In this case, application was made by the defendants below,
after judgment, to the Supreme Court of Texas for a writ of error
to the Court of Civil Appeals for the Second District for the
purpose of reviewing the judgment of that court, and the
application was denied.
Held that this Court has
jurisdiction to reexamine the judgment on writ of error to the
court of civil appeals.
In case of a change of phraseology in an article in a state
constitution, it is for the state courts to determine whether the
change calls for a change of construction.
Where there are two grounds for the judgment of a state court,
one only of which involves a federal question, and the other is
broad enough to maintain a judgment sought to be reviewed, this
Court will not look into the federal question.
When a state court has based its decision on a local or state
question, and this Court in consequence finds it unnecessary to
decide a federal question raised by the record, the logical course
is to dismiss the writ of error.
Page 163 U. S. 208
The State of Texas commenced this action against the defendants,
Bacon, Graves, and Gibbs, in the District Court of the County of
Mitchell, in the State of Texas, for the purpose of recovering the
possession of a large amount of land -- nearly 300,000 acres --
which it was alleged the defendants had unlawfully entered upon and
dispossessed plaintiff from, and the possession of which they
continued to withhold from plaintiff, the plaintiff being the owner
in fee simple of such land at the time when the defendants
dispossessed the state therefrom. Plaintiff also sought to recover
damages for the use and occupation of such lands, and judgment was
demanded for the possession of the land and for damages and for
costs of the suit, and for general relief.
The answer of the defendants set up several grounds for
specially excepting to the plaintiff's petition, upon all of which
the defendant prayed the judgment of the court. Joined with the
special exceptions, the defendants answered and stated that if the
defendants' demurrer and special exceptions should be overruled,
then they denied each and every allegation in plaintiff's petition
contained. They then alleged that they were citizens of the State
of Texas, and had been at the time of the passage of the Act of
July 14, 1879, and the act amendatory thereof passed on the 11th
day of March, 1881, in relation to the sale of public lands
belonging to the State of Texas, and they alleged that they had
performed all the requirements spoken of and provided for in those
acts for the purpose of purchasing a portion of the public lands of
the state, and that by the performance of such conditions they had
purchased the lands in question, and had duly tendered payment
therefor to the proper officer, which had been refused, and that
subsequently they had again tendered payment, and that the money
had been received, but the plaintiff had refused to convey the
title to the defendants as it was under legal obligations to do.
They further alleged that, having in all respects fully complied
with the provisions of the law in respect to the purchase of the
lands in question, their rights thereto became and were vested, and
the act of the legislature subsequent thereto, passed January 22,
1883, to repeal the law under
Page 163 U. S. 209
which the sales were made was, under Article II, Section 10,
subd. 1, of the Constitution of the United States, null and void as
affecting defendants' vested rights. They prayed for judgment that
the plaintiff take nothing by its suit and that the defendants have
and recover from and of the plaintiff the lands as herein claimed
by them, and for further relief.
The state filed its reply to the defendants' answer, and after
specially excepting to certain of the allegations of the answer as
insufficient, it alleged that the defendants were not entitled or
authorized to purchase the lands, and had not complied with the law
in reference thereto in any particular, and that if the defendants
had tendered the treasurer of the state the money for the lands as
alleged, the treasurer properly refused and declined to receive the
same for that the defendants had not purchased the same from the
plaintiff by complying fully with any existing law authorizing the
purchase or sale thereof, and that if the defendants or any of them
ever paid to the treasurer, in January, 1891, the sum of money in
said answered stated, the treasurer was not authorized by law to
receive it, and this defendants well knew, and that the payment was
made after full and explicit notice to defendants that plaintiff
repudiated and would vigorously contest the claim of the defendants
to said lands, and the defendants paid the same at their peril. The
court overruled the defendants' exceptions to the plaintiff's
petition, and the case came on for trial.
The questions sought to be raised herein by the plaintiffs in
error are stated by them to arise under the acts of the State of
Texas above mentioned, the one known as chapter 52 of the laws of
1879, and entitled "An act to provide for the sale of a portion of
the unappropriated public lands of the State of Texas and the
investment of the proceeds of such sale," which act was approved
July 14, 1879, and the other known as chapter 3 of the laws of the
same state, passed in 1883, and entitled "An act to withdraw the
public lands of the State of Texas from sale," approved January 22,
1883. The act of 1881, amending that of 1879, is immaterial to the
questions herein arising.
