1. In this case -- where a person who had been appointed
receiver of a railroad to which a large grant of lands had been
made by a state was seeking to enjoin the officers of the state
which had declared the lands forfeited, from granting them to other
persons -- the Court states at large what is the office and what
are the duties of a receiver, giving to them a liberal
interpretation in aid of the jurisdiction of the court. It says
that in the progress and growth of equity jurisdiction, it has
become usual to clothe them with much larger powers than were
formerly conferred; that in some of the states, they are by statute
charged with the duty of settling the affairs of certain
corporations when insolvent, and are authorized expressly to sue in
their own names, and that the Court sees no reason why a court of
equity, in the exercise of its undoubted authority, may not
accomplish all the best results intended to be secured by such
legislation without its aid.
2. The doctrines of
Osborne v. Bank of the United
States affirmed, and the principles re-declared.
(
a) That a circuit court of the United States, in a
proper case in equity, may enjoin a state officer from executing a
state law in conflict with the Constitution or a statute of the
United States, when such execution will violate the rights of the
complainant.
(
b) That where the state is concerned, the state should
be made a party, if it can be done. That it cannot be done is a
sufficient reason for the omission to do it, and the case may
proceed to decree against her officers in all respects as if she
were a party to the record.
(
c) That in deciding who are parties to the suit, the
court will not look beyond the record. That making a state officer
a party does not make the state a party, although her law may
prompt his action, and
Page 83 U. S. 204
she may stand behind him as the real party in interest; that a
state can be made a party only by shaping the bill expressly with
that view, as where individuals or corporations are intended to be
put in that relation to the case.
3. The Memphis, El Paso & Pacific Railroad Company had not
(on the 20th of January, 1871), in view of the existence of the
rebellion, and of several statutes of Texas condoning its
noncompliance with conditions of its charter, lost its franchise or
its right of and to the land grant and land reservation of the
company given in its charter.
4. The articles 5 and 7 of the Constitution of Texas, made in
1869, which on an assumption that the company had then lost them,
disposed of the lands away from it, violated the obligations of a
contract and were void.
5. Where the State of Texas had made to it railroad company a
large grant of lands, defeasible if certain things were not done
within a certain time by the company, the fact that the so-called
secession of the state and her plunging into the war, and
prosecuting it, rendered it impossible for the company to fulfill
the conditions, in lad abrogated them.
6. However, as the court thought that the enforcement of the
legal rule in the particular case would work injustice, it declined
to apply such legal rule, and applying an equitable one held that
the conditions should still be complied with; but complied with in
such reasonable time, as would put the parties in the same
situation, as near as might be, as if no breach of condition had
occurred.
The State of Texas had at the times hereinafter named, certain
public lands. A general land office was established at the capital
of the state for the registration of titles and surveys, and the
lands were divided when surveyed into sections of six hundred and
forty acres each. One Kuechler was the chief of this office, under
the title of the "Commissioner of the General Land Office." All
certificates for the public lands were issued by this commissioner,
and all patents were issued under the seals of the state and the
General Land Office, and were required to be signed by the governor
and countersigned by the said commissioner. These certificates were
evidences of obligation on the part of the state to grant, and give
a patent to the holder for a certain amount therein mentioned of
the vacant and unreserved public lands of the state; when the
certificates are located and surveyed, and the surveys returned to
the commissioner
Page 83 U. S. 205
and approved by him, a patent, conveying the fee, is executed as
above mentioned.
In and about the year 1856, and for many years thereafter the
State of Texas, though of great extent, was, as it still is,
sparsely inhabited, while its public domain was far from markets,
and without connection with the more settled parts of the country;
and it was greatly to the interest of the state to attract
immigration and capital. To produce this result, it became the
settled policy of the state to make grants and reservations of
public lands to corporations, conditioned upon the construction of
certain amounts of railroad within certain times. In pursuance of
this policy, the Memphis, El Paso & Pacific Railroad Company
was incorporated February 4, 1856, by the State of Texas to build a
railroad across the state from the eastern boundary to El Paso,
with a land grant of 16 sections to the mile; certificates for 8
sections per mile to be issued on the grading of successive lengths
of road, and 8 more per mile upon the complete construction of the
same, and a reservation was granted of the alternate or odd
sections of land for eight miles on each side of the road, within
which the company should have an exclusive right to locate its
certificates, while it also had the privilege to locate said
certificates on any other unappropriated public lands.
This reservation, of course, was of the greatest value, as it
enabled the company to reap the advantage of the enhancement of
price which the construction of the road by them would cause in the
lands along the line.
In the same year of 1856, the company was organized in reliance
on the grants, and especially on the reservation, and duly accepted
the same.
There were certain conditions
precedent to the vesting
of the charter, land grant, and reservation, but they were all
complied with, and at a cost to the company for surveys of over
$100,000. These and subsequent surveys resulted, for the company,
in the official designation of the road line and the center line of
the reservation for some 800 miles, and the "sectionizing" and
numbering of the odd sections of
Page 83 U. S. 206
land in said reservation in a belt of country some 250 miles in
length and 16 in width; and for the state in the surveying and
mapping of the same belt of country and the "sectionizing" and
numbering of the alternate or even sections for the benefit of the
state. The company also graded some 65 miles of road westerly from
Moore's Landing, in Bowie County, and was interrupted in the work
of construction by the rebellion and so-called "secession" of
Texas, but resumed work after the war, and graded between 20 and 30
miles further, from Jefferson in Marion County, in the direction of
Moore's Landing.
There were certain conditions
subsequent annexed to the
charter,
viz., that if the company should not have
completely graded not less than 50 miles of their road by the 1st
of March, 1861, and at least 50 miles additional thereto within two
years thereafter, then the charter of said company should be null
and void. The first 50 miles were graded within the required time;
the second 50 miles have never been graded. Within two years after
the performance of the first condition, however, the Legislature of
Texas, by act "for the relief of railroad companies," approved
February 11, 1862, enacted, that the failure of any chartered
railroad company to complete any section, or fraction of a section,
of its road as required by existing laws, should not operate as a
forfeiture of its charter, or of the lands to which the said
company would be entitled under the provisions of an act entitled
"An act to encourage the construction of railroads in Texas by
donation of land," approved January 30, 1854; provided that the
said company should complete such section, or fraction of a
section, as would entitle it to donations of land, under existing
laws, within two years after the close of the war between the
Confederate States and the United States of America. Within the two
years after the close of the war, the provisional legislature, by
Act of November 13, 1866, enacted,
"that the grant of 16 sections of land to the mile to railroad
companies heretofore or hereafter constructing railroads in Texas
shall be extended, under the same restrictions and limitations
Page 83 U. S. 207
heretofore provided by law, for 10 years after the passage of
this act,"
and by article 12, section 33 of the present Constitution of
Texas, while declaring that the legislatures which sat from March
18, 1861, to August 6, 1866, were without constitutional authority,
yet enacted that such declaration should not affect prejudicially
private rights which had grown up under such acts, and that though
the legislature of 1866 was only provisional, its acts were to be
respected, so far as they were not in violation of the Constitution
and laws of the United States.
