
    The State v. Delesdenier.
    The fourth section of the third article of the Constitution, which declares that the style of the (ah) laws shall be, “ Be it enacted by the Legislature of the State of Texas,'1 is inapplicable to a “ resolution, order, or vote,” as contradistinguished from a “ bill.” '
    The right of the State to appeal*, by her proper law officer, in her own courts, and prosecute suits in her own behalf, is an. incident of her sovereignty not dependent upon any statute, and to be exercised whenever her laws are infracted or her rights invaded.
    A joint resolution, imposing a particular duty upon any officer of the State, isa public statute, of which the courts are bound to take judicial notice.
    Where the Slate sues for the recovery of lands which she claims never to have granted, it is sufficient to allege title in herself in general terms.
    The land scrip issued to William Bryan, under and by virtue of the joint resolution of December 6,1836, gave the holder no preference over the holder of any other scrip; the holder of it had no claim to any particular portion of the public lands, but a general lien upon all tlie lands, to be satisfied out of such portions as were unappropriated at the time he made his selection or location. (Note 15.)
    The condition of eminent domain remaining in the Government is implied in all cases of the issue of land scrip. &c., and by virtue thereof the Government may, without violating the obligation of contracts, reserve any portion of the public domain from location, if enough remain to satisfy outstanding claims.
    The repealing clause contained in the 39th section of the land law of December 14,1837, was limited to the previous acts which related to the establishment of a General Land Office; it did not, therefore, repeal previous laws exempting islands, &e., from location, and those laws are still in force. (Note 16.)
    Islands having been reserved from location and sale, unless special authority for that purpose was given by Congress,were, from that moment, severed from the 177J public domain. No general repealing clause contained in subsequent laws can be held to apply to tlie act appropriating them to a particular purpose. (Note 17.)
    The issuing of a patent is a ministerial act, and must be performed according to law; if it is issued against law, it is void, and those claiming under it acquire no right. (Note 18.)
    Appeal from Galveston. This suit was commenced in the Galveston District Court, at the Spring Term, 1840, by the State of Texas, through her attorney general. The petition alleged that John Delesdenier, a resident of the county of Galveston, had, with force and arms, entered upon and taken possession of a certain tract or parcel of land and the buildings thereon, known as Brewster’s, belonging to the State of Texas, “and is now claiming the same as his own property, and is holding, and for the last three years has held, possession thereof adversely to said State; that said land is situate,d in the county of Galveston; is a portion of tlie island of Galveston, and contains twenty-one and sixteen hundredth acres, being designated on the map made for John S. Sydnor by William H. Sandusky as lots number three and four, and known as that part of the fourth section of the survey of said island.” The petition prayed that the defendant might he cited to answer the petition ; that he might be compelled to restore possession of the premises, and he enjoined from ever taking possession of or disturbing the rights of the State in relation to the same.
    The defendant excepted to the petition, and answered by a general denial of the alleged trespass.
    The exception was overruled by the court, the case submitted to a jury, and a verdict returned in favor of tlie defendant, upon which judgment was rendered.
    A motion for a new trial was made, on the ground that the verdict of the jury was contrary to the law and evidence; this motion was overruled by the court, and the plaintiff appealed.
    On the erial it was proved, on the part of the State, that the defendant was in possession of the land described in the petition, and had been in possession thereof for and during the time alleged in the petition; that he claimed to hold it in right of his wife.
    The defendant read in evidence a patent from the Republic of Texas, issued in favor of Levi Jones and Edward Hall; the patent was for 18,215 acres of land, granted by virtue of twenty-eight and a half sections of scrip, issued on tlie 10th of December, 1836, to William Bryan; the patent recited that the land therein described was situated on the island of Galveston. The defendant also read in evidence a decree of partition made by the District Court of Galveston county, between Jones and Hall, by which the land in controversy was set apart to Jones, a deed from Jones to Sydnor & James, and a deed from Sydnor & James to the wife of the defendant. Id was proved that the land in controversy was embraced in the above-described patent and subsequent mesne conveyances..
    On the, trial tiie plaintiff objected to the introduction of the patent to Jones and Hall as evidence; the objection was overruled, and the plaintiff excepted. At tlie instance of the plaintiff, the court instructed the jury—
    “ 1st. That whenever a tract of land shall have been once legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from tlie mass of public lands, and no subsequent general law or proclamation or sale would be construed to embrace it, or to operate upon it, although no other reservation were made of it.
    “2d. That any defect appearing upon the face of a patent, vitiating it, is a notice to all persons claiming under it, and they are not deemed to be innocent purchasers.”
    The court refused to give the following instructions asked by the plaintiff:
    “ 1st. That any patent issuing for locations made upon islands since the 10th of December, 1836, is void.
    
      “2d. That the patent offered by the defendant amounts to no evidence that the title to the lands called for by it was divested from the Government.”
    At the instance of the defendant the court charged—
    “ 1st. That a patent issued by the proper officers of the Government is prima facie evidence in favor of a title derived under it, until it be vacated or set aside.
    “2d. That every officer of the Government is presumed to perform the duties of his office according to law, until the contrary is shown by proof.
    “3d. That a patent for land, issued by the proper officers of the Government, is prima faeie evidence of a title derived under it. and cannot be attached in a collateral way, except for fraud in procuring its issuance.
    “4th. That fraud is not to be presumed, but must be'proved.”
    
      A. J. Hamilton, for appellant.
    The first assignment of error is the only one that will bo discussed, as the judgment of this court, upon the question there raised, will determine the case. We say that the court below erred in admitting' in evidence the patent to Jones & Hall.
    A patent issued without authority of or contrary to law is void. (Polk’s Lessee v. Wendal, 9 Cr. R., 99; Clarke v. Graham, G Wheat. It., 577; Stod-dard v. Chambers, 2 How. U. S. R., 2S4; 10 Bac. Abr., p. 374, (head, Void and Voidable;) aud see, particularly, Wilkins v. Dinsman, 7 How. U. S. R., 89.)
    The statement of facts shows the land in controversy is on Galveston Island ; the patent recites the fact, and was issued on the 10th day of December, 1836.
    On the 10th day of December, 183G, the Congress of the Jate Republic passed a joint resolution “authorizing the President to negotiate a loan for twenty thousand dollars,” tiio 3d section of which is in the following terms :
    