Page 163 U. S. 210
Section 1 of the act of 1879 provides for the sale of all the
vacant and unappropriated land of the State of Texas in certain
named counties thereof. Section 2 provided that any person, firm,
or corporation desiring to purchase any of the unappropriated lands
therein set apart and reserved for sale might do so by causing the
tract or tracts which such person, firm, or corporation desired to
purchase to be surveyed by the authorized public surveyor of the
county or district in which said land was situated. By section 3,
it was made the duty of the surveyor, to whom application was made
by responsible parties, to survey the lands designated in the
application within three months from the date thereof, and within
sixty days after said survey to certify to, record, and map the
field notes of said survey, and within said sixty days to return to
and file the same in the General Land Office, as required by law in
other cases. Section 5 provided that within sixty days after the
return to and filing in the General Land Office of the surveyor's
certificate, map, and field notes of the land desired to be
purchased, it should be the right of the person, firm, or
corporation who had had the same surveyed to pay or cause to be
paid into the Treasury of the state the purchase money therefor at
the rate of fifty cents per acre, and, upon the presentation to the
Commissioner of the General Land Office of the receipt of the state
treasurer for such purchase money, the commissioner was bound to
issue to said person, firm, or corporation a patent for the tract
or tracts of land so surveyed and paid for.
By section 1, chapter 3, of the Laws of 1883, it was enacted
"that all the public lands heretofore authorized to be sold
under an act entitled 'An act to provide for the sale of the
unappropriated public lands of the State of Texas and the
investment of the proceeds of such sale,' approved July 14, 1879,
be, and the same are hereby, withdrawn from sale."
The proviso contained in the section is immaterial. Prior to the
adoption of the Revised Statutes of Texas, the manner in which
surveys of the public domain were to be made had been provided for
by law. It was provided that
"the courses of the line shall be determined by the magnetic
needle, and
Page 163 U. S. 211
care shall be taken to determine its variations from the pole in
the district where the surveys are made. Each survey shall be made
with great caution, with metallic chains made for the purpose, and
care shall be taken that the place of beginning of the survey of
each parcel of land be established with certainty, taking the
bearing and distance of two permanent objects at least."
This was long prior to the year 1879. The Revised Statutes of
Texas were passed in 1879, and took effect in September of that
year, and by article 3908 it was provided:
"The field notes of each survey shall state (1) the county or
land district in which the land is situated; (2) the certificate or
other authority under or by virtue of which it is made, giving a
true description of same by numbers, date where and when issued,
name of original grantee and quantity; (3) the land by proper field
notes, with the necessary calls and connection for identification
(observing the Spanish measurement for
varas); (4) a
diagram of the survey; (5) the variation at which the running was
made; (6) it shall show the names of the chain carriers; (7) it
shall be dated and signed by the surveyor; (8) the correctness of
the survey and that it was made according to law shall be certified
to officially by the surveyor who made the same, and also that such
survey was actually made in the field, and that the field notes
have been duly recorded, giving book and page; (9) when the survey
has been made by a deputy, the county or district surveyor shall
certify officially that he has examined the field notes, has found
them correct, and that they are duly recorded, giving the book and
page of the record."
The case came on for trial in the District Court of Mitchell
County in November, 1891. The following among other facts were
found by the court: on December 1, 1882, Bacon and Graves made
application to the surveyor of the Palo Pinto land district, as
such surveyor, to purchase the land in controversy under the
above-mentioned act of 1879, as amended March 11, 1881, which
application was received and recorded by the surveyor on the first
above-named date. Bacon and Graves paid the fees for filing the
field notes in the General Land Office entirely within the time
required by law. By the
Page 163 U. S. 212
records of the land office, the lands in question appeared to
have been surveyed at different times, and the field notes recorded
in the surveyor's office in some instances, but not in all. The
surveyor of the Palo Pinto land district certified to the
respective surveys on the dates the surveys purport to have been
made. None of the land included in this suit has ever been patented
by the state under the Bacon and Graves purchase, and on the 26th
of May, 1890, Bacon and Graves transferred, by deed of special
warranty, 579 sections of land to C.C. Gibbs, who holds the same in
trust for E. M. Bacon, E. G. Graves, and others.
It was further found as a matter of fact
"that none of the land in suit was actually surveyed upon the
ground by the deputy surveyor who purported to have done so, but
they merely copied in the office of the surveyor of the Palo Pinto
land district the field notes of the Elgin survey."
That survey was made in July, 1873, for the Houston & Texas
Central Railway Company, and the field notes of such survey were
returned to the surveyor's office some time in 1873, and were filed
in the General Land Office November 20 and 26, 1873. These field
notes were
"adopted by the surveyor of the Palo Pinto land district, and
his deputies, in making out the field notes of the land applied to
be purchased by Bacon and Graves."