By Act of July 27, 1870, the Southern Transcontinental Railroad
Company was incorporated, and it was enacted, in terms, that it
might "purchase the rights, franchises, and property of the
Memphis, El Paso & Pacific Railroad Company, heretofore
incorporated by the state."
The land grant was limited to fifteen years from the 4th of
February, 1856, but this time had not yet expired, and by an act of
November 13, 1866, for the benefit of railroad companies, it was
enacted, that this grant of 16 sections of land to the mile to
railroads theretofore or thereafter constructing railroads in
Texas, should be extended under the same restrictions and
limitations theretofore provided by law, for ten years after the
passage of this act.
The land reservation was conditioned upon certain surveys:
1. It was to be surveyed from the eastern boundary of Texas, as
far as the Brazos River, within four years from March 1st,
1856.
2. The center line of the reserve was to be run and plainly
designated from the Brazos to the Colorado within fifteen months
from February 10, 1858.
3. The whole reservation was to be surveyed within ten years
from February 10, 1858.
4. The company was to have a connection with some road leading
to the Mississippi River or the Gulf of Mexico, within ten years
from February 10, 1858.
The first and second of these conditions were fulfilled within
the times limited. The legislature, by Act approved January 11,
1862, enacted that
"the time of the continuance of the present war between the
Confederate States and the United States of America shall not be
computed
Page 83 U. S. 208
against any internal improvement company in reckoning the period
allowed them in their charters, by any law, general or special, for
the completion of any work contracted by them to do."
This act the company considered extended the time for the
performance of the third and fourth conditions till the 10th of
June, 1873.
In the years 1867 and 1868 the company executed two series of
bonds, known as land grant bonds, amounting in the aggregate to the
par value of $10,000,000 in gold, and also executed and delivered
to one Forbes and others, trustees as aforesaid, two mortgages to
secure said bonds, by one of which they mortgaged all lands
actually acquired or thereafter to be acquired by said company by
grading, construction, and equipping the first 150 miles of the
road of said company, from Jefferson in Marion County to Paris in
Lamar County, and by the other of which they mortgaged the like
property for the second 150 miles, from Paris to Palo Pinto in Palo
Pinto County. These bonds were put on the bourse in Paris, France,
and sold for value to the extent of $5,343,700 of their par value,
mostly in small lots, and to persons of limited means. The grants,
guarantees, and assurances by the State of Texas to said company of
the said franchises, and especially of said land grant and land
reservation, were recited in said mortgages, and were also
announced and repeated to the purchasers personally, and by
advertisement and prospectus, and the purchasers took the bonds
relying on said grants, and upon the exclusive right of the company
to locate certificates within the territory so reserved.
The bonds not being paid the circuit court for the Western
District of Texas, on motion of Forbes, trustee under the mortgage,
on the 6th of July, 1870, enjoined the railroad company from
disposing of any of its effects, and put the road into the hands of
one John A. C. Gray as receiver:
"To take possession of the moneys and assets, real and personal;
roadbed, road, and all property, whatsoever, of the said Memphis,
El Paso & Pacific Railroad Company, wheresoever
Page 83 U. S. 209
the same may be found, with power under the special order of the
court, from time to time to be made, to manage, control, and
exercise all the franchises, whatsoever, of said company, and, if
need be, under the direction of the court, to sell, transfer, and
convey the road, roadbed, and other property of said company, as an
entire thing,"
&c.
On the 20th of January, 1871, it was further ordered by the
court:
"That the said John A. C. Gray receiver, as aforesaid, be and he
is hereby, authorized and empowered to defend and continue all
suits brought by or against the said Memphis, El Paso & Pacific
Railroad Company, whether before or after the appointment of said
receiver, and whether in the name of said company or otherwise;
defend all suits brought against him as such receiver or affecting
his receivership, and to bring such suits
in the name of said
company, or in the name of said receiver, as he may be advised
by counsel to be necessary and proper in the discharge of the
duties of his office, and for acquiring, securing, and protecting
the assets, franchises, and rights of the said company and of the
said receiver, and for securing and protecting the land grant and
land reservation of the said company."
In November, 1869, the present Constitution of Texas was
adopted, and was approved by Congress. The fifth and sixth sections
of this constitution are as follows:
"SECTION 5. All public lands heretofore reserved for the benefit
of railroads or railway companies shall hereafter be subject to
location and survey by any genuine land certificates."
"SECTION 7. All lands granted to railway companies which have
not been alienated by said companies in conformity with the terms
of their charter respectively and the laws of the state under which
the grants were made, are hereby declared
forfeited to the
state for the benefit of the school fund."
The constitutional convention which framed this constitution
passed an ordinance to the effect that all heads of families
actually settled on vacant lands lying within the Memphis & El
Paso railroad reserve shall be entitled to and receive from the
State of Texas 80 acres of land, including
Page 83 U. S. 210
the place occupied, on payment of all expenses of survey and
patent; and that all vacant lands lying within said reserve are
declared open and subject to sale to heads of families actually
settled on or who may actually settle on said reserve, at the price
of one dollar per acre; and that said vacant lands within said
reserve shall be open to preemption settlers, and subject to the
location of all genuine land certificates.
There were in 1869, and were on the 20th of January, 1871, when
Gray was ordered by the court to bring such suits in the name of
the company as he might be advised by counsel were necessary and
proper in the discharge of the duties of his office, a great number
of land certificates outstanding and unlocated in Texas. Since the
passing of the said ordinance, and the adoption of the said
constitution, many hundreds of the holders of certificates other
than those issued to the company had located their certificates on
the sections reserved to the company, had returned their surveys
and locations to the Commissioner of the General Land Office, and
had applied for patents on the same. Before the 19th day of
September, 1870, Commissioner Kuechler and Governor Davis,
professing to act under the said constitutional provisions, issued
2 of such patents. On the 19th of September, 1870, to receiver
filed a protest with the commissioner against issuing any further
patents for lands reserved to the company, but the commissioner and
governor disregarded the protest and issued 32 additional patents
within the reserve; the whole of the land thus patented amounting
to nearly 20,000 acres.
