Bacon & Bates v. Wm. J. Russell, 57 Tex. 409

Stayton, Associate Justice. The appellee claims the land in controversy under a patent which issued upon a land certificate which he received for six hundred and forty acres of land, under

an act entitled “An act for the relief of Wm. J. Russell,” passed February 19, 1873, which reads as follows: “ Be it enacted by the legislature of the state of Texas, That the commissioner of the general land office be and he is hereby authorized to issue to Wm. J.

Russell, one of the survivors of the Texas revolution, a land certificate of twelve hundred and eighty acres for his services one year in the army of Texas, during the years 1835 and 1836, and a further certificate of six hundred and forty acres for his participation in the campaign against Bexar in 1835.” The derivation of his title is set out in his petition, and as he must recover upon the strength of his own title, it becomes necessary to examine its validity, however gladly we would avoid such examination, both parties claiming under the same title, were it not essential so to do.

The constitution in force when the act of February 19, 1873, was passed, provided that “The legislature shall not hereafter grant lands to any person or persons, nor shall any certificates for land be sold at the land office, except to actual settlers upon the same, and in lots not exceeding one hundred and sixty acres:” Const. 1870, art. X, sec. 6. This

section of the constitution evidently prohibited not only the direct grant of land, but it prohibited every step which could ultimate in a grant of land, to other than an actual settler, and to such limited the grant to one hundred and sixty acres. To avoid the effect of this constitutional prohibition, it is claimed that the act in question but provides the means by which a prior right to a bounty warrant for six hundred and forty acres of ■ land might be enforced, and that the right was secured to the appellee by the act of 21st December, 1837 (Pasch. Dig., 4059-4064), and that this was never repealed.

It does not clearly appear that the act of 21st December, 1837, covered the same class of bounties as that which the legislature attempted to confer upon the appellee; for that act was applicable only to those persons “ who entered Bexar from the morning of the fifth to the tenth of December, one thousand eight hundred arid thirty-five, and who actually took

part in the reduction of the same.” The act under- which the appellee claims does not show that he rendered the specific services for which the bounty was given by the act of 21st December, 1837, but upon its face appears to be a bounty “for his participation in the campaign against Bexar in 18351” Any participation in the campaign against Bexar in 1835 would • satisfy the act now under consideration, but it would not satisfy the act of December 21, 1837; for that gave the special bounty only for the specific services named in the act.

Other services during the campaign against Bexar in 1835 may have been as meritorious as those named in the act of December 21, 1837; but those only could claim the bounty given by that act who came within the spirit of its language. We know historically that the campaign against Bexar did not begin on the 5th and end on the 10th of December, 1835; hence the implication does not arise from the fact that W. J.

Bussell may have rendered services in the campaign against Bexar in the year 1835, that he entered Bexar from the morning of the 5th to the 10th of December, 1835, and that he actually assisted in the reduction of that place. • The ordinary bounty for military services rendered in 1835 were under the act of November 24, 1835 (Pasch. Dig., 4035); the act of December 5, 1835 (Pasch. Dig., 4037, 4039); the act of December 14, 1835 (Pasch. Dig., 4041), and the act of December 14, 1837 (Pasch.

Dig., 4057, 4058), which last was no doubt explanatory of preceding acts, and probably regulated the entire matter of issuing bounty warrants after its passage, for military services, for which special bounties were not provided. It not being shown that under any former law the appellee would have been entitled to a certificate for six hundred and forty acres of land as a special bounty for services at Bexar, it must be held that the inception of, and sole basis for, his right rests upon the act of February 19, 1873.

It is not perceived, however, if the appellee brought himself within the letter of the act of December 21, 1837, that it would better his condition. It is true that the act of 21st December, 1837, was never in express terms repealed; but it is believed that the provision of the constitution referred to had that effect, if it had not been practically repealed before the adoption of the constitution.

The grant of bounty certificates by the act of December 21,1837, was a mere gratuity, based upon no prior promise for service to be rendered, and the government could have withdrawn the power to issue them at any time" without violating any rule of constitutional law. From the date of the statutes which authorized the issuance of such certificates until the act of December 15, 1859, various acts were passed, to enable all who were entitled to receive the bounty of the government to obtain their certificates. Pasch. Dig., 1146, 1155, 4074, 4075, 4078, and note 437.

In many of the acts a time within which application should be made was named, with a declaration that all who did not apply for their certificates should be barred. So stood the law at the time of the adoption of the constitution of 1870. Ample time had been given to all who were entitled to receive the bounty of the government, and those who had not done so were barred.

In the absence of the constitutional provision referred to, the legislature might have removed the bar, and have given further time and means to acquire the certificates, as had been so often done before; but the right having ceased, and the constitution having declared that the grant should not be made, the legislature was powerless to revive the right which had once existed, but had been lost by the failure of the party to apply for and receive the same from some of the officers of the government authorized from time to time to issue the certificates.

If the certificates had been issued but not located, the constitution of 1870 fixed a period after which they could not have been located. Const., art. X, sec. 4. The bar thus fixed for the location of land certificates was removed by the present constitution and a further time given. Const., art. XIV", sec. 2.

The time thus given has now expired; and certificatés not located and returned to the land office within the time prescribed are now barred, and the legislature might as well undertake to authorize -parties holding such barred certificates now to locate and have them patented, in the face of the constitution, as for the legislature in 1873 to direct the issuance of land certificates in defiance of the constitution then in force. Thesé are examples of the exercise of the right by the state to prescribe a bar for even issued certificates, and it was but the exercise of an undoubted power.

We are of the opinion that the act of February 19, 1873, under which the appellee claims, is in violation of the constitution then in . force, and consequently void; hence he has no title whatever to the land in controversy. This view of the case renders it unnecessary to inquire whether the property was subject to execution or not, further than has been incidentally done. The judgment is reversed and the cause is dismissed.' Eeveksed and dismissed. [Transferred to Tyler, and decided November 10, 1882.]