Weber v. Rogan

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.

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 $1 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 $1 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, 54 S. W. 1016), subsequently granted a rehearing (94 Tex. 67, 55 S. W. 559), and upon such rehearing filed an opinion refusing the writ (94 Tex. 67, 57 S. W. 940).

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 of sections of public school lands situated in counties organized prior to January 1, 1875, at $1 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.

Messrs. F. Charles Hume and M. E. Kleberg for plaintiff in error.

Mr. C. K. Bell for defendant in error.

Mr. Justice Brown delivered the opinion of the court: