William Pelham v. The State, 30 Tex. 422

Lindsay, J. This action was brought by the appellant in the district court of Collin county, by authority of the 12th

section of the act of the 4th of February, 1858,' entitled “An act to ascertain what land certificates have been illegally issued by the county courts of counties in Peters’ colony, and to provide for issuing patents on such of said certificates as are legal.”. A certificate was granted to the appellant for six hundred and forty acres of land in said colony by the county court of Collin, on the 13th day of January, 1857. On the 28th of July, 1858, the board of commissioners, appointed by the governor under the provisions of the 1st

section of said act, rejected said certificate, upon the ground that there was not sufficient evidence of the validity of the certificate. At the first term of the district court after said rejection the appellant filed his petition therein against the state, under oath, setting forth the grounds on which he founded his claim, and alleged that he believed himself entitled to the amount of land mentioned in his certificate by virtue of his being a colonist of Peters’ colony, and sought to establish that claim by proof.

The general issue being formed by operation of law, on the calling of the cause for trial the appellant demanded a jury, which was refused by the court; and the issues of fact made by the petition and the statutory traverse, were tried by the court. This was assigned as error by the couusel for the appellant. It may be gravely questioned whether such a case as this comes within the purview of either of the sections 16 and 18 of

article IY of the constitution, securing parties the right of trial by jury.

Section 16 says: “In the trial of all causes in equity in the district court the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury, to be governed by the rules and regulations prescribed in trials at law.” This is not an equity case, but a ease of mere naked law, and cannot be affected by this

section of the constitution. The 18th

section of the same

article says: “In all causes arising out of a contract before any inferior judicial tribunal, when the amount in controversy shall exceed $10, the plaintiff or defendant shall, upon application to the presiding officer, have the right of trial by jury.” Whether this provision of the constitution embraces within its meaning the right of trial by jury in such a case as this, depends altogether upon the legal signification of the word contract; for, at the time of the adoption of the constitution of 1845, it must be conceded that the word contract had a fixed, definite, legal meaning, which was well understood by those who were then engaged in the formation of the organic law of the land.

It could contemplate nothing more than the mutual promises and obligations made and created between man and man, or between the individuals of a community. Whether this case, then, comes within the purview of this

section of the constitution, depends upon what has always been and is still meant by “a contract.” Judge Story defines a contract to be “a deliberate engagement between competent parties, upon a legal consideration, to do, or to abstain from doing, some act.” lie says also, “in its widest sense, it includes records and specialties ; but the term is usually employed to designate only simple or parol contracts.” In this definition, all accredited elementary writers upon contracts concur.

It is therefore used in this sense in the constitution, and it was intended, in that instrument, to guarantee this right to all men who might choose to invoke it in the adjustment of their controversies with each other.

It never could be intended that it might be claimed as a right whenever a Us inota should spring up between a citizen and the government; and especially in a matter in which the government had, in its bounty and beneficence, bestowed a gratuity upon the citizen, and in its grant had prescribed the manner in which that gratuity might be verified and authenticated, in order to its enjoyment by the beneficiary. The appellant in this case can be entitled to no other mode of establishing his right than the precise mode pointed out in the special act. In the 13th

section of the act, in which the method of approval of the certificate is prescribed, when it is adjudged valid, and no appeal is taken, it is clearly intimated that the judge is the trior of the question of the validity or invalidity of the certificate. It speaks of him as “ the judge trying the same.” W e think, therefore, it was never contemplated that this question should be tried by a jury under this act, but that it was a question exclusively for the determination of the judge.

There is an agreed statement of the facts introduced on the trial below, signed by the attorneys for the appellant, and by th’e district attorney. It is not certified by the judge. Legally, that evidence is not in the record. In 9 Texas, 156, this court decided that written agreements of the facts by the parties or their attorneys are not admissible where the state is a party.

But if the evidence was all here, as it is presented in this agreed statement, we see no valid ground in that or the other errors assigned to reverse the judgment of the district court in rejecting the certificate and dismissing the petition. The case is dismissed from this court, and the judgment of the court below is therefore Aeeirmed.