The land had been actually surveyed on the ground by Elgin in
the manner in which it had been customary for surveyors in Texas to
survey large bodies of land -- by running the outside boundary
lines of the blocks, or parts of them, putting up permanent
landmarks, and leaving the interior lines without running. These
blocks, in writing up the field notes, were divided into 640-acre
surveys, and the interior surveys were made without actually
running the lines, and Elgin did not run all the lines of any
section, unless, as he says, it was done by accident. It had been
found by deputy surveyors, prior to the adoption of the field notes
for Bacon and Graves, that the lines run and ascertained by the
Elgin survey were as correct as any work of that character in that
part of the state, and the deputy surveyors were satisfied as to
their substantial accuracy. The deputy surveyors
Page 163 U. S. 213
were deputies under Joel McKee from December, 1882, to March,
1883, and McKee was the surveyor of the Palo Pinto district, in
which the land in question lay.
On May 16, 1883, the defendants tendered to the treasurer of the
state $80,640, and on May 19, 1883, they tendered him the further
sum of $104,640, in payment for these lands. These tenders were
refused. In January, 1891, Bacon and Graves paid the treasurer
$149,320 for said lands, which was received by him "under
protest."
The court, as conclusions of law, found (1) that Bacon and
Graves were not responsible parties within the meaning of the
statute at the time they applied to purchase this land, and could
not purchase under the law; (2) that they did not comply with the
law by having the lands surveyed as was required be law, and
therefore could not purchase it; (3) the survey, as adopted, was
not made in accordance with law, is incorrect (totally so), in
having a greater frontage on permanent water than is permitted
under the acts of 1879 and 1881; (4) Bacon and Graves have never
paid or offered to pay for said land until long after the
expiration of the time allowed and required by law. The purported
surveys of many of the sections of land for which they tendered
payment on May 19, 1883, were made after the fifty-cent act was
repealed, and Bacon and Graves did not separate or offer to
separate in their tender the surveys made before the repeal from
those made after, and there was consequently no legal tender; (5)
at the time Graves entered into an agreement with Bacon to purchase
these lands, he was an employee of the General Land Office, and his
action was against the civil and criminal laws of the state; (6)
that the state was not bound to return the money paid in January,
1891, to entitle it to judgment for the land.
Judgment for the recovery of the lands was duly entered, and the
defendants appealed from that judgment to the Supreme Court of
Texas, which court duly ordered the same to be transferred to the
Court of Civil Appeals for the Second Judicial District, before
which the case was heard on appeal. That court adopted the findings
of fact filed by the court below, excepting it set aside the
finding that the defendants
Page 163 U. S. 214
were not responsible parties, and so could not purchase any
land.
The court also gave an explanation as to the finding of the
trial court that the money was received by the state treasurer
"under protest," such explanation being that
"by the word 'protest,' as used in the finding, is meant that
the treasurer of the state had several times refused to accept this
money, and at the time he received it, in January, 1891, the
parties paying fully understood that the state would contest their
claim to the land, and the treasurer did not receive the money as a
legal payment therefor."
After argument, the court of civil appeals in all things
affirmed the judgment of the court below. The appellants duly asked
for a rehearing for reasons assigned by them in their amended
motion therefor. The motion was denied, and judgment duly entered
affirming in all things the judgment against the defendants for the
recovery of the lands in question. The defendants then presented a
petition to the Supreme Court of the State of Texas for the
allowance of a writ of error, to enable that court to review the
judgment of the court of civil appeals. The application for this
writ of error was refused by the supreme court, and an order
refusing it was sent to the clerk of the court of civil appeals,
pursuant to a rule of the supreme court.
The assignments of errors by the defendants on their appeal to
the court of civil appeals contain an assignment of error in that
they had acquired a vested right to the lands, by the survey
thereof as made for them, under the act of 1879, prior to the
repeal of that act by the repealing act of 1883, and which right
could not be affected by such repeal. The court of civil appeals
held that there was no contract between the parties, because of the
failure of the defendants to have such surveys made as were called
for under the act of 1879.
The assignment of errors filed on the allowance of the present
writ of error contains, among other grounds of error, the failure
of the court to hold that the Act of the Legislature of Texas
approved January 22, 1883, was repugnant to the Constitution of the
United States, in that said act impaired the
Page 163 U. S. 215
obligation or validity of the contract for the purchase of said
lands between the State of Texas and said appellants, arising under
and created by said Acts of the legislature of Texas approved July
14, 1879, and March 11, 1881.
MR. JUSTICE PECKHAM, after stating the facts, delivered the
opinion of the Court.
The first question which arises in this case is in regard to our
jurisdiction to review the judgment of the court of civil appeals
of the State of Texas. Some question was made in regard to the
regularity and sufficiency of the writ of error from this Court to
the court of civil appeals, as that court is not the highest court
in the state. We think, however, the criticism is not well founded.
So far as this case is concerned, that court is the highest court
of the state in which a decision in this suit could be had. An
application was made to the Supreme Court of the State of Texas for
a writ of error to the Court of Civil appeals for the Second
District, by the defendants in the court below, after judgment in
the latter court, for the purpose of reviewing the judgment of that
court, but the supreme court denied the application, and thus
prevented, by its action, a review by it of the judgment of the
court of civil appeals. The judgment of that court has therefore
become the judgment of the highest court of the state in which a
decision in the suit could be had, and this Court may, so far as
this point is concerned, reexamine the same on writ of error, under
the provisions of section 709,
Page 163 U. S. 216
Revised Statutes of the United States;
Gregory v.
McVeigh, 23 Wall. 294;
Fisher v. Perkins,
122 U. S. 522;
Stanley v. Schwalby, 162 U. S. 255.
Assuming that the record is properly brought here by virtue of
the writ of error granted by this Court, the question arises as to
what, if any, jurisdiction we have to review the judgment of the
state court. Our only right to review it depends upon whether there
is a federal question in the record which has been decided against
the plaintiffs in error. Rev.Stat. ยง 709.
Where the federal question upon which the jurisdiction of this
Court is based grows out of an alleged impairment of the obligation
of a contract, it is now definitely settled that the contract can
only be impaired, within the meaning of this clause in the
Constitution and so as to give this Court jurisdiction on writ of
error to a state court, by some subsequent statute of the state
which has been upheld, or effect given it, by the state court.
Lehigh Water Co. v. Easton, 121 U.
S. 388;
New Orleans Waterworks Co. v. Louisiana
Sugar Refining Co., 125 U. S. 18;
Central Land Co. v. Laidley, 159 U.
S. 103,
159 U. S. 109.
As stated in the case reported in 125 U.S.,
supra, it is
not necessary that the law of a state, in order to come within this
constitutional prohibition, should be either in the form of a
statute enacted by the legislature in the ordinary course of
legislation or in the form of a constitution established by the
people of the state as their fundamental law. A bylaw or ordinance
of a municipal corporation may be such an exercise of legislative
power delegated by the legislature to the corporation, as a
political subdivision of the state, having all the force of law
within the limits of the municipality, that it may properly be
considered as a law within the meaning of this article of the
Constitution of the United States.
If the judgment of the state court gives no effect to the
subsequent law of the state, and the state court decides the case
upon grounds independent of that law, a case is not made for review
by this Court upon any ground of the impairment of a contract. The
above-cited cases announce this principle.
Page 163 U. S. 217
The case of
Wilmington & Weldon Railroad v.
Alsbrook, 146 U. S. 279,
decides nothing that is repugnant to it. In that case, the
jurisdiction of this Court was questioned on the ground that the
contract of exemption mentioned in the act of 1834 was acknowledged
to be valid by the Supreme Court of North Carolina, and it simply
denied that particular property was embraced by its terms, and, as
a consequence, it was claimed that the decision did not involve a
federal question. To which this Court replied, speaking by MR.
CHIEF JUSTICE FULLER, as follows:
"In arriving at this conclusion, however, the state court gave
effect to the revenue law of 1891, and held that the contract did
not confer the right of exemption from its operation. If it did,
its obligation was impaired by the subsequent law, and as the
inquiry whether it did or not was necessarily directly passed upon,
we are of opinion that the writ of error was properly allowed."
So in
Mobile & Ohio Railroad v. Tennessee,
153 U. S. 486. In
that case, it was contended that this Court had no jurisdiction to
review the judgment of the Supreme Court of Tennessee because the
decision of that court proceeded upon the ground that there was no
contract in existence, between the railroad company and the state,
to be impaired, and that the supposed contract was in violation of
the state constitution of 1834, and hence not within the power of
the legislature to make. In truth, however, the court in its decree
gave effect to the subsequent statute of Tennessee, which it was
claimed impaired the obligation of the contract entered into
between the state and the railroad company, and under those
circumstances this Court exercised jurisdiction to review the
decision of the state court on the question as to whether there was
a contract or not, and as to the meaning of the contract, if there
were one, and whether it had been impaired by the subsequent
legislation to which effect had been given.
Both these cases have been cited by the counsel for plaintiffs
in error as authorities for the jurisdiction of the court in this
case. Inasmuch as the judgments of the state courts, in both cases,
gave effect to the later statutes, they are governed by the
principle set forth in 125 and 159 U.S.,
supra. It
Page 163 U. S. 218
becomes necessary, therefore, in the examination of this case,
to inquire whether the federal question has been raised in the
courts of the state, and if so, whether the judgment of the state
court is founded upon, or in any manner gives the slightest effect
to, the subsequent act of 1883.
