
    No. XVI.
    Board of Land Commissioners v. Jesse Walling, Assignee.
    (See .)
    
      Appeal from Nacogdoches.
    
    
      
      .—Board of Land Commissioners v. Walling-, p. 524.
      1 Mandamus can not be resorted to against the State without its consent. Hosner v. De Young, 1 T., 764; League v. De Young, 2 T., 497; Auditorial Board v. Arles, 15 T., 72, 75; Marshall v. Clark, 22 T., 23; H. T. Ry. Co. v. Randolph, 24 T., 317, 342; Ex parte Towles, 48 T., 413, 447; Taylor v. Hall, 71 T., 206; Thompson v. Baker, 90 T., 163.
      2 State can not be sued in her own courts without her consent, and then only in the manner indicated by special permission. Hosner v. De Young, 1 T., 764; Howard v. McSherry, 2 T., 311; League v. De Young, 2 T., 437; Bryan v. Sundberg, 5 T., 418; Marshall v. Clark, 22 T., 23; Rose v. Governor, 24 T., 496; Treasurer v. Wygall, 46 T., 447; Ex parte Towles, 48 T., 413, 447; Taylor v. Hall, 71 T., 206; T. M. Ry. Co. v. Jarvis, 80 T., 456; Thompson v. Baker, 90 T., 163. Statutes giving privilege to sue State are strictly construed in favor of the State, so as not to extend the privilege to those not clearly intended. Rose v. Governor, 24 T., 496. It seems that the same strictness is not required when suit is for assets of estates deposited with State. Treasurer v. Wygall, 51 T., 621; Dodson v. Wortham, 18 T. C. A., 666. An individual sued by the State, can not set off claims against State, unless expressly authorized by statute. Borden v. Houston, 2 T., 594; Bates v. Republic, 2 T., 616; Chevallier v. State, 10 T., 315; Dean v. State, 54 T., 313, 314; State v. Snider, 66 T., 687; Sweatman v. Sanders, 85 T., 294, 300.
      3 A colonist was not entitled to a grant as head of a family, unless his family was resident in Texas. Land Commrs. v. Bell, Dal., 366; Land Commissioners v. Reily, Dal., 381; Republic v. Skidmore, Dal., 581 Langford v. Republic, Dal., 588; Republic v. Inglish, Dal., 608; Johns v. Republic, Dal., 621; Grooms v. State, 1 T., 568; Republic v. Skidmore, 2 T., 261; Tichner v. State, 2 T., 269; Lewis v. Ames, 44 T., 319, 345; Lott v. King, 79 T., 292; Hill v. Moore, 85 T., 335; Byrn v. Kleas, 15 T. C. A., 205; Union Beef Co. v. Thurman, 70 Fed. Rep., 965. An unmarried colonist, under twenty-one years of age, was not entitled to a headright grant. Lockhart v. Republic, 2 T., 127. But it will be presumed from the fact that a headright certificate was granted by the proper authority that the grantee was the head of a family, and evidence is not admissible in a collateral proceeding to show that he was not married and that his family was not in Texas. Johnston v. Smith, 21 T., 722; Bowmer v. Hicks, 22 T., 155; Howard v. Colquhoun, 28 T., 134; Burkett v. Scarborough, 59 T., 495; Capp v. Terry, 75 T., 391; Boone v. Hulsey, 71 T., 176; Hill v. Moore, 85 T., 335; Byers v. Wallace, 87 T., 503. Grant is valid, if the grantee in good faith, intended to move his family to Texas. Republic v. Young, Dal., 464; State v. Skidmore, 5 T., 469; Russell v. Randolph, 11 T., 460. Titles issued by alcaldes and commissioners after closing of Land Office, by Act of Consultation on November 13 1835 (Gammel’s Laws of Texas, vol. 1, p. 541), which took effect immediately on adoption, are null and void. Donaldson v. Dodd, 12 T., 381; Spier v. Laman, 27 T., 205; Parker v. Bains, 59 T., 15. If the title was actually issued befcre November 13, 1835, making out and delivering the testimonio shortly afterwards did not invalidate the title. Houston v. Blythe, 60 T., 506. Holders of orders for surveys and headright certificates, issued prior to November 13, 1835, could only establish their claims in the mode prescribed by Act of December 14, 1837 (Gammel’s Laws of Texas, vol. 1, p. 1404), upon proof of facts enumerated in section 12. Land Commissioners v. Reily, Dal., 381; Republic v. Skidmore, Dal., 581; Republic v. Inglish, Dal., 608; Johns v. Republic, Dal., 621; Jones v. Menard, 1 T., 771; Trimble v. Smithers, 1 T., 790; Land Commissioners v. Raguet, 2 T., 98; Land Commissioners v. Riley, 3 T., 237; Capp v. Terry, 75 T., 391. All certificates returned by commissioners as genuine, but not recommended on account of want of oath required by section 12 of Act of December 14, 1837, were validated and directed to be patented by Act of January 19, 1841 (Gammel’s Laws of Texas, vol. 2, p. 528), Whitehead v. Foley, 28 T., 1; Spofford v. Bennett, 55 T., 293. Under Act of February 5, 1840 (Gammel's Laws of Texas, vol. 2, p. 335), patents could only issue on certificate of recommendation from Board of Land Commissioners and holders of unrecommended land certificates had no standing in court without it. Norton v. Land Commissioner, 2 T., 357; Bracken v. Wells, 3 T., 88, 90; Kemper v. Victoria, 3 T., 135; Miller v. Brownson, 50 T., 583. All surveys supported by recommended certificates valid; without them, invalid. Warren v. Shuman, 5 T., 441; Scott v. Mather, 14 T., 235; Whitehead v. Foley, 28 T., 268. Head-right certificate is not color of title, unless recommended. Horton v. Crawford, 10 T., 382; Whitehead v. Foley, 28 T., 268. Prohibition in Act of February 5, 1840, against surveys on unrecommended certificates after Majr 1, 1840, did not legalize surveys made either prior or subsequently on unrecommended certificates. Warren v. Shuman, 5 T., 441. It seems that surveys on genuine headright certificates are valid, though not recommended by commissioners. Howard v. Perry, 7 T., 259; Hart v. Gibbons, 14 T., 213. But under Act of January 29, 1840 (Gammei’s Laws of Texas, vol. 2, p. 313), authority to issue patents on first class headright certificates, was based on recommendation. Miller v. Brownson, 50 T., 583. Under extension of time allowed by Constitution of 1845, a survey made on an unrecommended certificate prior to January 1, 1844, suit to establish claim could be maintained in 1847. Lewis v. Mixon, 11 T., 564; Hart v. Gibbons, 14 T., 213; Scott v. Mather, 14 T., 235. Under Act of February 7, 1860 (Gammel’s Laws of Texas, vol. 4, p. 1410), providing for re-examination of rejected warrants and certificates, a rejection made before limit of time fixed in section 11 is not void, the object of the statute being to give claimants ample time to prove their claims. Durrett v. Land Commissioner, 28 T., 687. Under Act of April 25, 1871 (Gammel’s Laws of Texas, vol. 6, p. 962), holders of unlocated certificates were not required to locate them at any particular period between passage of law and January 1, 1875. Laws in force prior to Act of November 29, 1871 (Gammel’s Laws of Texas, vol. 7, p. 47), did not require certificate and field notes to be returned within twelve months after survey. Snider v. I. & G. N. Ry. Co., 52 T., 306; Snider v. Methvin, 60 T., 487. Under Rev. Stats. 1895, arts. 4138 and 4145, survey must be made within twelve months after entry, and field notes returned within twelve months after survey. Von Rosenberg v. Cuellar, 80 T., 249. So long as the title is imperfect or inchoate, the State may establish such regulations as it may deem necessary to perfect the title, and attach such terms as it may deem proper. It may even disavow. Land Commissioners v. Reily, Dal., 381; Johns v. Republic, Dal., 621; Hosner v. De Young, 1 T., 764; Jones v. Menard, 1 T., 771; Trimble v. Smithers, 1 T., 790; Land Commissioners v. Raguet, 2 T., 98; Norton v. Land Commissioner, 2 T., 357; League v. De Young, 2 T., 497; Kemper v. Victoria, 3 T., 135; Land Commissioners v. Riley, 3 T., 237; Smith v. State, 5 T., 397; Jones v. Borden, 5 T., 410; Warren v. Shuman, 5 T., 441; Land Commissioners v. Smith, 5 T., 471; Paschal v. Perez, 7 T., 348; Lewis v. Mixon, 11 T., 564; Hart v. Gibbons, 14 T., 213; Hamilton v. Avery, 20 T., 612; Peck v. Moody, 23 T., 93; Sherwood v. Fleming, 25 T. Supp., 408; Smith v. Taylor, 34 T., 589; Snider v. Methvin, 60 T., 487; Capp v. Terry, 75 T., 391; Jones v. Lee, 86 T., 25; Thompson v. Baker, 90 T., 163; League v. De Young, 11 How., 185. Applicant to establish headright claim under Acts of December 14, 1837, and February 4, 1841, was required to prove both actual residence at date of declaration of independence and continued residence to time of making application to establish claim. Republic v. Skidmore, Dal., 581; Jones v. Republic, Dal., 621; State v. De Casinova, 1 T., 401; Grooms v. State, 1 T., 568; Republic v. Skidmore, 2 T., 261; Tichner v. State, 2 T., 269; Land Commissioners v. Riley, 3 T., 237; Paschal v. Perez, 7 T., 348; Jones v. Montes, 15 T., 351. Under Act. of February 5, 1841 (Gammel’s Laws of Texas, vol. 2, p. 635), applicants for headright claims were required to make same proofs as under Act of December 14, 1837 (Gammel’s Laws of Texas, vol. 1, p. 1404). State v. De Casinova, 1 T., 401; Babb v. Carroll, 21 T., 765. The power of district courts to hear and determine headright claims was special, and a strict and literal compliance with all conditions, restrictions and limitations on this power was required to give jurisdiction. As a general rule, the suit could only be brought in the county where the claimant resided at the time of the passage of the law authorizing suit. State v. Manchaca, 1 T., 586; Jones v. Menard, 1 T., 771; State v. De Casinova, 1 T., 401; Linn v. State, 2 T., 317; Kempner v. Victoria. 3 T., 135; Land Commissioners v. Riley, 3 T., 237; Jones v. Borden, 5 T., 410; Capp v. Terry, 75 T., 391; Mexican Ry. Co. v. Jarvis, 80 T., 456.
    
