
    Rufus K. Hosner v. John DeYoung, Surveyor, etc.
    Appeal from Galveston County.
    A. state cannot be sued in her own courts without her own consent, and then only fn the manner indicated by that consent.
    A mandamus is not a process that can be resorted to against the state without its consent. [2 Tex. 497, 594; 5 id. 418.]
    An application to the court for a mandamus to compel a district surveyor to make a survey of a certain tract of land by virtue of a land certificate is in effect a suit against the state and cannot be maintained.
    Where the party seeking to have such survey made admitted that the certificate in question had been fraudulently obtained by the fraud of the board of land commissioners who issued the same, and that the person to whom the same purported to have been issued was a'fictitious person: Held, that every supposed right acquired under and by such certificate was null and void, and that the assignee of the same had no standing in court.
    The different acts of the congress of Texas to detect fraudulent land certificates are valid and not repugnant to the constitution of the late republic, and the claims to be acted on by those laws were only imperfect obligations and could never be enforced against the government (in whom the fee was) but by and with its consent. [3 Tex. 497; 20 id. 613; 23 id. 98; 28 id. 687.]
    The government has the right in all cases where the fee to the land remains in herself, to establish, alter and modify such regulations, from time to time, as may be deemed necessary in maturing an imperfect into a perfect title. [14 Tex. 213; 25 Tex. Sup. 408.]
    At the November term, 1846, of Galveston district court, the appellant filed bis petition, alleging that he was the legal owner of a certain land certificate which was issued by the board of land commissioners from San Augustine county in 1838, to one John S. Duncan, and that the same had been duly assigned and transferred to the petitioner; that he had made application on the 24th November, 1846, to the appellee, who was the district surveyor of Galveston district, to survey a certaip tract of land upon and by virtue of said certificate, which lie had absolutely refused and declined to make or to take any steps whatever in performance of his duty resulting from such application. The petitioner prayed for a rule to be served upon the said district surveyor, as well as the district attorney for the first judicial district, to show cause why a peremptory writ of mandamus should not be issued against the said surveyor, commanding him to make and execute the survey applied for and demanded by the petitioner.
    The following is a copy of the certificate referred to:
    “ No. 838. This is to certify that John S. Duncan has appeared before the board of land commissioners for the eountv of San Augustine and proved, according to law, that he emigrated to Texas in. 1831, and that he is a married man and entitled to one league and one labor of land, upon the condition of paying at the rate of three dollars and fifty cents for each labor of irrigable land, two dollars and fifty cents for each labor of temporal or arable land and one dollar and twenty cents for each labor of pasture land which may be contained in the survey secured to him by this certificate.
    “Given under our hands this the 3d day of July, 1838.
    “Ohiohestee ChapliN, President,
    “Nathl. Hunt, Associate Commis’r.
    “Attest, JohN C. Brooes, Clerk.”
    The following is a copy of the pleadings in the cause:
    “ The defendants say that the surveyor for the district aforesaid refused to make the survey applied for,
    “ 1st. Because they say that the supposed act mentioned in the said plaintiff’s petition, viz.: The act entitled “ An act to reduce into one act and to amend the several acts relating to the establishment of a general land office,” alleged to have been passed on the 14th December, 1837, is unconstitutional and void, in this, viz.: It was never approved or signed by the president of the then republic of Texas, but on the contrary was vetoed by him; and the said act was never passed in the manner prescribed by the constitution of the said republic; for they say, that when the said act was vetoed by the president, it was returned to the house in which it originated with his reasons for not approving, and for vetoing the same, which said reasons were never spread upon the journals of said house before the said bill was reconsidered and finally acted upon by said house; and the said defendants further say, that the said act being so disapproved and vetoed, the vote on the reconsideration and final action of the senate upon the same was not recorded by ayes and noes; and this they are ready to verify.
    r 2d. “ Because they say that subsequently to the passage of the aforesaid act, viz.: On the 29th day of January, 1840, ‘An act to detect fraudulent land certificates,’ etc., was passed by the congress of the said republic, and a board of commissioners, as therein provided for, was duly elected for the county of San Augustine; that said board discharged their duty in said last mentioned county, as required by the provisions of the last mentioned act (being first commissioned and sworn as the law required and fully authorized to act under the law), and that they failed and refused to report to the commissioner of the general land office the certificate described in the plaintiff’s petition as one which had been granted to a legal claimant, and also failed and refused to report said certificate to the said commissioner as either genuine or legal; and they further say, that the surveyor was by law prohibited under the pains and penalties of the act prohibiting the location of fraudulent land claims from making a survey upon the certificate described in the plaintiff’s petition, until it should be recommended and reported as aforesaid; and this they are ready to verify.
    3d. “ Because they say that the certificate upon which the surveyor was required to make a survey is fraudulent and void, and is based, upon a combination of the board of commissioners who issued the same, arid others, among whom was the plaintiff, to perpetrate a fraud upon the late republic; they say that no witness was ever examined to prove that any person was entitled to the said certificate, and that John S. Duncan is a fictitious person; and this they are ready to verify.
    “ The defendants having inspected the alleged £ sundry assignments, transfers and conveyances in law,’ referred to in the plaintiff’s petition, say that the same consist alone of a paper purporting to be an assignment from the said John S. Duncan, indorsed upon the said certificate, but they deny that the same does or could vest any such right or property in the plaintiff as is claimed by him in or by his petition, because they say that the said John S. Duncan is a fictitious person, and is consequently incapable of executing any such assignment.
    “And the said plaintiff, as to so much of the answer filed by the defendant to his petition as alleges that the act entitled an act to reduce into one act and amend the several acts relating to the establishment of the general land office is unconstitutional and void, says that the same was passed in the manner prescribed by the constitution of the republic of Texas; that the same has since its passage been repeatedly recognized as a good and valid law by divers acts subsequently passed by the congress of the said republic, and also by the constitution and the statutes of the state of Texas. And he says that the same is a constitutional and valid law, and is in fact the foundation of the titles under which most of the occupied lands in the state of Texas are held.
    “And the plaintiff further says, that' waiving all legal advantage that might accrue to him as assignee of said certificate in his petition described, saving to himself his right to maintain his present suit, notwithstanding that the constitution and laws of the state of Texas prescribe another mode of proceeding, he admits that the defendant could prove by his witnesses in court the following facts alleged in said defendant’s answer, if in the judgment of the court said facts be legal and competent evidence on the trial of the issues in this cause; but the legality and competency of such evidence, and any legal and proper effect thereof, in or connected with the issues aforesaid, he wholly denies. The following are the facts contained in said answer, to which the foregoing conditional admission applies: That no witness was ever examined to prove that any person was entitled to the said certificate, and John S. Duncan is a fictitious person. But without this, he denies that the said certificate is fraudulent or void; and he also denies that he had any privity or combination with the board of land commissioners, as is charged in said answer.
    “And as to so much of said answer as alleges that the board of commissioners, elected and qualified under an act entitled an act to detect fraudulent land certificates, etc., failed and refused to report to the commissioner of the general land office the certificate described in the plaintiff’s petition, as genuine and legal, the plaintiff admits the same to be true. But as to the act last above referred to and the other act entitled an act prohibiting the location of fraudulent land claims, passed the 5th February, 1840, and pleaded by the defendant in his said answer as an excuse for refusing to make the survey applied for in this case, he says that each and both the said acts are and were from the beginning unconstitutional and void by virtue of the provisions of the respective constitutions of the republic of Texas, and the state of Texas and the United States of America.
    “And as to the assignment indorsed upon said certificate, the plaintiff says that the same is good and sufficient in law to entitle him to maintain his present action, and that no proof is admissible to show that John S. Duncan, therein mentioned, is a fictitious person, as is alleged by the defendant in his answer.”
    The cause coming on to be heard, it was ordered and adjudged that the rule to show cause be set aside and discharged, from which judgment this appeal was taken.
    
