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Milam County, Texas

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Milam County Early Court Records


Texas Supreme Court

Cases decided by the Supreme Court of the Republic of Texas, which sat between 1840 and 1844, are reported in James Wilmer Dallam’s Digest of the Laws of Texas: Containing a Full and Complete Compilation of the Land Laws; Together with the Opinions of the Supreme Court, a one-volume reporter.

From 1840 to 1844 Inclusive

Cases Appealed from Milam County, Texas

January Term, 1840

Board of Land Commissioners of Milam County v. William W. Bell, Dallam 366 (Tex. 1840).

1. Mandamus – will not lie, when – Mandamus will not lie where the party has another legal and specific remedy.

2. – where there is a discretion – Where there is a judicial discretion vested in an inferior tribunal, mandamus will not issue to control its judgment.

3. – lies to compel court to proceed – But it may issue commanding such inferior tribunal to proceed to judgment, without directing what judgment shall be given.

4. – lies to compel issuance of land certificate – It was competent for the district court to issue a mandamus to the board of land commissioners, commanding them to issue a certificate in a particular case.

5. – when peremptory writ should issue – But a peremptory mandamus should not issue in such case until the board has refused to carry out the judgment of the court.

6. Colonization Laws – in force at date of declaration of independence – At the date of the declaration of the independence of Texas the colonization laws of Coahuila and Texas were not in force, except so far as related to contracts in existence, or to families who had arrived previous to the 2d of May, 1835.

7. – grant to colonist arriving in 1836 – A colonist, the head of a family, arriving in Texas in October 1836, was not entitled to more than a conditional grant of 1,280 acres of land.

8. Public Domain – Upon our separation from Mexico all the vacant domain belonging to that government became the property of the people of Texas, not individually, but as a nation. Per Jones, J.

9. – in case of conquest – Where a country is conquered the vacant lands become the property of the nation in general, and all rights of individuals not previously acquired are excluded. Per Jones, J.

10. – right of nation to dispose of – The nation being the sole mistress of the property in its possession, after revolution and the establishment of a new government may dispose of it as she thins proper.

11. – vested rights, effect of revolutions – Although revolutions do not divest vested rights, yet such alterations in government as changed its past political relations operate as a repeal of all laws previously existing so far as they may be construed to impart rights emanating from the government after revolution.

12. – declaration of independence – The declaration of independence established the sovereignty of Texas, and gave the government entire control over its vacant domain.

13. Head of Family Arriving in 1836 – The head of a family emigrating to Texas in October 1836, is not entitled to land under the 10th section of the constitution of the republic, nor under the law of December 22, 1836, nor under the colonization laws of the previous government, but can claim 1,280 acres under the law of December 14, 1837.

This cause came up upon appeal from the district court of Milam county. The facts stated in the transcript of the record show that Bell applied to the board of land commissioners of that county, claiming a certificate for one league and one labor of land as his headright. It is in proof that he was the head of a family and that he emigrated to Texas on the – day of October 1836. The board refused to grant him a certificate for the quantity of land claimed; from which decision Bell appealed to the district court. The facts as stated were admitted and the cause submitted to the court, who determined that Bell was entitled to a league and labor of land, and awarded a peremptory mandamus against the said board of land commissioners commanding them to issue to Bell a certificate for the same. From this decision on appeal was taken to this court.

The questions which present themselves are:

First. Did the district court err in awarding the mandamus?

Second. Is Bell entitled to a league and labor of land by law?

It is clear that a mandamus will not issue where the party has another legal and specific remedy. Where there is a judicial discretion vested in an inferior tribunal, it cannot issue to control its judgment. It may issue commanding such tribunal to proceed to judgment, but cannot direct what judgment shall be given. In this case, however, the mandamus seems to have had no other object than to order the board to issue a certificate, not upon its own, but upon the judgment of the court, which we hold to be competent; but a peremptory mandamus should not have issued until the board of land commissioners had refused to carry out the judgment of the court.

Upon the second question, whether Bell was entitled by law to a certificate for a league and labor of land, it has been contended by his counsel that the colonization law of Coahuila and Texas was in force until repealed by the passage of the land law by the congress of Texas; that the laws of the consultation [367] declared them in existence; that the constitution ratifies the laws of the consultation, etc.

The attorney general contended that the adoption of the constitution was a repeal of the colonization laws; that the consultation, having declared themselves a part of the Mexican republic, had no right to pass laws disposing of the public domain.

