.

I think the proviso was intended to be sweeping, and to cut off from the benefits of the act, all persons who were not citizens of the republic. It would have been contrary to the policy of the government, to have permitted an alien assignee of a.citizen empresario, to have recovered and held large bodies of land in the republic.

I think the proviso was enacted in view of all the facts as they existed; and that it meant to exclude from the benefits of the act, both alien empresarios, alien assignees of citizen empresarios, and assignees of alien empresarios, even though such assignees were citizens of the republic. It is argued, with much ingenuity, by the appellant’s counsel, that the proviso only intended to exclude from the benefits of the act, those who might be aliens at the time of the institution of their suits. We do not think the position is tenable, as will be understood from what has already been said.

The contracts of the empresarios were all past transactions. The statute did not contemplate, that empresario contracts would be afterwards made, to which the government of the republic would be a party. It was intended only to provide for a state of things which then existed, and which then pressed upon the attention of the government ; and we think that the proviso referred to persons in the relations which they then bore to the government. These views make it unnecessary for us to discuss, at any length, the remaining point in the case.

But upon that point also, we think the judgment of the court below must stand. The point is, that these appellants are not qualified to maintain this suit against the Governor of the State of Texas, because they never had capacity to maintain a suit against the President of the Republic of Texas.

The Act of April 25th, 1846, provides, “ that in all cases in which parties were authorized by the laws, to commence suit against the President of the Republic of Texas, or against the Republic, prior to the adoption of the State Constitution, such parties may now commence such suits against the Governor or against the State of Texas.” It is contended by the counsel for the appellee, that these appellants, being aliens to the Republic of Texas, were never authorized by the laws, to commence suit against the President of the Republic, or against the Republic; and that they are not therefore such parties as may commence suit against the Governor, under the provision of the Act of the 25th of April, 1846.

We think the. position is a sound one. The right to sue the Governor, or the State, is matter of favor conferred by the State, in derogation of that immunity which every sovereignty enjoys; and we think, that statutes conferring such privileges should be construed with strictness, so as to extend the right only to those by whom it was clearly intended that it should be enjoyed. There can be no question at all that these appellants were not entitled to sue the President of the Republic of Texas, or the Republic of Texas. They were aliens to the Republic, as is shown by the evidence.

If they had instituted their suits, at any time during the existence of the Republic of Texas, they would clearly have been within the operation of the proviso of the 27th

section of the Act of December 14th, 1837. Hot having had capacity to sue the President of the Republic, or the Republic, they cannot now sue the Governor of the State, or the State. The judgment of the court below is affirmed. Judgment affirmed.