Page:Federal Reporter, 1st Series, Volume 10.djvu/332

 320 FEDEBAIi BSPOBTEB. �over the veto of the president, and that Mercer was well aware of the opposi- tion of the people, as lie was present attending on the session attempting to procure from the congress an extension of the Peters contract, in which he was interested. �(5) That the opposition of the people continued, and that the convention of 1845 adopted an ordinauce denouncing colony contracts as uncoustitutional and void, and as operating a monopoly, to the exclusion of citizens, soldiers, and creditors of the republic, and providing that it should be the duty of the attorney general of the state, or the district attorney of the district in which any portion of the colonies might be situated, as soon as the organization of the state should be complete, to institute legal proceedings against all colony contractors, and providing that if any contracts should be found, upon such investigation, unconstitutional, illegal, or fraudulent, or that the conditions had not been complied with according to its terms, such contract should be adjudged null and void, but without prejudice to actual settlers. That said ordinance was adopted by a vote of the people, and thereby became a part of the fundamental law of the land, and that the state organization was com- pleted February 16, 1846. That in obedience to said ordinance J. W. Harris, attorney general of the state of Texas, on the eleventh day of October, 1846, flled a suit in the district court of Navarro county, in which county part of the Mercer grant was situated — a suit in the name of A. C. Horton, governor of the state, for and on behalf of said state, as plaintiff, against Charles Fenton Mercer and his associates, as defendants, alleging non-performance on the part of said Mercer and his associates, and illegality and unconstitutionality from the beginning, and praying that the contract be declared uull and void from the beginning. That said Mercer and his associates were duly and legally cited to appear and answer; and that thereafter, at the September term, 1848, the said suit was fully heard and determiued, and it was fuHy and flnally adjudged and decreed, upon the verdict of a jury, that the said contract of January 29, 1844, was null and void. That such judgment is still in full force, unreversed, and unavoided. �(6) That the parties in that suit are ideutical in interest and privity with the parties to this suit, and that the subject-matter is the same ; that ifavarro county had jurisdiction ; that Mercer and his associates were represented and had a fa'r trial ; and that the said judgment bas the force of the thing adopted, and the same is a full and complete bar to this action. �(7) That the state lias never, by the aet of February 3, 1850, nor by the act of August 12, 1870, nor by any other act, reeognized the validity of the Mercer contract. On the contrary, it bas always acted on the bheory of its invalidity, and all legislation in relation to its public lands, or in relation to relief to actual settlers in the Mercer colony limits, has stipulated against the con- tractors taking any benefit from the legislation. �(8) That no trust has ever been created in favor of Mercer and his associ- ates; no title has ever vested; no possession has been had; and that the com- plainant nor the Texas Association are not entitled to any of the pubie lands by reason of said contract, either for settlers or for premiums. �(9) That defendant is a sworn and bonded offlcer, governed by the laws of the state, and that by law, approved April 19, 1877, when questions may arise ��� �