The statement of facts already given shows that the only
allusion made to the act of 1883 in the pleadings was made by the
defendants. No claim was made by the plaintiff, the State of Texas,
by either of its pleadings of any right accruing to it by virtue or
under the provisions of the last-named act. The trial court, in its
findings, sets forth at length and in detail the various times in
which the surveys were made, and the field notes filed, of the
lands in question, and then states that none of the land in suit
was actually surveyed upon the ground by the deputy surveyors who
purported to have done so, but they merely copied in the office of
the surveyor of the Palo Pinto land district the field notes of the
Elgin survey. What that Elgin survey was is also set forth in the
foregoing statement, and upon these facts the court found as a
conclusion of law that the defendants did not comply with the law
by having the land surveyed as was required by it, and therefore
could not purchase such land. Assuming there was a federal question
properly raised, we also find in the record a broad and
comprehensive holding that the defendants never complied with the
act of 1879, and never made the surveys necessary to be made under
the law of Texas in order to vest them with any rights whatsoever
under that act. This ground of judgment is founded upon a matter of
state law, and makes no reference whatever to any subsequent act of
the legislature, and in no way upholds that act or treats it as of
the least force or virtue, any more than if the act had never been
passed. If it never had been passed, and the defendants had made
this same claim of having a contract for the purchase of the lands
by reason of the things done under the act of 1879, and the court
had decided upon their claim in the same way it has done in this
case, it is beyond question that this Court would have no
jurisdiction to review that decision of the state court, however
erroneous it might be regarded by us.
Page 163 U. S. 219
The case is not altered by the fact that the state has passed an
act which the defendants assert impairs the obligation of their
contract, so long as the court, in deciding their case, holds that
they never had a contract because they never had complied with the
provisions of the original statute, and so long as it gives
judgment wholly without reference to the subsequent act and without
upholding or in any manner giving effect to any provision
thereof.
Whether the statute of 1879 permitted a survey to be adopted
from a survey which had previously been made in the field or
whether it did not was a case of construction of a state statute by
the state court. It is not one of those cases where this Court will
construe the meaning of a state statute for itself. This Court,
even on writ of error to a state court, will construe for itself
the meaning of a statute as affecting an alleged contract where it
is claimed that a subsequent statute passed by the state has
impaired the obligations of the contract as claimed by the party
and where such subsequent statute has, by the judgment of the state
court, in some way been brought into play, and effect been given to
some or all of its provisions. In such a case, this Court construes
the contract in order to determine whether the later statute
impairs its obligation.
Louisville Gas Co. v. Citizens' Gas
Co., 115 U. S. 683,
115 U. S. 697.
This is not such a case. The later statute is not given effect to
by the judgment of the court.
The State of Texas, by the act of 1883, withdrew its public
lands from sale. The prior act of 1879 had offered them for sale.
Whether the act of 1883 withdrew them or not could have no bearing
upon the question whether these defendants had complied with the
act of 1879 in relation to having the surveys made of the lands
which they applied to purchase. If the lands had not been
withdrawn, the parties' rights in them would depend upon whether
they had been surveyed, and if they had not, they had no right to
them. Whether they had or had not complied with the act of 1879 was
not a federal question. If the court had decided that the survey
actually made was a sufficient compliance with the act,
Page 163 U. S. 220
but that defendants obtained no vested rights in the land by
virtue of such survey, and that the act of 1883 was effectual in
withdrawing such lands from market, that decision would have been
reviewable here, and in that case this Court would determine for
itself what rights the parties obtained under the act of 1879, and
whether, by what they had done, they had obtained any rights which
could not be unfavorably affected by the act of 1883.
It is, however, urged that the Texas courts for many years had
construed the acts passed by the state relating to surveys of its
public lands as permitting what are termed "adoptive surveys"
(
i.e. surveys adopted from those which had once been made
in the field), and that the act of 1879, in simply providing for
surveys of lands for which applications to purchase might be made,
left it to the general law, which provided the details and manner
of carrying out such survey. The construction of the general law
which had been thus given by the courts upon the question of what
was a sufficient survey, it is claimed, had become a rule of
property which parties were entitled to rely upon and which no
court could overturn, and if it did so, a contract was impaired and
the judgment was reviewable by this Court. The proposition cannot
be maintained as a basis for giving this Court jurisdiction upon
writ of error to the state court. It ignores the limit to our
jurisdiction in this regard, which, as has been seen, is confined
to legislation which impairs the obligation of a contract. 125 and
159 U.S.,
supra.