Hereupon on the same 20th of January, 1871, Gray who was a
citizen of New York, filed a bill in the court below against one
Davis, Governor of the State of Texas, and Keuchler, already
mentioned as commissioner of the land office of the state. The bill
-- averring that "the Memphis, El Paso & Pacific Railroad
Company" is "a corporation created by and existing under certain
statutes of Texas," already referred to, and that it had done "all
acts and things necessary to the full and complete vesting,
securing,
Page 83 U. S. 211
and preserving of the franchises, rights, and privileges granted
thereby" -- set forth a history much as above given. It averred
that the company was insolvent, and could not continue the
construction of the road, and that the holders of said bonds would
necessarily be remitted to the security of the mortgages; that the
said security was worthless unless the receiver, under order of
court, should be able to sell the franchises and property of said
company to some party or parties who, by constructing the road,
should acquire the lands referred to in the mortgages, and hold the
same subject to the lien of them. It set forth that the general
laws of Texas authorized to the fullest extent the conveyance of
the franchises of a railway company by sale under execution or
foreclosure; and that by Act of July 27, 1870, the Southern
Transcontinental Railroad Company was created, and, as before
mentioned, was expressly authorized by its charter to "purchase the
rights, franchises, and property of the Memphis, El Paso &
Pacific Railroad Company, heretofore incorporated by the state;"
that the Southern Transcontinental Company stood ready to do this,
and to devote the lands to be acquired by the exercise of said
Memphis & El Paso franchises to the settlement of the land
grant mortgage debt, provided the receiver could convey the
charter, the land grant, and the grant of the land reservation
unimpaired and in full force.
It set forth further that the receiver, on negotiating for a
transfer of the franchises of the company, found that the market
for them was peculiar in the following respects: it was limited, as
the franchises are only of use or value to those who desired and
were able to construct the road; it depended in great measure upon
the reputation of and confidence in the enterprise, and a belief
among capitalists, outside of the State of Texas, that the state
could and would have to abide by the grants contained in the
charter; that it depended peculiarly and essentially upon the
preservation of the land grant and land reservation, inasmuch as
the country through which the road was to be built was sparsely
inhabited, without cities or towns to furnish local traffic;
Page 83 U. S. 212
that Texas lands at a distance from railroads, were of but
nominal value compared with lands along the line of the roads, and
that the Southern Transcontinental Railroad Company, to whom the
receiver chiefly looked as a purchaser, already had the right of
way across the state and parallel with the route of the Memphis
& El Paso charter, following "as near as might be practicable
the old survey of the Memphis & El Paso road," making the mere
right of way of the latter of comparatively little value without
the lands and the reservation.
It asserted that the acts of the governor and commissioner of
the land office, in executing and causing to issue patents for the
reserve, were, and their continuance would be, irretrievable
destruction of that portion of the franchise of the company which
consisted of the right to have the odd sections of the reservation
devoted exclusively to the location and patenting of the company's
certificates, would destroy all confidence in the other grants of
the company, as well as in the grant of the reservation, and render
the franchise of the company valueless in the hands of the
receiver, doing irreparable injury to the interests committed to
his charge.
It set forth further that the Southern Transcontinental Company
asserted and insisted to the receiver, that unless the said acts
were judicially declared unlawful, and perpetually restrained, the
said franchises would be valueless to them, and that they would not
carry out the purchase of the same.
[It was an admitted fact in the case, that the Memphis, El Paso
& Pacific Railroad Company had never sectionized or numbered
the land reservation of the same west of Brazos River, or any
portion of said reservation west of said river, and that no work
had been done on the road of the said company before or since the
year 1861, either by granting or otherwise, except those as already
affirmatively stated and set forth.]
The bill further asserted that the charter of the company was a
contract between the state and the company, which contract was now
in the hands of the complainant as receiver,
Page 83 U. S. 213
and under direction of a court of equity, to be used for the
benefit of the creditors of the company; that the said provisions
of the Constitution of Texas and the said ordinance of convention
impaired the obligation and value of the said contract, and also of
the said contracts of mortgage, and were insofar contrary to
Article I, Section 10, of the Constitution of the United States,
which declares that "no state shall pass any law impairing the
obligation of contracts," and were insofar null and void, and that
the acts of the governor of the state and commissioner of the land
office, in issuing such patents, were without authority of law and
illegal, and that any repetition of the same should be perpetually
restrained. The bill prayed an injunction accordingly.
As a reason for confining the bill to the two defendants named,
and amendment to the bill alleged that the complainant had applied
at the General Land Office of Texas, to have the number and names
of the parties who had located land certificates other than those
issued to the Memphis, El Paso & Pacific Railroad Company, on
lands within and forming a part of the land reservation of the said
company, and to obtain a list of the same; that he had been
informed, on making such application, and by the defendant,
Kuechler, the Commissioner of the General Land Office, that the
number of the same was very great, to-wit, many hundreds, and that
a list could not be furnished without great time and labor. The
amendment further alleged that parties were constantly making
locations and surveys of land certificates as aforesaid on the
lands of said reservation; and that parties who had made such
locations and surveys had __ months allowed them by law, after
making the same, before they were required to make returns thereof
to the Commissioner of the General Land Office, and that the
complainant was consequently unable, and never would be able, to
obtain a correct list of such parties.
To this bill the defendants demurred:
1st. Because it did not appear from it that the defendants, or
either of them, had any direct or personal interest in the
Page 83 U. S. 214
lands which were the subject matters of this suit; but, on the
contrary, that they were sued in their official capacities only,
and that the lands were a part of the public domain of the State of
Texas, which was not and could not be made a party to this
suit.
2d. Because it did not appear that while under the Amendment 11
to the Constitution of the United States [which declares that "the
judicial power of the United States shall not be construed to
extend to any suit in law or equity commenced or prosecuted against
one of the United States by citizens of another state, or by
citizens or subjects of a foreign state"], the court could have no
jurisdiction as between the complainant and the State of Texas,
jurisdiction existed in a suit against two of the officers of said
state in their official capacity alone, to decree portions of the
Constitution of the state, which had been accepted by the Congress
of the United States, and which the defendants were sworn to obey,
void.
3d. Because it did not appear that the bill was founded on
fraud, accident, mistake, trust, specific performance, or any
ground of equity jurisdiction; or that the same set out any equity
against the defendants whatever; on the contrary, it appeared that
the bill was brought to have Sections 5 and 7 of Article Ten of the
Constitution of the State of Texas decreed void.
4th. Because it did not appear that the complainant, being an
officer of the court, had a right to sue the defendants therein,
nor that the court could have jurisdiction as between the
complainant, though a citizen of the State of New York, and the
defendants, as citizens of the State of Texas, in either their
respective official or individual capacities.
5th. Because the "act incorporating the Memphis, El Paso &
Pacific Railroad Company," and the other acts referred to in the
bill, did not amount to a contract between the State of Texas and
the company.
6th. Because it did not appear that any designated third person
or persons was or were about to have a patent granted him or them
by the defendants, and that such third person
Page 83 U. S. 215
or persons was or were sought to be made a party or parties, nor
that said bill was not too vague and indefinite.
7th. Because it did not appear that the creditors not specified
of the company were made parties thereto, nor that the persons not
specified applying for patents on locations of certificates, within
the limits of the lands that were reserved, were made parties
thereto; all of whom, according to the bill, had equities that
ought to be determined in this suit, and hence were necessary and
proper parties to this suit.
