The Supreme Court of the Texas having decided that the statute
of that state, Acts of 1897, c. 129, providing that certain lands
may be sold at a specified price under certain conditions by the
Commissioner of the General Land Office was not mandatory, but that
it was discretionary with the Commissioner whether to sell such
lands or not, no federal question arises which this Court can
consider in a proceeding brought to compel the Commissioner to
convey certain lands under such act to a person offering to
purchase the same at the price specified in the act.
The constitutional inhibition against the impairment of
contracts applies only to legislative enactments of the states and
not to the judicial decisions or acts of the state tribunals or
officers, under statutes in force at the time of the making of the
contract, the obligation of which is alleged to have been
impaired.
This was an original petition filed in the Supreme Court of
Texas by the plaintiff in error, Weber, against Charles Rogan,
Commissioner of the general land office of the state, praying for a
writ of mandamus directing such Commissioner to award to the
petitioner two isolated and detached sections of the public school
lands, situated respectively in Polk and Jefferson Counties, in the
State of Texas.
Page 188 U. S. 11
The petitioner alleged in substance that, on August 11, 1899,
being desirous of purchasing such lands, he applied to the
Commissioner for the same at the price fixed by law, $1 per acre,
and otherwise fully complied with the terms of sale offered by law
authorizing him to become the purchaser; that the Commissioner
refused and rejected his applications, for the reason that the two
sections applied for had theretofore been classified -- the first
as timber land, and the second as grazing land, to neither of which
the law was applicable -- and could not be purchased under the law
in force at the date of the application for $1 per acre, though
such grazing and timber lands were isolated and detached from other
public lands, and were situated in counties organized prior to
January 1, 1875, and that there was no law under which the
petitioner could have lawfully awarded to him the two said sections
at one dollar per acre. Petitioner admitted that said two sections
were classified by the Commissioner -- one as timber land and the
other as grazing land -- but averred that such classification was
of no force or effect because the provisions of the law requiring
lands belonging to the public school fund to be classified did not
relate or apply to isolated and detached sections, or fractions of
sections of such lands, situated in counties organized prior to
January 1, 1875, but that the price of said lands was at that time
fixed by law at one dollar per acre, irrespective of any
classification made of said lands either before or after the time
they became isolated and detached. That, by application to the
Commissioner and depositing with the treasurer of the state the
amount due therefor, he became the purchaser of said two sections,
and the Commissioner was without authority to withhold from him
said lands.
Upon this petition, the case was submitted upon briefs and oral
arguments to the supreme court, which awarded a mandamus, 94 Tex.
63, subsequently granted a rehearing, 94 Tex. 67, and upon such
rehearing, filed an opinion refusing the writ, 94 Tex. 67.
Whereupon petitioner applied and was granted a writ of error
from this Court, and assigned as error that the state had offered
to sell all isolated and detached sections and fractions
Page 188 U. S. 12
of sections of public school lands situated in counties
organized prior to January 1, 1875 at one dollar per acre; that
this offer by the state was accepted by the petitioner, and that
such acceptance constituted a contract between the state and the
purchaser, and that, by holding that the Commissioner of the land
office might decline to award the petitioner the lands applied for,
the court gave a construction to the statue which impaired the
obligation of such contract.
MR. JUSTICE BROWN delivered the opinion of the Court.
At the time the petitioner made his applications to the
Commissioner of the land office for the purchase of these lands,
the following law was in force, 2 Batt's Rev.Stat. art.
4218
y:
"The Commissioner of the general land office may withhold from
lease any agricultural lands necessary for the purpose of
settlement, and no agricultural lands shall be leased if, in the
judgment of the Commissioner, they may be in immediate demand for
settlement, but such lands shall be held for settlement and sold to
the actual settlers only, under the provisions of this chapter, and
all sections and fractions of sections, in all counties organized
prior to the first day of January, 1875, except El Paso, Presidio,
and Pecos Counties, which sections are isolated and detached from
other public lands,
may be sold to any purchaser, except
to a corporation, without actual settlement at one dollar per acre,
upon the same terms as other public lands are sold under the
provisions of this chapter."
Acts 1897, c. 129.
The supreme court held that the determination of the case
depended upon the question whether it was made by this law the
imperative duty of the Commissioner of the land office to sell all
isolated and detached sections and parts of sections
Page 188 U. S. 13
of the public free school lands to the first applicant without
regard to their classification, and that that construction depended
upon the question whether the words "may be sold to any purchaser"
implied a discretion in the Commissioner to refuse, or was to be
understood as equivalent to "shall," which would imply a duty upon
the part of the Commissioner to sell to any purchaser at the price
fixed, of one dollar per acre. At first, the court was of opinion
that the word "may" was used in the sense of "shall;" that no
discretion was vested in the Commissioner; that the general
provisions regulating the sale of public school lands did not apply
to isolated and detached sections and fractions of sections; that
they required no classification or appraisement; that the law of
1897 fixed their purchase price absolutely at one dollar per acre,
and that all that was necessary to acquire an inchoate title was to
make application to the Commissioner and tender the proportion of
the purchase money, required by law to be paid in cash, together
with the statutory obligations for the balance. Upon rehearing, the
opinion of the court was changed, and the majority came to the
conclusion that the word "may," as used in the statute, ought to be
construed in its literal sense, and as merely conferring the power
upon the Commissioner to sell land at one dollar per acre, but not
making it obligatory upon him to do so. The mandamus was denied.
Another rehearing was also denied.
There is hardly a semblance of a federal question in this case.
None such was noticed in the original petition or in either opinion
of the court, and it was not until after an application was made
for a rehearing that petitioner discovered that the act of the
legislature of 1895, as amended by the act of 1897, Rev.Stat. art.
4218
y, above cited, constituted a contract on the part of
the state to sell all isolated and detached sections and fractions
of sections of public school lands to any purchaser who would offer
one dollar per acre therefor, which had been impaired by the
supreme court of the state in holding that the Commissioner of the
land office might refuse to execute such contract by declining to
award the lands applied for, and therefore violated its
obligation.
Page 188 U. S. 14
We agree with the supreme court of the state that no contract
was created by this statute. Hence, there was none to be impaired.
We had occasion to hold in
Central Land Company v.
Laidley, 159 U. S. 103,
that we have no jurisdiction of a writ of error to a state court
upon the ground that the obligation of a contract has been
impaired, when the validity of the statute under which the contract
is made is admitted, and the only question is as to the
construction of the statute by that court, and in the same case, as
well as in
Hanford v. Davies, 163 U.
S. 273, we held that the constitutional inhibition
applies only to the legislative enactments of the state, and not to
judicial decisions or the acts of state tribunals or officers under
statutes in force at the time of the making of the contract, the
obligation of which is alleged to have been impaired.
In addition to this, however, the question was not made until
after the final decision of the state court, and upon application
for a rehearing. This was clearly too late.
Miller v.
Texas, 153 U. S. 535.
The writ of error is
Dismissed.