The argument involves the claim that jurisdiction exists in this
Court to review a judgment of a state court on writ of error when
such jurisdiction is based upon an alleged impairment of a contract
by reason of the alteration by a state court of a construction
theretofore given by it to such contract or to a particular statute
or series of statutes in existence when the contract was entered
into. Such a foundation for our jurisdiction does not exist.
It has been held that where a state court has decided in a
series of decisions that its legislature had the power to permit
municipalities to issue bonds to pay their subscriptions to
Page 163 U. S. 221
railroad companies, and such bonds had been issued accordingly,
if in such event suit were brought on the bonds in a United States
court, that court would not follow the decision of the state court
rendered after the issuing of the bonds, and holding that the
legislature had no power to permit a municipality to issue them,
and that they were therefore void. Such are the cases of
Gelpcke v. City of
Dubuque, 1 Wall. 175, and
Douglas v. County of
Pike, 101 U. S. 677. In
cases of that nature, there is room for the principle laid down
that the construction of a statute, and admission as to its
validity, made by the highest court of a state prior to the issuing
of any obligations based upon the statute, enter into and form a
part of the contract, and will be given effect to by this Court as
against a subsequent changing of decision by the state court by
which such legislation might be held to be invalid. But effect is
given to it by this Court only on appeal from a judgment of a
United States court, and not from that of a state court. This Court
has no jurisdiction to review a judgment of a state court made
under precisely the same circumstances, although such state court
thereby decided that the state legislation was void which it had
prior thereto held to be valid. It has no such jurisdiction,
because of the absence of any legislation subsequent to the issuing
of the bonds which had been given effect to by the state court. In
other words, we have no jurisdiction because a state court changes
its views in regard to the proper construction of its state
statute, although the effect of such judgment may be to impair the
value of what the state court had before that held to be a valid
contract. When a case is brought in the United States court, comity
generally requires of this Court that, in matters relating to the
proper construction of the laws and Constitution of its own state,
this Court should follow the decisions of the state court; yet in
exceptional cases, such as
Gelpcke and others,
supra, it is seen that this Court has refused to be bound
by such rule, and has refused to follow the later decisions of the
state court. A writ of error has been dismissed in this Court,
Railroad Company v.
McClure, 10 Wall. 511, where the judgment sought to
be reviewed was that of a state court holding
Page 163 U. S. 222
certain bonds were void upon precisely the same facts that this
Court in the
Gelpcke case held were valid. There was no
subsequent legislative act impairing their obligation, and hence
this Court had no jurisdiction to review the judgment of the state
court.
Considerable stress has been laid upon the case of
Louisiana
v. Pilsbury, 105 U. S. 278, as
an authority for the proposition that this Court has jurisdiction
even though the judgment of the state court gives no effect to the
subsequent state legislation, and also for the proposition that the
obligation of a contract may be impaired by a change in the
construction given to it by the courts of a state, and that a
federal question, under the contract impairment clause of the
Constitution, is thus presented which may be reviewed in this
Court. It is stated that the Supreme Court of Louisiana in that
case confined its decision to the unconstitutionality of the act of
1852, under which the bonds were issued, and that its judgment
proceeded wholly without reference to the subsequent acts of the
legislature which were claimed to impair the obligations of the
contract based upon the act of 1852, and it is argued that unless a
federal question were presented, even where no effect was given to
subsequent legislation or by the fact that the state court, in
holding the act of 1852 unconstitutional, varied from its former
decisions in that regard, and thereby impaired the obligation of a
contract, this Court would have had no jurisdiction to hear and
decide the case as it did. A portion of the opinion of one of the
judges of the Supreme Court of Louisiana is quoted in which it is
stated that they find it unnecessary to pass upon the subsequent
statute which was alleged to have impaired the contract of 1852
because the views which had already been expressed, declaring the
act of 1852, under which the bonds were issued, unconstitutional,
were sufficient to dispose of the case. An examination of the
record in that case shows neither proposition for which it is cited
is therein decided.