8th. Because it did not appear that the complainant had any
equities that he was not bound to have litigated against such third
persons not specified, and also against those not specified who had
located certificates within the limits of the lands that were
reserved, before he would have a right (which was not conceded) to
invoke any action by means of a bill in a court of equity, in case
such a court might have jurisdiction.
The demurrer was overruled, and, no answer being field, a decree
pro confesso was taken for the complainant, and on the
16th of February, 1871, a final decree was granted in accordance
with the prayer of the bill, to the following effect:
"That in July, 1870, and at the time of the appointment of Gray
as receiver, and at the date of the decree, the company was duly
possessed of the franchise and right of, and to the land grant and
land reservation of the company; that the said right and the
franchise of the company were unimpaired, and in full force and
virtue; that the provisions of the Constitution of Texas, and of
said ordinance of convention, so far as they impaired, or purported
to impair the said charter, land grant, or land reservation, were
contrary to the provisions of Article I, Section 10, of the
Constitution of the United States, and were insofar, null and void;
and that the defendants should be perpetually enjoined from
issuing, or causing or permitting to issue, any patent of the lands
of the odd sections of said reservation, except on the certificates
granted to the company, or its assigns."
From this decree appeal was taken by the defendants to this
Court.
Page 83 U. S. 216
MR. JUSTICE SWAYNE delivered the opinion of the Court.
This is an appeal in equity from the decree of the Circuit Court
of the United States for the Western District of Texas. The
appellee was the complainant in the court below. The defendants
demurred to the bill. The demurrer was overruled. The defendants
stood by it. A decree as prayed for was thereupon rendered
pro
confesso for the complainant. The defendants removed the case
to this Court by appeal, and it is now before us, as it was before
the court below, upon the demurrer to the bill. This brings the
whole case as made by the bill under review. The facts averred, so
far as they are material, are to be taken as admitted and true. We
shall refer to them accordingly. The question presented for our
determination is, whether the circuit court erred in overruling the
demurrer. The appellants, having elected not to answer, the decree
for the complainant followed as of course.
At the outset of our examination of the case, we are met by
jurisdictional objections as to the parties -- both complainant and
defendants -- which, before proceeding further, must be disposed
of. We will consider first those which relate to the complainant,
and then, those with respect to the defendants.
The complainant was appointed to his office of receiver, in the
suit in equity of
Forbes v. Memphis, El Paso & Pacific
Railroad Company, a corporation created by the State of Texas.
The suit was in the same court whence this appeal was taken. In
that case, on the 6th of July, 1870, it was, among other things,
ordered and decreed, that the corporation should be enjoined from
disposing of any of its effects, and that John A. C. Gray the
complainant in this suit, should be, and he was thereby
"appointed receiver; to take possession of the moneys and
assets, real and personal; roadbed, road, and all property
whatsoever, of the said Memphis, El Paso & Pacific Railroad
Company,
Page 83 U. S. 217
wheresoever the same may be found, with power under the special
order of the court, from time to time to be made, to manage,
control, and exercise all the franchises, whatsoever, of said
company, and, if need be, under the direction of the court, to
sell, transfer, and convey the road, roadbed, and other property of
said company, as an entire thing,"
&c.
On the 20th of January, 1871, it was further ordered by the
court
"That the said John A. C. Gray receiver as aforesaid, be, and he
is hereby, authorized and empowered to defend and continue all
suits brought by or against the said Memphis, El Paso & Pacific
Railroad Company, whether before or after the appointment of said
receiver, and whether in the name of said company or otherwise;
defend all suits brought against him as such receiver or affecting
his receivership, and to bring such suits in the name of said
company, or in the name of said receiver, as he may be advised by
counsel to be necessary and proper in the discharge of the duties
of his office, and for acquiring, securing, and protecting the
assets, franchises, and rights of the said company and of the said
receiver, and for securing and protecting the land grant and land
reservation of the said company."
It is to be presumed the receiver filed this bill, as it is
framed in accordance with the advice of counsel. [
Footnote 1]
The authority given by the decree is ample. Still he decree is
ample. Still the competent for him to proceed in his own name
instead of the name of the company whose rights he seeks by this
bill to assert. A receiver is appointed upon a principle of justice
for the benefit of all concerned. Every kind of property of such a
nature that, if legal, it might be taken in execution, may, if
equitable, be put into his possession. Hence the appointment has
been said to be an equitable execution. He is virtually a
representative of the court, and of all the parties in interest in
the litigation wherein he is appointed. [
Footnote 2] He is required to
Page 83 U. S. 218
take possession of property as directed, because it is deemed
more for the interests of justice that he should do so than that
the property should be in the possession of either of the parties
in the litigation. [
Footnote 3]
He is not appointed for the benefit of either of the parties, but
of all concerned. Money or property in his hands is
in custodia
legis. [
Footnote 4] He has
only such power and authority as are given him by the court, and
must not exceed the prescribed limits. [
Footnote 5] The court will not allow him to be sued
touching the property in his charge, nor for any malfeasance as to
the parties, or others, without its consent; nor will it permit his
possession to be disturbed by force, nor violence to be offered to
his person while in the discharge of his official duties. In such
cases, the court will vindicate its authority, and, if need be,
will punish the offender by fine and imprisonment for contempt.
[
Footnote 6] The same rules are
applied to the possession of a sequestrator. [
Footnote 7] Where property in the hands of the
receiver is claimed by another, the right may be tried by proper
issues at law, by a reference to a master, or otherwise, as the
court in its discretion may see fit to direct. [
Footnote 8] Where property, in the possession of a
third person, is claimed by the receiver, the complainant must make
such person a party by amending the bill, or the receiver must
proceed against him by suit in the ordinary way. [
Footnote 9] After tenants have attorned to
the receiver, he may distrain for rent in arrear in his own name.
[
Footnote 10] In a suit
between partners, he may be required to carry on the business,
Page 83 U. S. 219
in order to preserve the goodwill of the establishment until a
sale can be effected. [
Footnote
11]
Here, the property in question is not in the possession of the
defendants. The possession of the receiver has not been invaded. He
has not been in possession, is not seeking possession, and there is
no question in the case relating to that subject. But the order of
the court expressly requires the receiver to secure and protect
"the assets, franchises, and rights," and "the land grant and
reservation of said company." He is seeking to perform that duty by
enjoining the appellants from doing illegal acts, which the bill
alleges, if done, would render the rights and title of the company
to the immense property last mentioned, of greatly diminished
value, if not wholly worthless.
We think it is competent for him to perform this function in the
mode he has adopted. The decree, in the case wherein he was
appointed, expressly authorizes him to sue for that purpose in his
own name. The order was made by a court of adequate authority in
the regular exercise of its jurisdiction. No appeal has been taken,
and the order stands unreversed.