   HEMPHILL, Justice.

Jesse Walling, in his petition, states that Joshua Seeting, then residing in the county of Nacogdoches, did on the day of the date of the declaration of independence sell and transfer to him the claim of the said Seeting to a league and labor of land, to which he was entitled as a resident citizen of Texas and head of a family; that having made application to the board of land commissioners, they refused to issue either to him as assignee, or to the said Seeting, a certificate for a league and labor of land. On the trial before the district court, the said Walling introduced in evidence the instrument purporting to transfer the head right of Seeting to himself, the district attorney excepting to its introduction. It was also proved that Seeting was a citizen of Texas at the date of the declaration of independence; that he was a married man, a head of family, and served in the army in 1835; but it was not proven that Seeting was here at the time of the application for the certificate to the board of land commissioners, nor was he here at the passage of the land law in 1837. The jury returned a verdict in favor of Walling, and from the judgment of the court thereon an appeal has been taken on behalf of the Republic to this tribunal. There are some questions arising from or intimately connected with the consideration of this cause of a magnitude and importance sufficient to exercise the deepest interest and to demand the most patient investigation, but as the urgent and unfavorable circumstances under which we are pressed to the hasty preparation of our opinion will not permit more than an imperfect examination of such point or points alone as are decisive of the controversy, our attention will in this case be directed to the single but controlling question of whether under the laws the appellee could sustain his claim to land as set forth in his petition, without proving, as required by the twelfth section of the land law of 1837, that his assignor was actually a resident of the Republic at the period of the application for the grant. By the provisions of the Constitution, lands are granted to all persons living in Texas at the period of its adoption, viz: to heads of families, one league and one labor of land; and to single men, one-third of a league. But although their claims have thus been sanctioned by the paramount authority of the Constitution, yet no mode was prescribed in that instrument by which an individual could obtain a separate portion of the public domain in satisfaction of his claim, or by which a title for the same might be secured or perfected. No surveys were authorized or titles ordered to be granted for that purpose, but on the contrary it was expressly declared that no survey or title, which might be made after the adoption of the Constitution, should be valid, unless such survey or title was authorized by the Convention, or some future Congress of the Republic. As no process then was provided by the Constitution by which such claimant might receive his share of the public lands, was it competent for those claimants or any of them to institute proceedings before the judicial tribunals of the country against the government, for the purpose of procuring a title or grant to a separate share of the public domain, without the previous sanction of legislative authority for the prosecution of such an action? That it is one of the essential attributes of sovereignty not to be amenable to the suit of a private person without its own consent, has grown into a maxim sanctioned as well by the laws of nations as the general sense and practice of mankind. Such an exemption is enjoyed by all independent sovereignties, and nowhere within the scope of our investigation has the institution of judicial proceedings to recover claims from a State or nation been regarded as a matter of natural, legal or constitutional right. Governments are instituted to promote the happiness of the whole community, but their beneficent powers would be paralyzed and their ends defeated were they subjected to the embarrassments, arising from the perpetual suits which, were they matters of right, could be prosecuted by every individual for the redress of real or supposed grievances. The experience of ages and the wisdom of the most enlightened statesmen and judicial expositors have sanctioned the doctrine, that less injury would arise from the delay or even the denial of justice to individuals than from the distraction and imbecility consequent upon the government’s being involved in continual and harassing controversies, at the will or caprice of every citizen in the community. We intend not, however, to consider or combat the objections which have been urged against this great conservative principle. It has long been established even in governments most favorable to human liberty, and can not be questioned or controverted That wise governments will always do justice to its individual citizens is to be presumed, but should it be refused or delayed, and if for reasons essential to the safety or welfare of the State, or if even from the mere exercise of despotic authority, the government would not consent that claims against itself should be adjudicated in courts of justice, it would be impossible to obtain relief through the instrumentality of judicial proceedings. The wrong might be of a grievous nature, but the powers of judicial tribunals, however great they may be, are not of a character so transcendent as to enable them to afford the remedy. Vide 3 Story on Const., p. 535; Federalist, No. 80; Chisholm v. Georgia, 2 Dall., 419; 2 Pet., 635, 674; 1 Black. Com., 241, 243; 1 Term Rep., 172.