It is unnecessary for the court in this case to decide upon the validity of the laws of the consultation, or what force and effect they should have; as the 15th article of the plan and powers of the provisional government, which is relied upon by the counsel for Bell, refers to laws that then existed; and if it be found that the colonization law has been repealed, then it follows that no rights were conferred by that article. The decree, No. 190, of the congress of Coahuila and Texas, passed 28th April 1832, sec. 38, repeals the colonization law of March 1825, and substituted another colonization law, changing the conditions and reducing the quantity of land allowed, to half a league, and this only upon condition that the head of the family should have at least one hundred head of cattle and horses, or six hundred head of small stock; stating, however, that no change should be made with respect to contracts which the executive had ratified, etc. By decree No. 272, of the congress of Coahuila and Texas, article 29, passed 26th March 1834, this law was also repealed except so far as related to empresarios and other contracts in existence.

By decree No. 309, it was declared that all families then residing in Texas should be entitled to the portions of lands designated by the colonization law of 1825, provided they possessed the qualifications required by that law.

It is clear, then, that at the date of the declaration of independence the colonization laws were not of force, except so far as related to contracts in existence, or to families who had arrived previous to the 2d of May 1835.

The constitution declares that all persons who resided in Texas on the day of the declaration of independence should be entitled to land in the proportions therein stated, but made no provisions for allowing portions of lands as headrights to any who should arrive afterwards.

By the 24th section of an act, passed by the congress of Texas on the 22d December 1836, it is declared that every emigrant who arrives in this republic from and after the first day of January (then) next, and who was the head of a family, should be entitled to a conditional grant of twelve hundred and eighty acres of land. By this law those who arrived in Texas after the date of [368] the declaration of independence, and before the first day of January succeeding, were not provided for.

This law, it will be recollected, never went into operation as contemplated, when it was passed, but was superseded and repealed by another law of congress, passed 14t December 1837. By the 29th section of the latter law, it is declared that every volunteer who arrived in this republic after the 2d of March 1836, and before the first day of August 1836, and had received, or might received thereafter, an honorable discharge, should receive the quantity of land which by that act was secured to original colonists. In the same section it is also enacted that every person who had arrived in Texas after the declaration of independence, and previous to the first of October 1837, if the head of a family, etc., should be entitled to a conditional grant of twelve hundred and eighty acres of land. It is not contended that Bell had received an honorable discharge, or that he had even arrived here previous to the first of August 1836.

From a view of all the laws upon the subject, we are of opinion that the appellee, Bell, was not entitled to more than a conditional grant of twelve hundred and eighty acres of land.

It is therefore ordered that the judgment of the court below be reversed and the case remanded, in order that the appellee may obtain his certificate for the twelve hundred and eighty acres of land according to law.

[Opinion delivered by Chief Justice Rusk, and concurred in.]

Judge William J. Jones delivered a separate opinion in the forgoing case, to wit:

Land Commissioners vs. Bell

I concur fully with the court that the appellee (Bell) in this case is only entitled to twelve hundred and eighty acres of land. It appears to me to be unnecessary to step behind the declaration of independence to render the reasons for this judgment. As soon as our separation from Mexico took place, all the vacant domain belonging to that government became the property of the people of Texas, not individually, but as a nation. Vatel’s Law of Nations lays down the doctrine (which has never been doubted), where a country is conquered, the vacant lands become the property of the nation in general and excludes all rights of individuals not previously acquired. He adds further that the nation, being the sole mistress of the property in its possession, after revolution and the establishment of a new government may dispose of its as she thinks proper. I do not quote literally. The principle, then, being settled [369] that the nation, or the government which separates from another nation or government, succeeds to all the vacant domain within its limits, the doctrine is equally clear that she can dispose of it as she pleases. Although revolutions do not divest vested rights, yet such an alteration in government as changes its past political relations, operates as a repeal of all laws previously existing, so far as they may be construed to impart rights emanating from the government after revolution. The declaration of independence established the sovereignty of Texas and gave the government entire control over its vacant domain. The 10th section of the general provisions of the constitution allots to all colonists then in the country, who had not received donations of land, their defined quantities. The claimant in the present case was not then in the republic. The law of December 1836, looked to those who should come into the country after the first day of January 1837, and did not provide for those who emigrated between the date of the declaration of independence and the first day of January 1837. The law of the 14th December 1836, in the following terms: “Every person who has arrived in this republic since the declaration of independence, and previous to the first day of October 1837, who is a free white person and the head of a family, and who actually resides within the government with his family, and shall be entitled to a conditional grant of 1,280 acres of land, by paying the fees of office and surveying.” It is under this law that the appellee (Bell) must claim.

[Signed, William J. Jones.]

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Created on 26 May 2004 and last revised on ___________ 2004