      '■'■And be it further resolved, That all islands belonging to this Republic shall be, and are hereby, reserved for the Government use, excc.pt the President be authorized specially by Congress to sell them.” (Hart. Dig., art. 1780.)
    Tims, then, the islands were reserved from location, by act of Congress, prior to the issuance of the patent; and, unless this reservation was repealed by some subsequent act, the patent was issued contrary to law, and is void.
    It is contended that this reservation was repealed by the act of the 14th December, 1837, (Hart. Dig., p. 580;) entitled “an act to reduce into one act and to amend the several acts relating to the establishment of a General Land Office.” .The last clause of the 39th section of this act is in the following terms: “And all laws heretofore enacted on the subject of public lands shall he. and they arc hereby, repealed.” (Hart. Dig., art. 1875.)
    This does not repeal the joint resolution of the 10th December, 183G, reserving islands, for the reasons following:
    1st. The acts referred to in the caption of the act of 1837 are the only laws to which the repeal is intended to apply. It will be found, from an examination of tills act, that its only object ivas to perfect and reduce into system the various acts relating to the establishment of a General Land Office, and not to change any previous law defining what constituted the public domain. The repealing clause could only be in reference to acts the provisions of which were incompatible with or contrary to that act. The court will look to the object the Congress liad in view, the remedy intended to be afforded, and the mischief intended to be remedied. (25 Me. R.; 3 Cow. R.; 3 Mo. R.; l.Mo. R.. 147 ; 2 Pot. R., 602 ; lo Johns. R., 358; 1 Pet. R., 04.)
    The. object in view by the Congress may be gathered from the provisions of the act. 'Títere is no uncertainty or ambiguity in the provisions of the act. When considered as a whole, or eacli provision taken separately, it will he seen that the only object or intention was to provide a system for the distribution of the public lands to legal claimants.
    If there is any ambiguity or uncertainty as to the laws which were intended to be repealed or changed by it, we have a right to look to the caption of the law to determine what was intended. (1 Kelly K., 157; 9 Port. R., 200; 2 Bail. R., 334; 1 Ham. R., 469; 1 Pick. R., 24S; 2 Cr. R., 358, 380; 0 hi., 358, 3S6.)
    2d. The reference, in the repealing clause, to previous [®U] laws is controlled by the details of the act. It is a well-established rule in the construction of statutes that the details of one part of an act may contain restrictions regulating and controlling general expressions used in another part of the same act. (Pennington v. Coxe, 2 Cr. R., 33.)
    3d. All statutes upon the same subject are to be interpreted together, and such a construction given to them (consistent with the words used) as will avoid the mischief and promote the policy and objects of the different acts. (1 Sm. & Marsh. R., 590.) By the observance of this rule, the act of 1837 establishing- a General Land Office and the previous acts reserving the islands may he made to harmonize, and the policy of the Government be preserved.
    4th. Statutes, in pari materia, should be taken into consideration in construing a law; and if it can be gathered from a subsequent statute, in pari materia. what meaning the Legislature attached to the words of a former statute, this will amount to a legislative declaration of its meaning, and will govern the construction of the first statute. (United States v. Freeman, 3 How., U. S. R., 556.)
    The act of the 20th January, 1840, adopting the common law of England, and to repeal certain laws, &c., provides, in the 2d section, for the repeal of “all laws in force in the Republic prior to the 1st of September, 1836,” except certain laws mentioned, among which are, “ such laws as relate to the reservation of islands and lands, and also of salt lakes,” &e., &c. (Hart. Dig., art. 127.)
    This is sufficient to satisfy any one of the fact that the Congress that enacted this law did not regard the act of the 10th December, 1836, reserving islands as being repealed by the act of 1S37 organizing a General Laud Office. If the Congress had not supposed that the islands were reserved by the act of the 10th December, 1830, they would have felt but little interest in preserving a supposed law of the previous Government upon the subject. There was some object in excepting out of the general repeal this supposed law. If the Congress [8had considered it doubtful as to the existence of any such law, and, at the same time, liad believed that there was no act of the Republic reserving islands, then they were guilty of having enacted the grossest nonsense. For, why would they seek to keep in existence a law of the previous Government reserving islands, while a statute of the then Government upon the subject stood repealed ? The object of the Congress was, doubtless, to pre vent any claim the origin of which was prior to the act of the 10th December, 1836. It was a legislative construction of all the previous laws bearing upon the islands; it was a declaration of what was intended by the previous laws, and must prevail.
    5th. In the case of Pennington v. Coxe, (2 Cr.,R., 33,) it is said: “Where fundamental principles are overthrown, where the general system of the law is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects.” Would not the construction of the repealing clause of the act of 1837, contended for, be a departure from the general policy of the Government? It is said that it repealed all laws theretofore enacted upon the subject of public lands. How, if tlie repeal only operated on the laws reserving islands, perhaps we would not be authorized to say that auy great change was wrought in the previous policy of the Government; but, unfortunately for the appellee, to make the repeal broad enough to cover his case, every law pi-eviously enacted upon the subject of public lands must staud repealed. This would have been a great and radical change in the policy of the Government. All previous laws upon the subject of bounty lands would have been repealed. It is impossible to believe that such was the intention of the Congress.
    6th. The act of the 10th December, 1836, reserving islands is not “An act upon the subject of public lands,” and would not be included in the repealing clause of tiie act of 1S37, even if the construction contended for be correct. When laws upon tiie subject of public lauds are referred to. coinniou sense would determine that those laws, and those only, which relate to the whole of the public domain are included. A law setting apart a portion of the public domain, and reserving it from appropriation, is not a “law upon the subject of public lands,” within the meaning of tiie act of 1837.
    7th. Tiie construction contended for would repeal every statute previously enacted upon the subject of bounty lands. This would bo no argument, if it were clear that the Congress intended to repeal them. But tiie intention of the Congress is the question, and to arrive at this, we may look to tiie motives which influenced the act — to the policy and history of the Government upon tiie subject of lier public lands, and to tiie consequences that would result from the one construction or the other.
    Was it the intention of the Congress of 1837 to repeal those laws? Has it ever been supposed by any of the departments of tiie late Republic or present State Governments that they were repealed? And are ail rights acquired under these acts since the 14th December, 1837, to he swept away? It is vain to say that tiiese are not laws upon the subject of public lands. They are “laws upon the subject of public lands,” but they are not the laws intended to be repealed by the Congress of 1S37. They aré within the language, but not within the spirit and meaning, of the repealing clause of tiie act of the 14th December, 1837. A decision by this court such as is contended for by the counsel for the appellee would present a scene of confusion and distress such as has never been witnessed in any Government having a written constitution, and laws.
    8th. The act of the 10th December, 1836, reserving the islands was an appropriation by the Government. The islands were severed from tiie mass of Llie public domain, and could only be reattached by positive and express enactment. No general law, however broad in its terms, would he construed to embrace it.. (Jackson v. Wilcox, 13 Pet. R., 498.)
    Thus it is established, that the patent which was admitted [§4] in evidence was void — that it showed upon-its face that it had issued contrary to law.
    