As the appellee then could not sue the government without its consent expressed in a legislative act, let us inquire whether there is any such provision of law as would authorize him to appear before any tribunal and obtain any such warrant or order as would secure a survey and title for the amount of land embraced in his claim. By the eleventh section of an act to reduce into one act and amend the several acts relating to the establishment of a general land office, passed December 14, 1837, boards of land commissioners were established in the several counties for the investigation of headright claims to land, and upon the production of the proof prescribed by the law they were authorized and required to grant certificates to the claimants. The twelfth section provides for the number of witnesses, as well as the facts, which must be established before the issuing of a certificate; the purchaser of a headright being required to prove that the person represented as entitled to the same was actually a resident in the Republic at the time the application for the grant was made. The question arises, then, whether the appellee, as purchaser of Seeting’s headright, could obtain a certificate on any other proof than such as was required by the law. This authority to sue the Republic for his claim was derived from this law, and without this or some other legislative act it could not have been investigated by any tribunal, whether of limited or general jurisdiction. Can he then invoke the aid of this law for the purpose of perfecting his title, with complying with the conditions which qualify the tender of its assistance? As it was through the agency of Congress alone that land claims could be established into grants, it was surely competent for that body to prescribe the conditions and proofs essential to the recognition of these claims, and its power for that purpose is assuredly not to be questioned, when its exercise does not conflict with any of the provisions of the Constitution. We can not perceive that this fundamental law is violated by the requisition of the statute, that where claims, similar to the one in dispute, are set up against the government, the purchaser should be required to prove that his vendor was a resident of the Republic at the period of the application for the grant. We will not now enter upon a review of the various provisions of the Constitution to sustain this position, nor do we intend to decide any questions relative to sales of lands, or the requisites which may be supposed essential to their validity. Under the law of 1837, purchasers of headrights are entitled to certificates therefor, on making the necessary proof. This law only provides for such claims as are recognized under the same. It does not' invalidate, in express terms, any claims to lands of any description, if we except the prohibition of suit by alien empresarios, though there may be various classes thereof, for the establishment of which no provision has been made. Should there be such claims in existence, they must, without further legislative action, continue to lie, as they do now, in a dormant condition. Legislative energy can alone quicken them into life, and sustain them to maturity; they can neither be surveyed nor perfected into a grant, and if they were, neither the surveys nor title could possess validity, the same having been made without the sanction of the Convention, or of a Congress of the Republic. It is hereby ordered, adjudged and decreed, that the judgment of the district court be and the same is hereby reversed.

Reversed.  