John M. Durrett v. Stephen Crosby, Commissioner of the General Land Office, 28 Tex. 687

Moore, C. J. —There is no principle more firmly settled on reason and authority than that a mandamus will not issue to compel a public officer to perform

an act unless it be clearly enjoined and defined by law, and therefore ministerial in its character, and involves, neither the exercise of discretion nor leaves any alternative. (Puckett v. White, 22 Tex., 559; Horton v. Pace, 9 Tex., 81; Arberry v. Beavers, 6 Tex., 475; The Comr. &c. v. Smith, 5 Tex., 471; Glasscock v. Comr., &c., 3 Tex., 51.) Unless, therefore, it were the plain and imperative duty of the appellee, as commissioner of the general land office, to issue the patent demanded by the appellant on the 23d of November, 1864, his prayer for a mandamus was properly refused.

His right to a patent at a former period, on the certificate and its original approval by the commissioner of claims, is altogether immaterial. It was certainly as competent for the legislature to authorize a re-examination of the validity and legality of certificates and land warrants previously approved, as to require their original presentation to the commissioner of claims. (Peck v. Moody, 28 Tex., 93; League v. De Young, 11 How., 185; same case, 2 Tex., 497; Hosner v.

De Young, 1 Tex., 764.) If on such re-examination a certificate has been rejected by the commissioner, unless its validity be established in the manner provided by law, it cannot be regarded as any evidence whatever of a claim to land, much less as a foundation for a mandamus to compel the commissioner of the general land oifice to issue a patent upon it. Unless the certificate, when re-examined, be approved, the commissioner has no discretion, but is positively forbidden by law to issue a patent upon it. The 11th

section of the law of the 7th of February, 1860, reorganizing the court of claims, in unmistakable terms conferred upon the commissioner, Hotchkiss, authority to re-examine and pass upon the validity and genuineness of the warrant claimed by the appellant as a demand against the State for land, (Laws 8th Leg., p. 54,) and that he should report his action thereon to the commissioner of the general land office for his information and guidance. (Id., sec. 16.) And it is altogether immaterial to inquire into the motives or inducement for the commissioner of claims to reject the certificate; for however improper they may have been, or however erroneously he may have acted in rejecting it, the appellee evidently had no authority or right to review or correct his action.

Nor would appellant occupy any more favorable position if it were conceded that his warrant was, as he insists, rejected by the commissioner of claims prior to the time he was directed by law to take definite action upon it. It certainly cannot be held that his rejection of the certificate is on this account absolutely void. The purpose of the delay in the final action of the commissioner was doubtless to give ample time for all persons interested in the claims to be acted on to present, if in their power, testimony to support them.

The most that can be said is, that the action of the commissioner did not preclude appellant from presenting the evidence to support his certificate until the expiration of this time, and that the time within which he was barred from establishing his certificate by suit only commenced to run against him from that date.

The provision seems, however, not to be strictly applicable to the examination of certificates previously approved, but to such as had not been presented to the former commissioners, and upon which he had to take original action. (Laws 8th Leg., p. 54, sec. 11.) Be this, however, as' it may, as we have before said, the appellee has no authority to canvass or review the action of the commissioner of claims. The latter officer had acted, on a question committed by law to his determination. If his action was improper or erroneous, appellee -was not intrusted with the power and authority of correcting it.

The judgment is Affirmed.