      Webb fy Oldham, for appellee.
    ■ I. There are no special grounds of demurrer assigned ; the demurrer must therefore be regarded as a peremptory exception, which contests either the right to sue or the rig-lit to maintain the action upon the grounds alleged in the petition. It ought to have been sustained on either ground.
    II. The attorney general has no authority to sue. ■ We contend that virtute officii he had no authority to bring a suit in the name of and for tiie benefit of the Slate, unless specially directed to do so by .some legislative enactment. He is not the political authority of tiie State, nor is he its guardian to determine when its rights of property have been invaded, unless when specially directed by legitimate power to investigate those rights, and to take the necessary legal steps to preserve them. So thoroughly was the late attorney general impressed with this legal truism, that he did not pretend, even in this case, to possess tiie right to sue in virtue of his office, but lie planted himself upon tiie joint resolution of February 21, 1S4S. The question then is, did it confer that right? If it be true, as we insist it is, that tiie attorney general had no right ex officio to sue in a case like this, unless it was conferred upon him by positive law, then we say ho had no right to bring the suit, because tiie joint resolution under which tiie right is claimed was incapable of conferring it. The fourth section of the third article of the Constitution declares that “the style of all laws shall be: Be it enacted by the Legislature of the State of Texas.'1'’ (Hart. Dig., p. 54.) To malee a law, it requires that there should bo a declaration of enactment. In this joint resolution there is no such declaration. It is therefore no law under the Constitution.
    This may be thought to bo a small matter, or a mere technical objection, but the framers of the Cchstitution did not so regard it; or, why use the strong and emphatic language, that the “ style of all laws shall be, Be it enacted, &c.?” If a law can be made without using this enacting clause, then one can he made in defiance of any other positive command of the Constitution, aud the requirements of that instrument would become mere nullities and idle words in the hands of the Legislature.
    III. But if the resolution were sufficient authority for bringing the suit, the petition is wholly insufficient to maintain it. It alleges, or sets up, no title in the plaintiff to the land in controversy. If the plaintiff claimed as a purchaser from another, it should have been so alleged. If the claim was founded upon a light, as general proprietor of the public domain, it should have been alleged that the land sued for was a part of the public domain, and that the plaintiff claimed it as general proprietor. (1 Tex. B., 443, 447.)
    Upon the information given to the defendant by this petition, could he have know'll how to prepare his defense ? Did he know, or could he have known, whether lie was called upon to resist a title set up under an older patent, or an older deed from Jones & 1-Iall, for the same land, or to explain some supposed defect in the patent to Jones & Hall, or some defect in the intermediate conveyances from them to himself? As the petition did not inform him in respect to these matters, could ho be required to go into court prepared to, defend the patent to Jones & Hall, or to sustain his own title derived from them, or to defend himself against the whole world, or against the State, claiming under any possible title which might have been derived from any possible source in the whole world? Besides, it is a rule that the allegata and probata must reciprocally meet aud agree. Now, what sort of proof would specifically have met and agreed with the allegations of this petition? Would the proof of general proprietorship over the public domain, resulting from our successful revolution against Mexico, have been sufficient? If so, would not proof of title from the Czar of Russia, or the Emperor of Turkey, or from Ferdinand and Isabella, have been equally good ? If the plaintiff could have introduced title from either of these sources, or from any other, the defendant, to have maintained his own, must have gone into court prepared with proof to show (without being notified of its necessity) that neither one or the other had authority to convey title against him; and yet all these absurdities must be swallowed before this petition can be regarded as sufficient to let in proof of title iu the plaintiff.
    There v'as, however, no proof of title offered. Contrary to every rule in the action of ejectment, a recovery was not sought upon the strength of the plaintiff’s title, but upon the weakness of his adversary’s; or, in other words, the plaintiff did not seek to establish a title, but required the defendant to show one against all nations, princes, powers, potentates, or persons whatsoever; or, which is the same thing, against any right or title which might be set up at the trial, under any nation, prince, power, potentate, or person whatsoever.
    Under the plea of “not guilty,” the defendant introduced and relied upon a title to the laud in his wife, in whose right he claimed and held possession. This mode of introducing his title was regular and proper under the law. (Hart. Dig., art. 3235.) The title thus set up consists of a patent from the Republic of Texas to Levi Jones and Edward Hall, dated November 28, 1840; Id, a partition between Jones & Hall; and, 3d, intermediate conveyances from Jones down to Mary P. Delesdeuier, the wife.
    The patent to Jones & Hall was issued upon locations made in virtue of land scrip issued to William Bryan, under the authority of a joint resolution of the Congress of the Republic, of December of 1830. (Hart. Dig., art. 177G.) The law authorizing this scrip to be issued acknowledged a pre-existing debt to Bryan, and tile scrip was to be issued as a means of paying that debt. The right to the scrip, and to everything that it conferred, was, therefore, a vested one in William Bryan on tire 6th of December, 1830. The issuing of the scrip was a mere ministerial act. There was no discretion given to the'President on the subject. He was directed to issue it. The law conferred the right on Bryan, and the scrip issued on the 10th of December, 1830, was only the evidence of that right. When issued, it related back to the date of the passage of the law. (Yin. Abr., tit. Relation, 288, 289 ; 3 Penn. R., 428; 1 Johns. Cas., 81, 85; 9 Or. R., 19; 2 IT. S. Cond. R., 243, and various other authorities which might be cited to sustain this position.)
    The attorney general relied on the joint resolution of December 10, 1830, “authorizing the President to negotiate a loan for twenty thousand dollars,” the third section of which reads as follows : “And be it further resolved, That all islands belonging to this Republic shall be and are hereby reserved for the Government use, except the President be authorized specially by Congress to sell them," (Hart. Dig., art. 1780,) and also upon an act “ for the relief of James Erwin and others,” approved June 3, 1837. (Hart. Dig-., art. 1811.)
    The joint resolution of December 10,1836, reserving the islands, cannot avail the plaintiff in this suit, because it was repealed by the 39th section of the act of December 14, 1837, “ to reduce into one act and to amend the several acts relating to the establishment of a General Land Office.” The repealing clause is in these words: “And all laws heretofore enacted on the subject of public lands' shall be and they are hereby repealed.” (Hart. Dig., art. 1875.) If the islands were public lands, then all laws enacted in reference to them previous to that time were most clearly embraced in this repealing clause; otherwise, there is no meaning in plain and emphatic English words."’
    We are aware of the effort made a few days since, and which will doubtless be made again, to show that the Legislature did not so intend it; but when we test the repealing act of 1837, in its applicability to this joint resolution, by all or any of the rules of construction known to us, we are not aware of any one of those rules, or of any principle of sound reasoning, that would exclude it from the operation of tiffs repealing clause. It is a cardinal rule in the interpretation of laws that, when the language used is plain and unambiguous, the Legislature must be understood as meaning, and intending to mean, what tlie words employed by them import. In such, cases there is no room for construction; and however much we may doubt the policy of the law, yet we cannot say that it is not the law, when tlieir own language, interpreted by the ordinary acceptation of words, says it is. In tlie case-of the United States v. Fisher. (1 Comí. R., 421,) the court says, (Chief Justice Marshall delivering the opinion,) that “when fundamental principles are overthrown, when the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects. But when only a political regulation is made, which is inconvenient. if the intentiou of the Legislature be expressed in terms which are sufficiently intelligible to leave no doubt in tlie mind, when the words are taken in their ordinary sense, it would be going a great way to say that a constrained interpretation must be put upon them to avoid any inconvenience which ought to have been contemplated in the Legislature when tlie act was passed, and which, in their opinion, was probably overbalanced by tlie particular advantages it was calculated to produce.” (1 Cond. R., 425.) How, apply tiffs reasoning (and it commends itself to our approbation by its good sense) to the case under consideration. Is there here any fundamental principle overthrown by the repeal of this law? Is there any departure in it from a general system of laws previously adopted? And is not the repealing act expressed with full, indeed, irresistible clearness? If not, what word more comprehensive and clear could have been added to it, unless every law intended to be repealed by it had been specially enumerated and named?
    It has been suggested, for the purpose of taking this joint resolution of December 10,1S36, but of the operation of the repealing act of 1837, that, although the islands were public lands, vet they might have been so in one sense and not in another; and therefore the laws enacted in reference to them may not have been included in the repeal. Tills suggestion asks for a retiuement of construction which probably our intellect is too obtuse to embrace in all its bearings. If we understand it, however, we suppose it is intended to mean that tlie islands, although public lands, wore public lauds appropriated to special purposes, and were not embraced in the great mass of public domain which was open to location, and that the laws intended to be repealed were only such laws as related to that great mass which was subject to appropriation at the time the repealing law was passed. Or, in other words, that after this reserving act the islands were no longer to be considered as a part of the public domain for the general purposes to which the public domain might be applied, they having been reserved for, or appropriated to, if the term ‘applies better, a special object.
    Now, admit they were appropriated toa special object; admit, further, that they were made private lands and held by the Republic, — was not the act which thus separated them from tlie public domain one which related to or was on the subject of public lands? And was there anything in the terms of the act, or in the rights which grew up under it, which prevented a subsequent Legislature from repealing it? We admit, if private rights had grown up under the act before the repeal, that the subsequent repeal of the law, and of all previous laws upon the subject of the public lands, would not have divested or impaired those rights. But what right did grow up under this reserving act? None, except what the public retained and held; and was it not competent for that public, which withdrew those lands from the mass for a special purpose, to return them to that mass again when they were no longer needed for that purpose?
    But if the resolution of December, 1836, was not repealed by the act of 1837, we still insist that it could not operate to affect the patent to Jones & 1-Iall. The patent was for lauds to which the parties were entitled under land scrip issued to William Bryan on the 10th of December, 1836. This scrip was issued upon the authority and requirements of a joint resolution approved December 6, 1836. That resolution acknowledged an indebtedness on the part of the Republic to Bryan ; and the scrip was to he issued to him as one means of payment-. His right to it, therefore, accrued on the day of tlie passage of the law, that is, on the 6th of December, 1836. It was then a vested right in him — one which the law gave and which the law vested. Tlie issuance of tlie scrip was a mere ministerial act which the President was directed to perform. It did not confer the right that previously existed; hut it was tlie mere evidence of tlie right, which tlie law directed to be furnished. And if the President had delayed issuing- the scrip, even to a later period, it could not have affected tlie previous right. When it was issued, it related hack to the time when the right accrued. It is a principle in equity that tlie patent, which is the consummation of tlie title, relates back to tlie inception of tlie title. A deed executed in pursuance of a previous contract relates back to the time of the contract, and overrides all intermediate acts. (Yin. Abr., tit. Relation-, 288, 289; 1 Johns. Cas., 81,85; 2 Penn. R., 42S; 2 U. S. Cond. R., 213; 9 Or. R., 19.)
    Tlie law which authorizes this scrip to be issued to Biyan, and the acceptance of tlie terms of it by receiving the scrip, constituted a contract between the Republic and Bryan in reference to it. Now, what was the obligation of that contract? On the part of the State, it was, that Biyan, or tlie person holding tlie scrip under him, should have the right of locating it on any lands which at that time were public lands. On his part it was, that lie should allow tlie State fifty cents an acre for the land, and apply it to the payment of tlie debt which tlie Republic owed him. After making this contract, was it competent for the Legislature to withdraw any portion of the public domain, all of which was pledged for the redemption of this scrip from that pledge? And if so, was it not equally competent for them to withdraw the whole of it, and leave the scrip in the hands oí the holders as so much useless and worthless paper? Is not such a withdrawal a violation of the obligations of the contract?
    Judge Story in his Commentaries on the Constitution, says, that “whatever I, by niy contract, give another a right to require of me, I, by that, lay myself under an obligation to yield or bestow it.” (Comm, on Const., p. 500.) The same learned author says, again : “ It is perfectly clear that any law which enlarges, abridges, or in any manner changes the intention of the parties resulting from the stipulations in the contract, necessarily impairs it. The manner or degree in which this is effected can in no respect influence the conclusion,” &c. (Comm., p. 503 ; see, also, pages 504, and 505 ; Peck R., 1, 13; 2 How. U. S. R., 012.),
    Slow, apply these principles to the case under consideration. Did not the Republic, by its contract with Bryan, give him a right to require that his scrip should be located,on any of the public lands? And was not the Republic under an obligation to yield or bestow that right? Did not the withdrawal of a part of the public domain from the right of location under this scrip, after the right had accrued, abridge or in some manner change the intention of the parties resulting from the stipulations in the contract? Whether the chango operated to tlie destruction or material injury of the contract, or only affected it in a slight degree, is, in the opinion of Judge Story, a matter of no importance. Tlie only question is, has the obligation of the contract been changed or impaired in the slightest degree? If so, the changing or impairing of it is unconstitutional and void. We do not deny that the Government had the right, after the issuance of this scrip to Bryan, to sell any portion of the public domain to meet the emergencies of'the nation, or to authorize others holding claims against the Republic to locate them upon that domain; and we admit if such sales or locations liad been made, the land covered by them would liave been removed beyond the reach of location under the Bryan scrip. But we do deny that the Government had the constitutional right, after the passage of the resolution of December 5,1S36, to withdraw any portion of what was then tlie public domain from the right of location under tills scrip, and reserve it for its own use.
    The property of an individual is liable for the payment of all his debts; but if he sell it and apply the proceeds to the payment of one of his creditors, to the exclusion of the rest, they have no legal right to complain. If, however, ho attempts to withdraw it from all of his creditors, and reserve it for his own use, by making it over to some person for Iiis benefit, his creditors would have a right to complain, and the law would sustain them in their complaints. What is the essential difference between a case of this sort and tlie present one? Here, tlie public lands of the Republic were not only liable to the legal claims existing against them, but were specially pledged to this one. Mow, admitting that this claim had no preference over others, and that tlie Republic might liave disposed of its lands in satisfaction of tlie others to the exclusion of this, still, as it- did not do so, but retained the lands, it had no right to say that it would withdraw them for its own use from the pledge and from all liability to the claims that existed against them, and the vested right which others had to them.
    But, again, after the passage of the reserving act, what was the condition of the islands? Were they public lands or not? If they were public lauds, were they still not liable to be located by scrip which expressed upon its face that it might be located on any of the public lands ?
    The latter clause of the fourth section of the act of June 3, 1S37, “ for the relief of James Erwin and others,” which is invoked by the plaintiff, is obnoxious to all objections which we have urged against the joint resolution of December 10, 1830. That, like the other, was repealed by the act of December 14, 1837 ; and if not repealed, it would be most clearly unconstitutional if applied lo the location of the scrip issued to William Bryan.
    