This bill is auxiliary to the original suit. [
Footnote 12] It is analogous to a petition
by a receiver to the court to protect his possession from
disturbance, or the property in his charge from threatened injury
or destruction. No title in the receiver is necessary to warrant
such an application, or the administration by the court of the
proper remedy. There can be no valid objection to the receiver
here, in analogy to that proceeding, maintaining this suit. In the
progress and growth of equity jurisdiction it has become usual to
clothe such officers with much larger powers than were formerly
conferred. In some of the states, they are by statutes charged with
the duty of settling the affairs of certain corporations when
insolvent, and are authorized expressly to sue in their own names.
It is not unusual for courts of equity to put them in charge of the
railroads of companies which have fallen
Page 83 U. S. 220
into financial embarrassment, and to require them to operate
such roads, until the difficulties are removed, or such
arrangements are made that the roads can be sold with the least
sacrifice of the interests of those concerned. In all such cases
the receiver is the right arm of the jurisdiction invoked. As
regards the statutes, we see no reason why a court of equity, in
the exercise of its undoubted authority, may not accomplish all the
best results intended to be secured by such legislation, without
its aid.
A few remarks will be sufficient to dispose of the
jurisdictional objections as to the appellants.
In
Osborn v. Bank of the United States, [
Footnote 13] three things, among others,
were decided:
(1) A circuit court of the United States, in a proper case in
equity, may enjoin a state officer from executing a state law in
conflict with the Constitution or a statute of the United States,
when such execution will violate the rights of the complainant.
(2) Where the state is concerned, the state should be made a
party, if it could be done. That it cannot be done is a sufficient
reason for the omission to do it, and the court may proceed to
decree against the officers of the state in all respects as if the
state were a party to the record.
(3) In deciding who are parties to the suit the court will not
look beyond the record. Making a state officer a party does not
make the state a party, although her law may have prompted his
action, and the state may stand behind him as the real party in
interest. A state can be made a party only by shaping the bill
expressly with that view, as where individuals or corporations are
intended to be put in that relation to the case.
Dodge v. Woolsey, [
Footnote 14]
State Bank of Ohio v. Knoop,
[
Footnote 15]
Jefferson
Branch Bank v. Skelly, [
Footnote 16]
Ohio Life and Trust Co. v. Debolt,
[
Footnote 17] and
Mechanics' & Traders' Bank v. Debolt, [
Footnote 18] proceeded upon the same
principles, and were controlled
Page 83 U. S. 221
by that authority, with respect to the jurisdictional question
arising in each of those cases as to the defendant.
In
Woodruff v. Trapnall, [
Footnote 19] a writ of mandamus was issued to the proper
representative of the State of Arkansas to compel him to receive
the paper of the Bank of the State of Arkansas in payment of a
judgment which the state had recovered against the relator. The
bank was wholly owned by the state, and the claim was made under a
clause in the charter which had been repealed. Judgment was given
against the respondent. The question of jurisdiction does not
appear to have been raised. In
Curran v. State of Arkansas,
Bank of the State of Arkansas, and others, [
Footnote 20] it appeared that the bank had
become insolvent. A creditor's bill was filed to reach its assets.
The objection was taken that the state could not be sued. This
Court answered that the objection involved a question of local law,
and that as the state permitted herself to be sued in her own
tribunals, that was conclusive upon the subject. According to the
jurisprudence of Texas, suits like this can be maintained against
the public officers who appropriately represent her touching the
interests involved in the controversy. [
Footnote 21] In the application of this principle
there is no difference between the governor of a state and officers
of a state of lower grades. In this respect they are upon a footing
of equality. [
Footnote
22]
A party, by going into a national court does not lose any right
or appropriate remedy of which he might have availed himself in the
state courts of the same locality. The wise policy of the
Constitution gives him a choice of tribunals. In the former, he may
hope to escape the local influences which sometimes disturb the
even flow of justice. And in the regular course of procedure, if
the amount involved be large enough, he may have access to this
tribunal as the
Page 83 U. S. 222
final arbiter of his rights. [
Footnote 23] Upon the grounds of the jurisprudence of
both the United States and of Texas we hold this bill well brought
as regards the defendants.
It is insisted that the corporation, on behalf of which this
suit was instituted, has ceased to exist.
The bill avers that "The Memphis, El Paso & Pacific Railroad
Company" is "a corporation created by and existing under certain
statutes of the State of Texas hereinafter set forth," and that
within the times limited by the charter and extended by other acts
the company "did all acts and things necessary to the full and
complete vesting, securing, and preserving of the franchises,
rights, and privileges granted thereby." The demurrer admits the
truth of these averments unless they are inconsistent with the
statutes which bear upon the subject. The corporation was created
by an act of the Legislature of Texas, approved February 4, 1856.
By the first section, certain parties are named and created a body
politic and corporate, and the general powers inherent in all such
bodies are formally given. The second gives the right to construct
a railway, commencing on the eastern boundary of the state, between
Sulphur Fork and Red River, at the western terminus of the
Mississippi, Ouachita, and Red River Railroad, or of the Cairo and
Fulton Railroad, and running thence westerly to the Rio Grande,
opposite to or near the town of El Paso. The twentieth section
declares that no rights shall vest under the charter until a
certain amount of stock therein named shall have been subscribed,
and the percentage prescribed shall have been paid upon it. This
requirement is covered by the averment in the bill that the company
had done everything necessary to secure the vesting of all the
franchises given to it. We do not understand that there is any
controversy on this subject. All the other conditions prescribed,
involving the existence of the corporation, are clearly subsequent.
They are found in the fourteenth section of the charter, in the
first section of the Act of February
Page 83 U. S. 223
5, 1856, and in the third section of the Act of February 10,
1858. To any argument drawn from these provisions there are two
conclusive answers:
(1) There has been no judgment of ouster and dissolution.
Without this they are inoperative. To make them effectual they must
be grasped and wielded by the proper judicial action. [
Footnote 24]
(2) The offenses and punishment denounced have been condoned and
waived by the subsequent action of the legislature. The Act of
March 20, 1861; the act for the relief of railroad companies,
approved January 11, 1862; the act for the relief of companies
incorporated for purposes of internal improvement, approved
February 18, 1862; and the third section of the "Act to incorporate
the Transcontinental Railroad Company," of the 27th July, 1870,
each and all have that effect. The section last mentioned
authorizes the company therein named to "purchase the rights,
franchises, and property of the Memphis, El Paso & Pacific
Railroad Company, heretofore incorporated by this state." This is a
clear affirmation, by implication, of the existence of the
corporation, and of the possession of the rights, franchises, and
property conferred by its charter. What is implied is as effectual
as what is expressed. [
Footnote
25] These considerations are so clearly conclusive, that it is
needless to advert more particularly in this connection to the
legislation in question, or to pursue the subject further. There is
no warrant for the proposition that the corporation had ceased to
exist.