When the case was brought to this Court by writ of error, a
motion was made to dismiss the writ on the ground that the case was
decided by the state court upon a question of state
Page 163 U. S. 223
law, and without reference to any statute which plaintiffs in
error alleged impaired their contract. The decision of the motion
was postponed to the argument upon the merits, and, upon that
argument, counsel for plaintiffs in error, clearly recognizing the
necessity they were under of showing that the state court did give
effect to the subsequent legislation in order to show the existence
of a federal question, claimed that it appeared in that record that
no judgment could have been given for the defendant in error in the
court below without necessarily giving effect to some of the
subsequent legislation, and they claimed that an examination of the
whole record would show such fact notwithstanding the statement
contained in one of the opinions of the state court, already
alluded to. They also alleged there was no question of state law
passed on by the court below sufficiently broad to have sustained
the decision without passing on this federal question. The argument
in favor of the jurisdiction, as thus placed by the counsel for the
plaintiffs in error, seems to have been sufficient to convince the
Court; for in its opinion the question of jurisdiction is not
adverted to in any way, and is assumed to exist. Of course, having
jurisdiction to review the state court in regard to this federal
question, it then became proper for this Court to determine for
itself what was the contract, and whether it had been impaired by
any subsequent legislation of the state. In determining what the
contract was, the opinion cites many cases in the state court which
had been decided regarding the Constitution of that State of 1845,
which was in existence at the time the act of 1852 was passed, and
it was stated that the exposition made by the courts of the state
in regard to its Constitution or laws in existence at the time when
the obligations were issued under them was to be treated as a part
of the contract, and formed a basis for determining what that
contract was.
There is no decision in the case which gives the least support
to the proposition that jurisdiction exists in this Court to
review, on writ of error to a state court, its holding as to what
the contract was simply because it had changed its construction
Page 163 U. S. 224
thereof, nor that the obligation of a contract may be impaired
within the contract clause of the federal Constitution unless there
has been some subsequent act of the legislative branch of the
government to which effect has been given by the judgment of the
state court. The case may therefore be regarded as in entire
harmony with the later cases on the subject mentioned in 125 U.S.
and 159 U.S.,
supra. The opinion proceeds upon the
assumption that effect had been given to this subsequent
legislation, and it proves that such legislation impaired the
contract as construed here.
This case, however, is not, in its facts, within the claim made
by the counsel for the plaintiffs in error. In this case, there has
in truth been no change in the construction of the state statute
regarding what constitutes a sufficient survey under its provisions
as claimed by counsel. The sales act of 1879 provided that surveys
should be made, and at that time, it is said, a statute was in
force which provided for making surveys of public lands, as
follows:
"SEC.19. The surveyors shall make oath before the respective
commissioners truly and faithfully to discharge the duties of their
office."
"SEC. 20. The course of the lines shall be determined by the
magnetic needle, and care shall be taken to determine its
variations from the pole in the district where the surveys are
made."
"SEC. 21. The surveys shall be made with great caution, with
metallic chains made for the purpose, and care shall be taken that
the place of beginning the survey of each parcel of land be
established with certainty, taking the bearing and distance of two
permanent objects at least."
(Sayles' Early Laws, vol. 1, p. 100.)
Under that act, and acts similar thereto, the Supreme Court of
Texas, as has been stated, had for many years recognized the
adoption of surveys previously made as being a legal survey within
the spirit of those laws. These surveys were, however, not made
under the provisions of the act just quoted. Soon after the passage
of the act of 1879, and in that same year, the Revised Statutes of
Texas were adopted,
Page 163 U. S. 225
article 3908 of which has already been given in the above
statement of facts, and subdivision 8 of that article may be here
again set forth. It reads that
"the correctness of the survey and that it was made according to
law shall be certified to officially by the surveyor who made the
same,
and also that such survey was actually made in the
field, and that the field notes have been duly recorded,
giving the book and page."
Thus it will be seen that the old law had been altered at least
three years previous to the application for the purchase of these
lands made by the defendants, and the court of civil appeals of
Texas in this case has stated in the course of its opinion with
reference to section 3908 as follows:
"We think the principal object of the legislature in requiring
such strictness in the certificate to be made by the surveyor was
to correct the abuse to which the previous law had been subjected,
as above indicated, and we think it must be conceded, if the
legislature had the power to condemn what is commonly known as an
'office survey,' or 'office work,' and to require its officer,
before parting with the public lands of the state, to have the
survey actually done in the field, it has done so by the passage of
this statute."
The plaintiffs in error claim, however, that the Revised
Statutes were but a simple revision of the laws of Texas, not meant
to work any change therein, and that the different language in
which this article is couched, from that existing in the former
law, ought to be regarded as working no alteration in the meaning
of the law, and that it should be construed in the same manner as
the law whose place it took. Whether this article in question was
or was not a mere revision and continuation of existing law, and
whether the changed phraseology properly called for a change of
construction, were questions entirely for the state court to
determine. The state court, while acknowledging that under the old
law an adoptive survey was good, held that under the new law, a
survey in the field was necessary. This is no change of
construction of the same act, and cannot therefore form a basis for
the argument of counsel for plaintiffs in error that a change of
construction of the same statute may work an impairment of the
obligations of the contract
Page 163 U. S. 226
so that a judgment of the state court thereon may be reviewable
here. The Court is under no obligation to put the same construction
upon a later statute that it has placed upon an earlier one, though
the language of the two may be similar.