      IV. There is one other consideration which may be properly urged before this court, although it is not founded upon anything- contained in the record. We present it, not as a reason upon which the decision of the court ought to be based, but as an argument which may well be used in support of this judgment, if any doubt should exist as to the proper judgment which should now be rendered in this case. It is a matter of notoriety, we may say of great notoriety, that the patent to Jones and Hall -was issued in conformity with a decree of the District Court of Bastrop county, and under the mandate of that court directed to the Commissioner of the General Land Office, commanding him to issue it. The court from which that mandate emanated had full and complete jurisdiction over the subject-matter and the parties. By its decree the rights of Jones and Hall, as against the Republic, were adjudicated, settled, and determined. Everything connected with ttiose rights is res adjudicata. The judgment which determined them, whether intrinsically right or wrong, is now beyond the reach of judicial or legislative control. It camiot be brought into question in any collateral proceeding, (10 Pet. R., 374;. 2 How. U. S. R., 338; 1 Tex., 310,) and the time for attaching it directly by appeal, writ of error, or any proceeding known to .the law, has long since passed, unless, indeed, it could be attacked for fraud, and no one who knows the judge who rendered the judgment, or the parties and their counsel who applied for it, would believe for a moment that any feature of fraud could attack it. It is true that that j udgment does not appear in this record in support of the defendant’s title; but if the judgment in this cause he reversed and the cause he remanded for a new trial, (and that, we take it, would he the necessary consequence of a reversal,) it would unquestionably constitute a part of the proof on another trial, and under that proof there could exist no doubt that the verdict and judgment would be again for the defendant, and it would he such a verdict and judgment as the court would feel itself bound to sustain. It would, therefore, seem to be an unnecessary waste of time and expense to remand the cause for a new trial when the ultimate result must be the same as it is now.
    Special Court, composed of Hemphill, Chief Justice, and John Sayles and Asa M. Lewis, Special Judges.
   Sayles, S. J.