The heart of this litigation lies in the immense land grant
which is in controversy between the parties. The objections we have
considered are only outworks thrown up to prevent the conflict from
reaching that point. It is insisted that the rights of the company
touching the entire reservation have become forfeited.
Page 83 U. S. 224
The fifteenth section of the charter provides as follows:
"All the vacant lands within eight miles on each side of the
extension line of said road shall be exempt from location or entry
from and after the time when such line shall be designated by
survey, recognition, or otherwise. The lands hereby reserved shall
be surveyed by said company at their expense, and the alternate or
even sections reserved for the use of the state. And it shall be
the duty of said company to furnish the district surveyor of each
district through which said roadway runs with a map of the track of
said road, together with such field notes as may be necessary to
the proper understanding and designation of the same."
There are other provisions prescribing various details not
necessary to be particularly stated or considered.
A proviso in the seventeenth section declares that no title
shall be permanently vested in the company or their assigns for
land granted for the grading as contemplated by the act until
twenty-five miles of the road shall have been completed and put in
running order. The proviso in the twentieth section of the charter
that no rights shall vest under it until the condition therein
prescribed is complied with has already been considered. Conditions
of forfeiture of the lands granted are prescribed in this and
subsequent acts. They are found in the fourteenth section of this
act, in the first and fourth sections of the supplemental act of
the same date, and in the third and fourth sections of the Act of
February 10, 1858. These conditions will be considered
hereafter.
The act for the relief of internal improvement companies of
February 18, 1862, declared that the time of the continuance of the
war between the Confederate States and the United States should not
be computed against any internal improvement company in reckoning
the period allowed them for the completion of any work they had
contracted to do.
The Act of January 11, 1862, for the relief of railroad
companies enacted that the failure of any chartered railroad
company of the state to complete any part of its road as required
by existing laws should not operate as a forfeiture of its charter
or of the lands to which the company would
Page 83 U. S. 225
be entitled, under the provisions of the act entitled "An act to
encourage the construction of railroads in Texas by donations of
land," approved January 30, 1854, and the several acts
supplementary thereto, provided the company should complete such
portion of its road was would entitle it to donations of land under
existing laws within two years from the close of the war.
The act for the benefit of railroad companies of November 13,
1866, declared that the grant of sixteen sections of land to the
mile to railroad companies theretofore, or there after,
constructing railroads in Texas, should be extended under the same
restrictions and limitations theretofore provided by law, for ten
years after the passage of the act. These several acts are valid.
[
Footnote 26]
By an act approved July 27, 1870, the Southern Transcontinental
Railroad Company was incorporated.
It was declared that the object of the company thus created was
to construct and establish a railway line and telegraphic
communication from the eastern boundary of the State of Texas, "and
thence as near as practicable to the route of the Memphis, El Paso
& Pacific Railroad Company, to, or near, the town of El Paso."
It was enacted that "the main line of said road shall follow, as
near as may be practicable, the old survey of the Memphis & El
Paso road." It was further enacted that
"the said company, hereby incorporated, may purchase the rights,
franchises, and property of the Memphis, El Paso & Pacific
Railroad Company, heretofore incorporated by this state,"
as before mentioned.
The first section of the ordinance of 1869 declared that all
heads of families settled on vacant lands lying within the Memphis
& El Paso railroad reserve, should be entitled to receive from
the State of Texas eighty acres of land, including the place
occupied, upon payment of the expenses of survey and patent.
By the second section, it was declared that all the vacant
Page 83 U. S. 226
land within the reserve was open to sale to settlers and
preemption settlers, and subject to the location of land
certificates. The third section declared that the company had
forfeited its right to the land, and that certain certificates
having been issued to the company and patents issued thereon, it
was made the duty of the Attorney General to institute legal
proceedings to have such certificates and patents cancelled.
In November, 1869, the present Constitution of Texas was
adopted. It was subsequently approved by Congress.
Sections five and seven of this constitution are as follows:
"SECTION 5. All public lands heretofore reserved for the benefit
of railroads or railway companies shall hereafter be subject to
location and survey by any genuine land certificates."
"SECTION 7. All lands granted to railway companies which have
not been alienated by said companies in conformity with the terms
of their charter respectively, and the laws of the state under
which the grants were made, are hereby declared forfeited to the
state for the benefit of the school fund."
This summary gives a view of the statutory and constitutional
provisions necessary to be considered in disposing of the question
before us.
On the 20th of June, 1857, the company filed in the land office
at Austin surveys showing the line of the road from the eastern
boundary of the state to El Paso, which line was officially
recognized by the Commissioner of the General Land Office of Texas.
By the 1st of March, 1860, the company had surveyed, sectionized,
and numbered all the sections and fractional sections of the vacant
lands within the reservation, from the eastern boundary of the
state to the crossing of the Brazos, of which due returns were made
to the commissioner, and by him accepted. By the 10th of May, 1859,
the company had marked and designated the central line of the road
from the Brazos to the Colorado, and made proper returns to the
office of the commissioner, by whom they were accepted. The lands
granted to the company thereby became defined and officially
recognized as such along the whole extent of their line.
Page 83 U. S. 227
In doing this work, the company surveyed, numbered, and mapped
each alternate or even section of public lands for two hundred and
fifty miles in length, and sixteen miles in width, in behalf of the
State of Texas. It was of great benefit to her, and is reported to
the receiver to have cost the company more than $100,000.
By consent of parties the bill was amended
nunc pro
tunc in three particulars. The complainant admitted that no
land within the reserve had been surveyed, sectionized, or numbered
west of the Brazos River, and that no work had been done on the
road before or since 1861, except as averred in the bill. He
averred that he applied to the General Land Office for the number
and names of those who had located certificates other than such as
were issued to the company upon lands within the reservation, and
that Keuchler, the defendant, answered that the number was very
great, amounting to hundreds, and that a list could not be
furnished without great time and labor. He averred further that
parties were constantly locating certificates and making surveys
within the reservation, and that they were allowed a specified time
to make their returns, so that it was impossible for him to obtain
a full list of such parties.
The company commenced work within one year from the 1st of
March, 1856, and before the 1st of March, 1861, had completely
graded more than fifty miles of its roadway, beginning at the
eastern boundary line of the state and extending west in the
direction of El Paso. [
Footnote
27]
We do not understand that up to that time, there was a breach of
any condition touching the existence of the corporation or its
right to the lands within the reservation. Before that time, the
tracts east of the Brazos covered by the grant were definitely
fixed by the surveys which the company had made. The title of the
company to those west of the Brazos, though the sections were not
designated, was equally valid. The good will of a lease which the
landlord is in the habit of renewing is property, and rights
Page 83 U. S. 228
growing out of it, whether by contract or otherwise, will be
protected and enforced by a court of equity. [
Footnote 28]
The rights of the company west of the Brazos were of a much more
substantial character than those which were the subjects of
judicial action in the cases cited.
