Charles E. Anderson v. Charles Rogan, Commissioner, 93 Tex. 182

BROWN, Associate Justice. This action was brought by the plaintiff against Charles Bogan, Commissioner of the General Land Office, by petition filed in this court, in which the facts alleged are substantially these: There were deposited and filed in the General Land Office certain papers, application rolls, and indexes; concerning the public free school lands belonging to the State of Texas lying in Wheeler County. The plaintiff Anderson was employed by one RT.

White to inquire into and ascertain if certain sections of the public free school land in the said county were open for application to purchase, and to secure permission from the Commissioner to examine the roll or index and applications for purchase of such land in the said county. That plaintiff applied to the defendant, the Commissioner of the General Land Office, for permission to make such examination, but he refused to permit plaintiff, on behalf of the said White, to examine the said applications, roll, or index.

The petition contained many other allegations not necessary to be enumerated; it was full in stating all the facts. Plaintiff prayed that an alternative writ of mandamus issue to the defendant, and that, upon final hearing, a peremptory writ be issued, commanding the said Rogan, Commissioner of the General Land Office, to permit him to make the examination under the rules prescribed by law.

Defendant Rogan filed an answer containing a general demurrer, special exceptions, and a special answer setting up facts showing why he had refused to give his consent for the plaintiff to malee such examination,, It is, however, unnecessary for us to notice any of the pleadings of the defendants, except the general demurrer.

Article 4045 of the Revised Civil Statutes reads as follows: “Anjrone desirous to examine any of the papers, records, or files in the General Land Office shall first obtain the consent of the Commissioner or the chief clerk, in writing, so to do, and an order for the detail of a clerk of said office to be present and superintend such examination.” Articles 4047 and 4048 require that the clerk detailed to superintend the examination shall, before he permits such person to handle the papers or files, indorse on the wrapper or cover a list of the papers contained in the wrapper, with the corresponding numbers thereof, and, after the examination has been completed, the clerk shall examine the papers of the file and see that they correspond with the list on the wrapper and are in place.

If the statute quoted invests the Commissioner of the General Land Office with a discretion in the matter and empowers him to determine whether or not the examination may be made, then the mandamus can not be issued. De Poyster v. Baker, Com., 89 Texas, 155. This proposition needs neither argument nor more authority to sustain it, because it lies at the foundation of the law governing the writ of mandamus.

The requirement that the applicant shall first procure the consent of the Commissioner necesarily implies that he has not the right to make the examination without that consent; and also, that the Commissioner, having the power to consent, must necessarily be invested with authority ■ to refuse consent.

This would seem to be plain enough from the language of the statute itself and to result.necessarily from the very words used; but the provisions prescribing the manner of examination, when consent has been procured, emphasize the fact that the Legislature intended to commit to the Commissioner of the General Land Office the care and custody of the records of the State concerning its public lands, as well as the lands belonging to private individuals, with a very broad, if not an absolute, discretion over the subject of examination made by persons not employed in the office.

Without exception, no citizen of Texas has the right to make any examination of the records of the General Land Office except under the supervision, and, we might say, surveillance of a clerk detailed especially for the purpose of overlooking such examination.

It must be in the presence of the clerk, and not only that, but the clerk must, before he commits to the examiner any of the papers, write a list of them upon the cover, with their corresponding numbers, so as to thoroughly identify each one, and, when the examination has been completed, no matter by whom made, the clerk is enjoined to make a careful examination of the papers, comparing them with the indorsement upon the cover to ascertain that all have been returned safely.

These extraordinary measures indicate clearly that there .was a strong reason for the enactment of these provisions of the law, which, in the opinion of the Legislature, made it necessary that a strict guard and watch should be placed over the record's off the General Land Office. Prior to the year 1873, great liberty was allowed in the examination of the records of the General Land Office, and many valuable papers were missing from the files which should have been there.

About that time, many forged titles to land were placed of record in this State, in aid of which information might have been obtained from that office, and, under these circumstances, the Legislature which assembled in that year enacted a law entitled "An act to better protect the papers, records, and files in the General Land Office,” approved June 3, 1873, which embraced the provisions before quoted, and in addition made it a penal offense to handle or examine any of the records of that office without the ■consent of the Commissioner, which is embraced in

article 117, Penal Code. The surrounding circumstances and the caption of the bill show that the act was passed to meet an imperative demand for protection to the records of that office, and nothing short of the rigid regulations prescribed would have answered the purpose. We can see no reasonable ground to doubt that the Commissioner of the Land Office has the right to refuse permission to anyone to examine any papers in the General Land Office, and that such jierson must resort to the regular methods of getting certified copies or certificates of fact as provided by the law.

In all ordinary cases, this character of information would be sufficient. We would not say that there might not arise cases in which the Commissioner of the General Land Office would be required to permit an examination of the records; but the petition in this case presents no such state of facts. If the records of'Wheeler County did not show the land to be upon the market, it could not be the subject of application to purchase; if shown by such records to be upon the market for sale, any citizen who possessed the prescribed qualifications could make application therefor.

But it is unnecessary to add reasons for the decision at which we have arrived. It is sufficient for us that the statute commits this matter to the discretion of the Commissioner of the General Land Office, and this court has no power to compel him to give that consent. The application for writ of mandamus is therefore refused. Writ of mandamus refused.