The first question presented for our consideration arises from the ruling of the court upon the exception to the petition. The exception was peremptory; it goes to the foundation of the action, and, if correctly taken, defeats absolutely the plaintiff’s right of recovery.

This action was instituted by the attorney general in behalf of the State, under the joint resolution of February, 1848, (Hart. Dig., artl 2201,) which reads as follows:

“Be it resolved by the Legislature of the State of Texas, That the attorney general he required to investigate the condition of the claim and title of the State to the various islands included within the limits and jurisdiction of Texas, as defined by the laws of the late Republic, and, if in his judgment it be expedient, to cause legal proceedings to be instituted in the proper State courts against any person or persons'claiming any islands or parts of islands adversely to the State, for the purpose of determining the. validity of such claims,” &a.

This resolution directly authorizes the institution of legal proceedings against persons claiming any portion of the islands, unless it is obnoxious to some constitutional objection.

By art. 3, see. 4th, of the Constitution, (Hart. Dig., p. 54,) it is declared that “ the style of the (all) laws shall he: ‘ Be it enacted by the Legislature of the State of Texas,’ ” and it is urged by the appellee that the joint resolution is inoperative for the want of this enacting clause.

We are of opinion that this clause of the Constitution is inapplicable to acts similar to the one under consideration. Bills and resolutions are mentioned, eo nomine, in different sections of that instrument. By article 3, section 20, it is provided that “bills” shall be read on three several days before they shall have the force and effect of laws.

By section 22 of tiie same article it is declared that no “bill or resolution” having once been rejected shall be passed into a law during the same session.

Every “bill” which shall have passed both Houses of the Legislature shall be presented to the Governor for approval. (Art. 5. sec. 17.)

Every order, resolution, or vote to which the concurrence of both Houses of the Legislature may be necessary must be approved by the Governor, or, in case of his disapproval, shall be repassed by both Houses, according to the rules and limitations prescribed in the case of a bill. (Art. 5, sec. 18.)

Bills and resolutions are named in contradistinction; both do not mean one and the same thing; if they do, unnecessary terms are made use of in the Constitution. The characteristic feature of a resolution is its enacting- clause, “Be it resolved; ” were any other term used, it would cease to be a resolution.

“When the House commands, it is by an order. But facts, principles, and their own opinions and purposes, are expressed in the form of resolutions.” (Cong-. Man., p. 150.)

Of tiie right of the State to appear in her own courts and prosecute suits in her own behalf there can be no question; it is an incident of sovereignty, not dependent upon any statute. It might, with much propriety, be said that it is the duty of the Executive of the State, under that provision of the Constitution which declares that, “he shall take care that tiie Jaws be faithfully executed,” (art. 5, sec. 10,) to cause legal proceedings to be instituted by the proper law-officers in all cases when tiie laws of tiie State are infracted or its rights invaded.

But it would be a great neglect of duty on the part of the attorney general not to institute such proceedings when the opinion of the Legislature and Executive Departments as to its necessity lias been dearly expressed.

The provisions of the Constitution of the Republic of Texas are similar to those of the State Constitution. (See art. 1, sec. 20, 21, and 27.) If there was any doubt as to the meaning and application of those terms and provisions now under consideration, we could refer to the uniform practice of Congress as a legislative interpretation. The framers of the new Constitution undoubtedly used terms and expressions with the meaning that was familiar and sanctioned by long usage.

If the joint resolution of February, 1S-18, has not the force and effect of a law for the want of the enacting clause prescribed by article 3, section 4, then the defendant in this case has no rights whatever, because the Bryan scrip, upon which the patent is based, was issued under the authority of a joint resolution, and the provision of tiie Constitution of the Republic is equally emphatic with that of the Slate Constitution, that the style of all laws shall be : “Be it enacted,” &c. (Art. 1, sec. 22, Hart. Dig., 28.) If this enacting clause is necessary to give a resolution the force and effect of a law, then the Bryan scrip was issued without authority of law and is wholly worthless. We then conclude that the joint resolution of February. 1848, conferred upon the attorney general ample authority to institute the present suit. This resolution is a public statute, of which the court is bound to take judicial notice; it was not necessary that the petition should have averred this authority — it was not necessary to prove it. The ¡rítate was not prosecuting her suit, in the present instance, by virtue of a special enactment creating an exception to a general rule, but slie was exorcising an unquestionable rigid., incident to her sovereignty; the right to sue was not in any way dependent upon the joint resolution — the resolution was the, expression of her purposes, made for the direction of her officer : if he had been called upon to exhibit his authority to appear in her behalf, he had only (o refer to the public statute book.