The real estate of a corporation is a distinct thing from its
franchises. But the right to acquire and sell real estate is a
franchise, and the right to acquire the particular real estate
designated in the charter of this company, and here in question, is
within that category. It might, therefore, well be doubted whether
this right could be taken from the company without an appropriate
proceeding instituted for that purpose, and prosecuted to judgment
by the state. But the view which we take of the case renders it
unnecessary to pursue the subject.
We will recur to the conditions of forfeiture touching the land
grant, and consider them irrespective of that point. The provisions
to that effect, in the fourteenth section of the charter, are
expressly superseded by those in the first section of the
supplemental Act of February 5, 1856. The fourth section of that
act prescribes a further condition. These provisions again are
superseded by the third and fourth sections of the Amendatory Act
of February 10, 1858. The conditions prescribed by the last-named
act are:
(1) To survey the reserve as far as the Brazos River, within
four years from the 1st of March, 1856.
(2) To run and designate the center line of the reservation from
the Brazos to the Colorado, within fifteen months from the 10th of
February, 1858.
(3) To survey the whole reserve within ten years from February
10, 1858.
(4) To have a connection with some road leading to the
Mississippi or Gulf of Mexico within ten years from February 10,
1858.
(5) That the company shall have finished and in running
Page 83 U. S. 229
order at least twenty-five miles of their road within one year
after it is connected with certain other roads mentioned in the
act, and at least fifty miles every two years thereafter until the
road is completed.
(6) That the right to acquire lands from the state by donation
shall cease at the expiration of fifteen years from February 10,
1858.
The two first conditions were performed within the time
prescribed. These points are covered by the averments of the bill.
The time limited for the performance of the third and fourth is
extended from February 10, 1868, to June 10, 1873, by adding the
time of the continuance of the war, according to the Act of
February 18, 1862, before referred to. When the bill was filed,
there were no such roads as those mentioned in the fifth condition
with which a connection could be formed. The fifteen years limited
by the sixth condition expired February 10, 1873. The period that
elapsed during the war is to be added. That extends the time so
much further.
The title of the company is therefore unaffected by the breach
of any condition annexed to the grant.
But suppose there had been such breaches, as is insisted by the
counsel for the appellants, the result must still be the same.
Except as to a small portion of the land in question the legal
title is yet in the state. Whatever may be the right of the company
it is wholly equitable in its character. With a few exceptions,
which have no applicability in this case, the same rules apply in
equity to equitable estates as are applied at law to legal estates.
They are alike descendible, devisable, alienable, and barrable.
[
Footnote 29]
There is wide distinction between a condition precedent, where
no title has vested and none is to vest until the condition is
performed, and a condition subsequent, operating by way of
defeasance. In the former case, equity can give
Page 83 U. S. 230
no relief. The failure to perform is an inevitable bar. No right
can ever vest. The result is very different where the condition is
subsequent. There, equity will interpose and relieve against the
forfeiture upon the principle of compensation, where that principle
can be applied, giving damages, if damages should be given, and the
proper amount can be ascertained. [
Footnote 30] By the common law a freehold estate could
not be created without livery of seizin, and it could not be
determined without some act
in pais of equal notoriety.
Conditions subsequent are not favored in the law, [
Footnote 31] and when they are sought to be
enforced in an action, at law, there must have been a reentry, or
something equivalent to it, or the suit must fail. The right to sue
at law for the breach is not alienable. The action must be brought
by the grantor or someone in privity of blood with him. [
Footnote 32] In
Dumpor's
Case, [
Footnote 33] it
was decided that a condition not to alien without license is
finally determined by the first license given.
Here the controlling consideration is that the performance of
all the conditions not performed was prevented by the state
herself. By plunging into the war and prosecuting it, she
confessedly rendered it impossible for the company to fulfill
during its continuance. This is alleged in the bill, and admitted
by the demurrer.
The rule at law is that if a condition subsequent be possible at
the time of making it, and becomes afterwards impossible to be
complied with, by the Act of God, or the law, or the grantor, the
estate having once vested, is not thereby divested, but becomes
absolute. [
Footnote 34] The
analogy of that rule applied here would blot out these conditions.
But this would be harsh and work injustice. Equity will therefore
not apply
Page 83 U. S. 231
the principle to that extent. It will regard the conditions as
if no particular time for performance were specified. In such cases
the rule is that the performance must be within a reasonable time.
[
Footnote 35] We are clear
in our conviction that, under the circumstances, a reasonable time
for performance had not elapsed when this bill was filed. As the
state, by the Act of July 27, 1870, created the Southern
Transcontinental Railroad Company and authorized that company to
"purchase the rights, franchises, and property of the Memphis, El
Paso & Pacific Railroad Company," it will be but right to allow
a reasonable time for that purchase to be made, if such an
arrangement can be effected, and for the vendee thereafter to
perform all that was incumbent upon the Memphis, El Paso &
Pacific Railroad Company by its charter and the supplementary and
amendatory acts. If that arrangement cannot be made, the latter
company will have the right to provide otherwise for the
fulfillment of its obligations to the state within such time, and
thus consummate its inchoate title to the lands within the
reservation. Either will be in accordance with the principles of
reason and justice, and within the spirit of well considered
adjudications. [
Footnote
36]
Both parties will thus be put in the same situation, as near as
may be, as if the breaches had not occurred. Neither will be
subjected to any serious hardship. The state, by her own acts, has
lost the benefits of an earlier completion of the work. The company
has lost the income which it might have enjoyed, and has doubtless
been thrown into embarrassments it would have escaped. The
circumstances do not all for a severe application of the rules of
law upon either side.
Page 83 U. S. 232
Breaches of such conditions may be waived by the grantor
expressly or
in pais. [
Footnote 37] Such waiver is expressed in the statutes
relating to the subject, to which we have referred, except the act
creating the Transcontinental Company, and there it exists by the
clearest implication.
That the Act of incorporation and the land grant here in
question were contracts is too well settled in this Court to
require discussion. [
Footnote
38] As such, they were within the protection of that clause of
the Constitution of the United States which declares that no state
shall pass any law impairing the obligation of contracts. The
ordinance of 1869, and the constitution adopted in that year,
insofar as they concern the question under consider consideration,
are nullities, and may be laid out of view. [
Footnote 39] When a state becomes a party to a
contract, as in the case before us, the same rules of law are
applied to her as to private persons under like circumstances. When
she or her representatives are properly brought into the forum of
litigation, neither she nor they can assert any right or immunity
as incident to her political sovereignty. [
Footnote 40]
A case more imperatively demanding the exercise of jurisdiction
in equity could hardly by imagined than that presented in this
bill. Should the interposition invoked be refused, doubtless the
reservation would speedily be thatched over with adverse claims. A
cloud would not only be thrown upon the title of the company, but
the time, litigation, labor, and expense involved in the
vindication of its rights, would very greatly lessen the value of
the grant and materially delay the progress of the work it was
intended to aid. The injury would be irreparable. It is the
peculiar function of a court of equity in a case like this to avert
such results.
