Page:Federal Reporter, 1st Series, Volume 10.djvu/340

 S2S FEDERAL REPORTER. �was to pass or be conveyed. If he did lie is remitted to the laws in force at the time of the making of the contraet. An examination of the laws of the republic, in force at the making of the contraet, fails to show any authority for the commissioner to issue land certificates. Many other officers and boards could issue them, but not the com- missioner. The contraet itself provides for no certificates to be issued by the commissioner. As I view the matter, therefore, under the laws of Texas, to operate the conveyance of title emanating from the state to public lands, either by patent or certificates, the act of the governor of the state is necessary, and the governor is no party to this suit. �The case of Davis v, Gray, aflSrming Osborne v. U. S. Bank, on the subject of making, and requiring the state to be made, a party where the state is eoncerned, is very strong, and I feel bound to go as far as that case; but I must leave to the supreme court togo further, or declare the law that the courts of the United States can go further. �Article 11 of the amendments to the constitution of the several states was adopted in the interest of and for the protection of the sev- eral states. To construe it so as to allow the property of a state to be alienated or conveyed in a suit against a subordinate officiai of the state, is not only to nullify the amendment, but to put the state in a worse plight than if the amendment had not been adopted, for with- out the amendment the state would always have her day in court. �The complainant also asks an injunction to restrain the defendant, as land commissioner of the state, from issuing any further patents and certificates for any of the vacant and unlocated lands of the state beyond and outside of the Mercer colony limits to any person what- soever, until the just demands of the complainant arising under the Mercer contraet and the public trust, created by the compact of an- nexation, to hold the public lands for the payment of the debts and liabilities of the republic, are fully compensated and satisfied, This demand in volves the proposition that the treaty or compact of annexation created sueh a trust in favor of the creditors of the republic as could be enforced in the courts of equity; in other words, that it contemplated that any creditor might sue the state and obtain a de- cree for the sale of sufficient of the public lands to satisfy his demand. I doubt if any such trust was contemplated or created, particularly in the face of the inhibition of the constitution of the United States as to the right to sue a state in the courts. That a great public trust was created, that the public faith was pledged, that the state of Texas may be bound in morals and good faith to apply the public lands as Btipulated in the treaty, I agree; but I doubt the power and authority ��� �