In oi her respects the petition was sufficiently formal. The title of the plaintiff lo ihe land in controversy, her ownership and right of possession, were averred. There was no necessity of describing the character of her title. Had the defendant craved oyer, her Declaration of Independence, her Constitution and laws, are the deed which she would have exhibited — a deed that the defendant could not have questioned. It was written upon materials more durable than parchment, and sealed with the blood of her sons.

Whatever right the defendant could have to the land was derived from her; he could not question the validity of the title under which his own was held.

There was no error in the judgment of the court in overruling the exception to the petition.

Did the court err in admitting as evidence the patent to Jones and Hall, under which the land in controversy is claimed by the defendant?

In answering this question, we shall necessarily dispose of the questions of law embraced In the charges ashed by the plaintiff and refused by the court.

It may facilitate our inquiries on this subject to determine, first, what are or were the rights of the holders of the Bryan scrip.

This scrip was issued under authority of a joint resolution of Congress approved December G, 1S3G. (Ilart. Dig., 1776.) The first section of the resolution provides that the Secretary of the Treasury, under the direction of the President, should pay, out of the first available means, the debts of the Government due William Bryan, and those for which he was in any way responsible.

The second section reads as follow's : “He it further resolved, That the President be and is hereby authorized to place in the hands of said William Bryan, and authorize him to sell, a sufficient quantity of land scrip to pay all demands named in the foregoing resolution, and that he instruct him to apply the proceeds of the sale of said scrip to that special purpose : Provided, That said scrip shall not be sold at a less price than fifty cents per acre, and that the said Bryan be required to file in the office of the Secretary of the Treasury proper vouchers for all said debts.”

The scrip was issued by Sam Houston, President, on the 10th of December, 183G; to it were attached certain articles and conditions; but we must look to the law to determine the rights acquired under the scrip. Any conditions, privileges, or restrictions not authorized bj' the law are absolute nullities, and cannot operate to enlarge or abridge the rights of Bryan or those purchasing of him. Tlie scrip issued under and by virtue of the joint resolution gave the holder a claim upon the public domain out of which his demand should be satisfied at the time and in the manner prescribed or to be prescribed by law. This scrip had no preference over any other scrip; the holder of it had no claim to any particular portion of the public lands, but a general lien upon all the lands, to be satisfied out of such portions as were unappropriated at the time he made his selection or location.

It has been urged by the learned counsel of the appellee, (and many cogent arguments have been used,) that the law or joint resolution of December G, 183G, was a-contract between the Government and Bryan, by which (ho latter had a vested interest from that date, and that the Government could not, without a violation of the contract, dispose of any lands then vacant until his claim was satisfied. This position was, however, so far qualified as to admit that the Government might sell any portion of her public lands as her exigencies demanded, but that she could not withdraw any portion, so as to exempt it from location by the holders of scrip.

That she had the right to dispose of her lands as she saw proper, giving to subsequent purchasers the privilege of selecting their lauds out of the whole unappropriated domain, we think admits of no question. To assert the contrary would be saying that the holder of the first certificate for land ever issued had a preferred right, and that the holder of a certificate subsequently issued could make no selection until the first had been satisfied; and that the former could suspend rights subsequently acquired at his pleasure. We are unable to see any distinction between the right of the Government to sell her lands and the right of appropriating them to a particular purpose, or reserving them entirely from location. And so long as she has left sufficient to satisfy her creditors, they cannot complain of such reservation; no rights possessed by them have been infringed.

In the case of West River Bridge Company v. Dis: et al., (G How. U. S.R., G31,) Justice Daniel, delivering the opinion of the court, says: ‘'No State, it is declared, shall pass a law impairing the obligation of contracts; yet, with this concession constantly yielded, it cannot bo justly disputed that in every political sovereign community there inheres necessarily tlx; right and the duty of guarding its own existence, and of protecting and promoting the interests and welfare of the community at large. This power and this duty are to be exerted not only in the highest acts of sovereignty and in the external relations of Government; they reach and comprehend likewise the interior polity and relations of social life, which should be regulated witli reference to the advantage of the whole society. This power, denominated the eminent domain of tlie States, is, as its name imports, paramount to all private rights vested under the Government; and these last are, by necessary implication, held in subordination to this power, aud must yield in every instance to its proper exercise.

“Under every established Government tlie tenure of property is derived, mediately or immediately, from the sovereign power of the political body organized in such mode, or exerted in such way as the community may have thought proper to ordain. It can rest on no other foundation; can have no other

guarantee. It is owing to these characteristics only, in the original nature" of tenure, that appeals can be made to the laws, either for the protection or assertion of the rights of property. Upon any other hypothesis, the law of propert3r would be simply the law of force. Now, it is undeniable that the investment of property in the citizen, by the Government, whether made for a pecuniary consideration or founded on conditions of civil or political duty, is a contract between the State, or the Government acting as its agent, and tlie grantee; and both the parties are bound in good faith to fulfill it. But into all contracts, whether made between States and individuals or between individuals only, there enter conditions which arise not out of the literal terms of the contract itself; they are superinduced by the pre-existing and higher authority of the. laws of nature, of nations, or of the community to which the parties belong; they are always presumed and must be presumed to be known and recognized hjr all, are binding upon all, and need never, therefore, be carried into express stipulation, for this can add nothing to their force. Every contract is made in subordination to them, and must yield to their control, as conditions inherent and paramount., wherever a necessity for (heir execution shall occur. Such a condition is tlie light of eminent domain. This right does not operate to impair tlie contract affected by it, hut recognizes its obligation in the fullest extent, claiming only the fulfillment of an essential and inseparable condition.” The reservation of tlie public lands, or the resumption or qualification of an investiture, cannot, in any sense, bo regarded as a violation of a contract, like tlie one under consideration, by the Government. The contract was made in subordination to the inherent and paramount right of eminent domain residing in the Government. This condition is as biuding as if expressed in the contract in literal terms.

The scrip, bounty warrants, or land certificates issued under the various laws entitle the holder thereof to lands to be selected in the manner prescribed by law; and the manner of making such selections may he changed from time to time. The Legislature may prescribe tlie mode in which the surveys shall be made, may designate wliat portions of the country shall he subject to location. These are laws affecting tlie remedy and not tlie right which the Congress of the Republic and of the State has always assumed the right to enact, and no one. has efer denied their constitutionality.