It has been insisted that those holding adverse claims should
have been brought into the case as parties. They
Page 83 U. S. 233
are too numerous for that to be done. An application was made to
one of the defendants for a list of their names, and it was not
given. The important questions which have arisen between the
appellants and the company can all be properly determined without
the presence of other parties than those before us.
The parties referred to are sufficiently represented for the
purposes of this litigation by the Governor and the Commissioner of
the General Land Office. We feel no difficulty in disposing of the
case as it is presented in the record.
There are other points, ably maintained by the learned counsel
for the appellants, to which we have not adverted. They are
sufficiently answered by what has been said. It would extend this
opinion unnecessarily, and could serve no useful purpose,
specifically to consider them.
The circuit court decided correctly. The decree appealed from
is
Affirmed.
MR. JUSTICE HUNT did not hear the argument in this case and did
not participate in its decision.
[
Footnote 1]
Bank of the United States v.
Dandridge, 12 Wheat. 70.
[
Footnote 2]
Jeremy's Equity 249;
Davis v. Duke of Marlborough, 2
Swanston 125;
Shakel v. Duke of Marlborough, 4 Maddock
463.
[
Footnote 3]
Wyatt's Practical Register 355.
[
Footnote 4]
In re Colvin, 3 Maryland Chancery Decisions 278;
Delany v. Mansfield, 1 Hogan 234.
[
Footnote 5]
The Chautauque County Bank v. White, 6 Barb. 589;
Verplanck v. Mercantile Ins. Co. of New York, 2 Paige
452.
[
Footnote 6]
De Groot v. Jay, 30 Barb. 483;
Angel v. Smith,
9 Vesey 335;
Russell v. E. A. R. Co., 3 Mac. & Gor.
104;
Parker v. Browing, 8 Paige 388;
Noe v.
Gibson, 7 Paige 513; 2 Story's Equity § 833, A. & B.
[
Footnote 7]
2 Daniels's Chancery Practice 1433.
[
Footnote 8]
Empringham v. Short, 3 Hare 470.
[
Footnote 9]
8 Paige 388;
Noe v. Gibson, 7
id. 513; 2
Story's Equity,
supra; 2 J. & W. 176; 2 Daniels's
Chancery Practice 1433.
[
Footnote 10]
2 Daniels's Chancery Practice 1437.
[
Footnote 11]
Marten v. Van Schaick, 4 Paige 479.
[
Footnote 12]
Freeman v.
Howe, 24 How. 451;
Jones v.
Andrews, 10 Wall. 327.
[
Footnote 13]
22 U. S. 9 Wheat.
738.
[
Footnote 14]
59 U. S. 18 How.
331.
[
Footnote 15]
57 U. S. 16
id. 369.
[
Footnote 16]
66 U. S. 1 Black
436.
[
Footnote 17]
57 U. S. 16
How. 432.
[
Footnote 18]
59 U. S. 18
id. 380.
[
Footnote 19]
51 U. S. 10 How.
190.
[
Footnote 20]
56 U. S. 15 How.
304.
[
Footnote 21]
Ward v. Townsend, 2 Tex. 581;
Cohen v. Smith,
3
id. 51;
Commissioner General Land Office v.
Smith, 5
id. 471;
McLelland v. Shaw, 15
id. 319;
Stewart v. Crosby, ib., 547.
[
Footnote 22]
Whitman v. Governor, 5 Ohio St. 528;
Houston &
Great Northern Railroad Co. v. Kuechler, Commissioner, Supreme
Court of Texas -- not yet reported.
[
Footnote 23]
Ex Parte
McNiel, 13 Wall. 236.
[
Footnote 24]
See Angell & Ames on Corporations § 777, and the
authorities there cited.
[
Footnote 25]
United States v.
Babbit, 1 Black 57.
[
Footnote 26]
See the 33d section of the Constitution of Texas of
1869, and
Texas v.
White, 7 Wall. 700.
[
Footnote 27]
See section 3 of the Act of February 10, 1858.
[
Footnote 28]
Phyfe v. Wardell & Woolley, 5 Paige 268;
see
also Amour v. Alexander, 10
id. 571.
[
Footnote 29]
Jickling on the Analogy of Estates &c. 17;
Croxall v.
Shererd, 5 Wall. 281.
[
Footnote 30]
Wells v. Smith, 2 Edwards's Ch. 78;
see also,
as to the principle of compensation,
Beaty v. Harkey, 2
Smedes & Marshall 563.
[
Footnote 31]
4th Kent 129.
[
Footnote 32]
Nicoll v. New York & Erie Railroad Co., 2 Kernan
121;
Ludlow v. New York & Harlem Railroad Co., 12
Barb. 440;
Wester v.
Cooper, 14 How. 488.
[
Footnote 33]
4 Reports p. 119.
[
Footnote 34]
Coke Littleton 206
a, 208
b; 2 Blackstone's
Commentaries 156, 4 Kent *130.
[
Footnote 35]
Hayden v. Stoughton, 5 Pickering 528; 4 Kent *125, 126;
Comyns's Digest, Title, "Condition G, 5."
[
Footnote 36]
Walker v. Wheeler, 2 Conn. 299;
Beaty v.
Harkey, 2 Smedes & Marshall 563;
Moss v.
Matthews, 3 Vesey Jr. 279; 2 Vernon 366; 1
id. 83; 3
Brown's Chancery 256;
Taylor v. Popham, 1
id.
168; 1 Bacon Abridgment 642; 1 Maddock's Chancery Practice 41-42;
City Bank v. Smith, 3 Gill & Johnson 265.
[
Footnote 37]
Dumpor's Case, 1st Smith's Leading Cases 85, American
note.
[
Footnote 38]
Fletcher v.
Peck, 6 Cranch 137;
New
Jersey v. Wilson, 7 Cranch 166;
Dartmouth
College v. Woodward, 4 Wheat. 518;
State Bank
v. Knoop, 16 How. 369.
[
Footnote 39]
Von Hoffman v. City of
Quincy, 4 Wall. 535.
[
Footnote 40]
Curran v. State of
Arkansas, 15 How. 308.
MR. JUSTICE DAVIS, with whom concurred THE CHIEF JUSTICE,
dissenting, said:
I am constrained to enter my dissent to the opinion and judgment
of the Court in this case for the reason that this suit, although
in form otherwise, is in effect against the State of Texas. The
object which it seeks to obtain shows this to be so, which is to
deprive the state of the power to dispose, in its own way, of its
public lands, and this object, by the decision just rendered, is
accomplished. In my judgment, the bill should have been dismissed,
because the state is exempt from suit at the instance of private
persons, and on the face of the bill it is apparent that the state
is arraigned as a defendant.