Wood v. Brady,
150 U. S. 18. But
it is unnecessary to dwell upon this difference between the two
statutes, because, under such circumstances as exist in this case,
the decision of the state court regarding it is not reviewable here
on a writ of error to that court.
We have thus far treated this case as if the sole question
arising in it were not of a federal nature. It will be seen,
however, that certain tenders were made to the Treasurer of the
State of Texas in payment for lands claimed by the defendants to
have been purchased by them, and some of those tenders were held by
the trial court to have been insufficient because they included
tenders of payment for some lands where the surveys had been made
after the passage of the act of 1883, repealing the act of 1879, as
well as for surveys made before that time, and the defendants did
not not separate, or offer to separate, in their tenders, the
surveys made before the repeal from those made after, and there was
consequently, as the trial court held, no legal tender for any of
the surveys, and upon these facts, the court founded a conclusion
of law (No. 4), which is as follows:
"Bacon and Graves have never paid or offered to pay for said
land until long after the expiration of the time allowed and
required by law. The purported surveys of many of the sections of
the land for which they tendered payment on May 19, 1883, were made
after the fifty-cent act was repealed, and Bacon and Graves did not
separate, or offer to separate, in their tender, the surveys made
before the repeal from those made after, and there was consequently
no legal tender."
That was one of five different grounds upon which the trial
court held that the defendants had not complied with the law and
were not entitled to purchase the lands in question. This
particular finding is in no way dependent upon the others, and they
are all entirely separate and distinct from one another. The
finding No. 2, that "they did not comply with the law, by having
the lands
Page 163 U. S. 227
surveyed as was required by law, and therefore could not
purchase it" is distinct and separate ground for the judgment of
the court to rest upon, to the same extent as if none other had
been stated, and it is entirely sufficient, in itself, upon which
to rest the judgment.
If the fourth finding, above set forth, had alone been made by
the court below, this Court, upon writ of error, would have had
jurisdiction to review the whole question, because by that finding
some effect is given to the subsequent act of the legislature which
it is claimed impaired the obligation of defendants' alleged
contract with the state; but where there are two grounds for the
judgment of the state court, one only of which involves a federal
question and the other is broad enough to maintain the judgment
sought to be reviewed, it is now settled that this Court will not
look into the federal question, inasmuch as there is another ground
upon which the judgment can rest, and it will dismiss the writ for
that reason.
Eustis v. Bolles, 150 U.
S. 361. In the course of the opinion in that case, which
was delivered by MR. JUSTICE SHIRAS, the case of
Beaupre v.
Noyes, 138 U. S. 397,
138 U. S. 402,
is cited, and the opinion in the latter case contains the following
statement:
"Whether the state court so interpreted the territorial statute
as to deny such writ to plaintiffs in error we need not inquire,
for it proceeds in part upon another and distinct ground, not
involving a federal question and sufficient in itself to maintain
the judgment without reference to that question."
The opinion, after stating what that ground was, thus
continues:
"That view does not involve a federal question. Whether sound or
not we do not inquire. It is broad enough in itself to support the
final judgment without reference to the federal question."
In
Rutland Railroad v. Central Vermont Railroad,
159 U. S. 630, it
is stated
"that where a state court, in rendering judgment, decides a
federal question and also decides against the plaintiff in error
upon an independent ground not involving a federal question and
broad enough to support the judgment, this Court will dismiss the
writ of error without considering the federal question."
To same effect are
Gillis
Page 163 U. S. 228
v. Stinchfield, 159 U. S. 658,
159 U. S. 660, and
Seneca Nation of Indians v. Christy, 162 U.
S. 283.
In such cases as this it has sometimes been the practice of this
Court to affirm the judgment, and sometimes to dismiss the
writ.
"An examination of our records will show that in some cases,
this Court has affirmed the judgment of the court below, and
sometimes has dismissed the writ of error. This discrepancy may
have originated in a difference of views as to the precise scope of
the questions presented. However that may be, we think that when we
find it unnecessary to decide any federal question, and that when
the state court has based its decision on a local or state
question, our logical course is to dismiss the writ."
Eustis v. Bolles, supra. Accordingly, the judgment in
the case last cited was one of dismissal. The same judgment was
given in the two cases in 159 U.S.,
Rutland R. Co. v. Central
Vermont R. Co. and
Gillis v. Stinchfield, and also in
the very latest case on the subject -- that of
Seneca Nation v.
Christy, 162 U. S. 283.
The proper judgment in this case should therefore be one of
dismissal, and the writ is accordingly
Dismissed.