The contract (and it is only a quasi contract) between the Government and the holder of scrip is, that the latter may select such portion of the public lauds as are unappropriated and subject to location, when the same is made, for which a final title shall be issued by the former. These conditions are inherent and paramount, growing out of the right of eminent domain, are known and recognized by all, and need not be carried into the express terms of the contract.

When the Bryan scrip was issued, no portion of the public domain was subject to location. The land office had been closed, the whole land system suspended by the Constitution, and all surveys thereafter made declared to be invalid. (Const., Gen. Pro., sec. 10, Hart. Dig., p. 40.)

The General Land Office was established by the act of December 22, 1836. (Hart. Dig., art. 17S2.) By the 23d section of the act (art. 1804) the office was to open on the 1st of June thereafter, for the benefit of the preferred class only, which was composed of citizens who were here on the day of the Declaration of Independence, and of volunteer soldiers who had served a tour of duty.

By the act of June 12,1S37, (Hart. Dig., art. 1814,) the entire operations of tlie land office were suspended until October following, by the joint resolution of September 30, until the further action of Congress. And by the act of December 14, 1837, (Hart. Dig., art. 1873,) they were suspended until the 1st day of February, 1838, at which date the land office, for the first time since the organization of the Government, went into operation, and then only for the exclusive benefit of the preferred class. It was not open for all until the first Tuesday of August, six months thereafter. Until that period, the holders of the Bryan scrip, as well as all other holders of laud scrip, were precluded from making any selections of land.

But, admitting the doctrine contended for by the appellee, the holders of the Bryan scrip could not disregard the locations made by the preferred class, for whoso benefit the land office liad been open during six months; because, when the Bryan scrip was issued none of those locations had been made, and its holders could contend that their contract was made with reference to the very lauds tlms selected. The opportunity of making locations was first given by that law, and the selections then made must have been in accordance with its provisions, out of the unappropriated or vacant domain, as defined by the laws in force.

To ascertain the rights of Bryan, we must look, then, to the laws in force at the date of his location; as, until then, he had no vested interest in any particular portion of the public domain.

The time of the location does not appear in evidence; and, for the present inquiry, we must lie governed by the date of the patent, which is the 28th day of November, 1S40, or we may look to the period (August, 1838) when he was first authorized to locate his scrip. The question now arises, whether the lands on the island of Galveston, being the lands conveyed by the patent, were subject to location at that date. The first legislation upon this subject is the joint resolution of December 10, 1S36, (Hart. Dig., art. 1770,) authorizing the President to negotiate a loan for twenty thousand dollars.

The first resolution authorizes the President to borrow twenty thousand dollars, for the purpose of purchasing munitions of war.

The second resolution authorizes the President to sell land scrip to raise the said sum of money, provided that no lands shall be sold for less than fifty cents per acre.

The third resolution reads: “And be it further resolved, That all islands belonging to tins Republic shall be, and are hereby, reserved for the Government use, except the President be authorized specially by Congress to sell them.”

An act approved June 8,1837, entitled “An act for the relief of James Erwin and others,” (Hart. Dig., art. 1810,) the object of which was to discharge a debt contracted by the Government, by the sale of land scrip, contains the following proviso: “Provided, That no lands granted by this Government shall be located on salt springs, gold or silver, copper or lead, or other minerals, or any island oí the Republic.” (Hart. Dig., art. 1811.)

An act to dispose of Galveston and other islands of the Republic of Texas, approved June 12 of the same year, (Hart. Dig., art. 1829,) requires the Secretary of the Treasury to cause the island of Galveston, except the league and labor sold to M. B.' Menard and his associates, and all other islands within this Republic, to be surveyed in lots not less than ten nor exceeding forty acres; and to cause the same to be sold at auction, to the highest bidder, for specie or the notes of current and specie-paying banks, one-fourth of the purchase-mouey to be paid down and the balance in equal installments at three, six, and nine months. The’ second section of the act authorized aliens to purchase ; and the third section enacts that purchasers, failing to pay the installments as they become due, shall forfeit the sums previously paid, and the lots and lands purchased by such defaulters shall revert to the Government of this Republic.

By the acts and resolutions above cited the intention of the Government is clearly shown to reserve all islands from location. The public domain was the principal source of revenue possessed 'by the Government. Upon that, as a pledge, she had borrowed large sums of money, specially reserving the islands for her own use, either because lliey were more valuable or more available than other portions of the public domain.

Congress, having declared that (he islands should not be sold unless express authority was given for that purpose, at a subsequent day directed a sale of them in a particular way. The manner in which the sale was to be made was such as to derive the greatest possible amount of revenue from the islands. The islands, as well as other portions of the public domain, were rendered available to meet the exigencies of the Government.

The right of the Government to dispose of her lands as she thought proper cannot be questioned. She liad the. authority and right to reserve the islands or any other portion of tiie public lands from indiscriminate location. That right she exercised as to tiie islands; they could be acquired by citizens only in the way prescribed by the law so reserving .them.

It is urged by the appellee that the laws reserving’ islands from location were not, at the date of the patent, in force; and for the law by which they are repealed we are referred to tiie 39th section of the land law of December 14, 1837, (Hart. Dig., art. 1875,) the latter clause of which reads as follows: “And all laws heretofore enacted on the subject of public lands shall be, and they are hereby, repealed.”

This clause is broad and unqualified in its terms, and, unless its literal meaning is restricted by the application of the known rules of construction, its effect is clear. The literal meaning is not always to be attached to the expressions made use of in a law. “If the literal expressions of a law would lead to absurd, unjust, or inconvenient consequences, such a construction should be given as to avoid such consequences, if, from the whole purview of the law and giving effect to the words used, it may fairly be done.” (Bao. Abr., vol. 9, p. 240; Fisher v. Blight, 2 Or. R., 386.)

What are the effects of giving to the expressions used in this law a literal construction? Are the consequences absurd, unjust, or inconvenient? To determine this, let ns ascertain what laws are repealed, if all laws previously enacted upon the subject of public lands are embraced in this law.

The following are laws relating to public lands, and, if the expression used in tiie law receives its strict and litoral meaning, are embraced within it:

The ordinance and decree of November 24, 1S35, granting six hundred and forty acres of land to the officers and privates of the regular army of Texas; the ordinance of December 5,1835, giving to volunteers disabled in the service, and in case of their death to their heirs, a bounty of six hundred and forty acres of land; tlie ordinance of December 11, 1835; of December 14, 1835; tlie joint resolution of November 24,1S3G; the act of December 5,1830; the act of December 10, 1830, (I-Iart. Dig'., arts. 1709, 1771, 1772, 1774. 1775.) providing for the issuance of bounty warrants to those who have fought tlie battles of tlie country, and to tlieir heirs and legal representatives in case of their death.