      Ovid F. Johnson, Elenezer Allen and William G. Hale, for appellants.
    
      John W. Harris, Attorney General, for the appellee.
   LirscoMB, J.

In this case I believe the judgment of the court below ought to be affirmed for the following reasons:

1st. Because a m,andamus is not a process that can be resorted to against the state without its consent, and that this suit is in effect against the state; that no state can be sued in her own courts without her consent, and then only in the manner indicated by that consent.

2d. Because it is admitted that the certificate sought to be located and surveyed was fraudulently obtained by the fraud of the board of land commissioners from which it issued, and that the name of Duncan, the pretended assignor, is a fictitious name. That this fraud annulled and destroyed everything done, and every supposed right acquired by such fraudulent act of the board of land commissioners, and that the certificate so obtained could give the assignee no standing in court.

3d. Because the different acts of the congress of the republic of Texas to detect fraudulent land certificates are valid, and not repugnant to the constitution of Texas, under which they were enacted. That the claims to be acted on by those laws were only imperfect obligations, and could never be enforced against the government but by and with its own consent.

That the fee being in the government until it passes into a perfect grant, no suit can be sustained to compel the government to divest itself of the title until the political authority has prescribed the mode in which it shall be done; that in all such cases the political authority can establish, alter and modify such regulations from time to time, as may be deemed necessary in maturing an imperfect into a perfect title; that this control is necessary to the protection of the public domain, and a consequence resulting from the fee being in the government.

That this was the construction given to the powers of the congress of the republic, acting on imperfect claims, by its highest judicial tribunal, is manifested in the cases of the Board of Land Commissioners of Nacogdoches County v. Riley, and in Walling v. The Republic, and the same doctrine has been held in this court in the case of Trimble et al. v. Smithers, and in Jones v. Menard.

4th. Because the plaintiff not having pursued his remedy in the anode in which the state.consented to be sued, he cannot be permitted to seek it in any other way.  