No other laws are found upon the statute book providing- for the reward of that meritorious class. If the laws above cited are repealed, then the volunteer soldiers, who served tile country in its darkest hour, who fought her battles aud won her independence, are alone unprovided for in the distribution of public lauds so liberally made by the Government. The class which the Government designed most to favor, for whose exclusive benefit the land office was to be opened for six months, have, in fact, no rights; for tlie very law which established tlie land office and first authorized them to make locations, abrogated the laws, heretofore enacted, by which provision liad been made for them ; and unless they had previously received their warrants, their meritorious services have never been requited. They are provided for by no subsequent law.

The joint resolution of December 0, 1830, was also repealed, and scrip issued after that date to William Bryan (if any such was issued) was without authority of law.

May we not, from the whole purview of tiie law, and giving effect to the words used, fairly give it a construction by which these unjust and inconvenient consequences may be avoided ?

“ When a law is plain and unambiguous, whether it he expressed in general or limited terms, the Legislature should be intended to mean what they have plaiuly expressed; and consequently no room is left for construction. But if from a view of the whole law, or from other laws in pari materia, the evident intention is different from the literal import of the terms employed to express it in a particular part of the law, that intention should prevail, for that, in fact, is the will of the Legislature.” (9 Bac. Ahr., 240; United States v. Fisher, 2 Cr. R., 336, 397.)

In tlie ease of Pennington v. Coxe, (2 Cr. R., 33, 1 Cond., 346,) it is said, “That a law is the best expositor of itself; that every part of an act is to be. taken into view for the. purpose of discovering the mind of the Legislature; and that the details of one part may contain regulations, restricting the extent of general expressions used in auother part of the same act.”

Let us apply those rules to the exposition of the law under consideration.

The object of the act is fully expressed in its title, it being “An act to reduce into one act and to amend the several acts relating to the establishment of a General Land Office.” All of the details of the act relate to that one subject; the whole context of the law demonstrates that the Legislature had iu view that single object; and, if it were necessary, we might call in some implication to aid that intent. (6 Cr. R., 307, 314.)

There were scattered through the statute book various enactments concerning a “General Land Officethese several acts were reduced into one act and amended by the act of December 12,1837. The object of this law was to perfect the land system of the Republic, to regulate the mode of distributing to legal claimants the lands to which they were entitled under the existing laws.

Tlie general expressions used in the law must he limited in their application to tlie object had in view by tlie Legislature. “A thing which is within the intention of the makers of a statute is as much within the statute as if it were within tlie letter; ” “and a tiling which is within theletterof the statute is not within tlie statute unless it he within the intention of tlie makers.” (9 Bac. Abr., 247.) Prom tlie context of the statute, we could uot infer that it was within tlie intention of tlie Legislature to alter or repeal any laws except such as relate to the subject-matter of the statute.

When it is manifestly the intention of the Legislature, says Bacon, (vol. 9, p. 247.) “that a subsequent act of Parliament shall not control the provisions of a former act, tlie subsequent act shall not have such operation, even though the words of it, taken strictly and grammatically, would repeal the former act.” “A Legislative act is to be interpreted according to tiie intention of the Legislature, apparent upon its face. Every technical rule, as to tlie construction or force of particular terms, must yield to the clear expression of tlie paramount will of the Legislature.” (Wilkinson v. Leland. 2 Pet. It., 6(12.)

Looking at the whole act., we have no difficulty in arriving at the intention of the Legislature — that it was simply to reduce into one act and to amend the several acts relating to the establishment of a General Land Office. This is tlie object of the act, as declared by its title and clearly indicated in its details.

It does not pretend to make provision for the soldiers of tiie Revolution, in • whose favor laws had been previously enacted; it does not provide for the issuance of bounty-warrants in any ease; it does not contain any section defining tlie public domain. These laws of various dates are not embraced within tlie purview or the details of the present statute. It was manifestly the intention of the Legislature to leave them in force; and a technical or strict construction of particular terms must yield to the clear expression of the paramount will of the Legislature.

Considering together the former laws and the present, the object had in view, we are of opinion that it was not the intention of the Congress to repeal any but such laws as were embraced within the purview of the act, and that tiie laws reserving islands from sale are still in force.

We are supported in our conclusions by the subsequent legislation on the same subject. By the act of January 20, 1840, (Hart. Dig., art. 127,) adopting the common law and repealing all former laws, the laws of the former Government reserving islands, etc., were especially continued in force.

And, although no such laws are known to exist, the exception indicates the belief of tlie Congress that islands at that time were not subject to location, and its intention to continue such laws in force.

The joint resolution of 1S48, under which the present action was instituted by tlie attorney general, also shows the intention of the Government to assert its exclusive title to the islands, unless disposed of in accordance with law. By no rule of construction can the repealing clause of this statute be applied to the laws reserving the islands from sale.

Those laws were, in fact, a special appropriation of tlie islands for the use of the Government, and they were from that moment severed from the public domain.

In the case of Wilcox v. Jackson, ex dem. HcConnel, (13 Pet. R., 498,) similar In many of its features to the present, it is said that an “ appropriation of land by tlie Government is nothing more nor less that setting it apart for some particular use; and whenever a tract of land shall have once been legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of public domain; and no subsequent law, or proclamation or sale, would be construed to embrace it or to operate upon it, although no other reservation were made of it.”

The island of Galveston having- been reserved from location and sale, unless special authority for that purpose was given by Congress, was, from that moment, severed from the public domain; no general repealing clause contained in subsequent laws can be held to apply to the act appropriating it to a particular purpose.

Having lost the character of “public lands,” it could not regain that character except by direct and express terms. We are therefore of opinion that the court erred in permitting the patent to Jones and Hall to he mid in evidence ; the patent being- for lands not subject to appropriation by individuals by location. is absolutely null and void.

The patent was issued, not only without authority of law, but in express violation of law.

Note 15. — Kimmell u. Wheeler, 22 T., 77.

' Note 16. — Cain v. The State, 20 T., 355.

Note 17. — Tabor v. Commissioner, 29 T., 508.

Note 18. — Franklin v. Kesler, 25 T., 138; Sherwood v. Fleming, 25 T. Supp., 408.

“ The issuing of ¡1 patent is a ministerial act, and must be performed according to law; if it is issued against law. it, is void, (2 How. R., 318,) and those claiming under it acquire no right.” (7 Pet. R., 222; 3 Coke R., 94; 1 Tex. R., 721.)

Tile instructions giveu'to the jury at the request of the defendant are correct, as abstract principles, but they were inapplicable to the case at bar, and should llave been refused.

This was a direct proceeding on the part of the Government against the claimant of the laud; the patent was called directly in question; the grounds of its invalidity were apparent upon its face, and it was the duty'of the court to instruct the jury as to its legal effect.

It is ordered, adjudged, and decreed that the judgment of the court be reversed and tiie cause remanded for further proceedings.

Judgment reversed. 
      
      The right of appropriating and reserving the public domain has been frequently exercised by the Government of tlie United;Stqtes,and qf the several States, and has rarely if ever been questioned.
     