Opinion of the Court.

In making this contract the president acted under authority of an act of the Congress of Texas of February 5th, 1842, which declared,

"That the provisions of an act entitled 'An Act for the granting of lands to emigrants,' approved January 4th, 1841, so far as relates to the authority thereby given to the president to enter into a contract with W. S. Peters and others to introduce colonists, upon certain terms therein expressed and set forth, be, and the same are hereby, extended to such other company or companies which may be organized for like purposes, as the president in his judgment may approve.

"2. That all the rights accruing to said company by the provisions of said act, and all the duties, obligations, and conditions imposed by the same upon the said W. S. Peters and his associates, be and the same are hereby extended to such other companies as may be organized under the provisions of this act."

To the act of 1841, therefore, we are to look for the kind of contract which the president of Texas could make in 1844 with Mercer and his associates, for though a joint resolution of the Congress, dated January 16th, 1843, is relied on as introducing some modification of the act of 1841, that resolution seems carefully limited in its operation to contracts already in existence, and does not affect the power of the president in any contract he may make with other parties.

It is true this joint resolution authorizes an extension of the period within which the contracts, to which it specifically refers by name, may be performed, from three years to five years, and the contract in Mercer's case allowed five years, when the act of 1841 required performance within three years; but no point is raised that the Mercer contract is, for that reason, void, and we are not called on to declare the effect of this departure from the act of 1841 in this case.

This agreement is in conformity with the act of 1841 authorizing the contract with W. S. Peters and his associates, and as a substantial summary of the material parts of the Mercer contract, except the location of the land and the names of the parties, that statute is given here.

Opinion of the Court.

The first three sections of the act relate to the rights conferred on all immigrants to the State.

Sec. 4 enacts that the president of the republic be and he is hereby authorized to make a contract with W. S. Peters, Daniel S. Carroll, and others (naming them), collectively, for the purpose of colonizing and settling a portion of the vacant and unappropriated lands of the republic, on the following conditions, to wit:

"The said contractors on their part agree to introduce a number of families, to be specified in the contract, within three years. from the date of the contract: Provided, They shall commence the settlement within one year from the date of said contract."

It then proceeds:

"ART. 2009. [5] Be it further enacted, That the said contract shall be drawn up by the secretary of State, setting forth such regulations and stipulations as shall not be contrary to the general principles of this law and the Constitution; which contract shall be signed by the president and the party or parties, and attested by the secretary of State, who will also preserve a copy in his department.

"ART. 2010. [6] Be it further enacted, That the president shall designate certain boundaries, to be above the limits of the present settlements, within which the emigrants under the said contract must reside: Provided, however, That all legal grants and surveys that may have been located within the boundaries so designated previously to the date of said contract, shall be respected; and any locations or surveys made by the contractors or their emigrants on such grants and surveys, shall be null and void.

"ART. 2011. [7] Be it further enacted, That not more than one section of six hundred and forty acres of land, to be located in a square, shall be given to any family comprehended in said contract; nor more than three hundred and twenty acres to a single man over the age of seventeen years.

"ART. 2012. [8] Be it further enacted, That no individual contract made between any contractor and the families or single persons which he may introduce, for a portion of the land to which

Opinion of the Court.

respectively they may be entitled, by way of recompense for passage, expense of transportation, removal or otherwise, shall be binding, if such contract embrace more than one-half of the land which he, she, or they may be entitled to under this law; nor shall any contract act as a lien on any larger portion of such land; nor shall any emigrant be entitled to any land, or receive a title for such land, until such person or persons shall have built a good and comfortable cabin upon it, and shall keep in cultivation, and under good fence, at least fifteen acres on the tract which he may have received.

"ART. 2013. [9] Be it further enacted, That all the expenses. attending the selection of the land, surveying, title, and other fees, shall be paid by the contractor to the persons respectively authorized to receive them: Provided, however, That this provision shall not release the colonist from the obligation of remunerating the contractor in the amount of all such fees, so soon as it can be done without a sale of their land: And further, The president may donate to every settlement of one hundred families, made under the provisions of this act, one section of six hundred and forty acres of land, to aid and assist the settlement in the erection of a building for religious public worship.

"ART. 2014. [10] Be it further enacted, That the president may allow the contractors a compensation for their services, and in recompense of their labor and expense attendant on the introduction and settlement of the families introduced by them, ten sections for every hundred families; and in the same ratio of half sections for every hundred single men introduced and settled; it being understood that no fractional number less than one hundred will be allowed any premium.

“Art. 2015. [11] Be it further enacted, That the premium lands must be selected from the vacant lands within the territorial limits defined in the contract; And further, All fees incidental to the issue of patents for lands acquired under the provisions of this law shall be paid to the commissioner of the general land office, for the use and benefit of the public treasury.

"ART. 2016. [12] Be it further enacted, That a failure on the part of the contractors, and a forfeiture of their contract, shall not be prejudicial to the rights of such families and single persons as they may introduce; who shall be entitled to their respective quotas of land, agreeable to the provisions of this law.

Opinion of the Court.

"ART. 2017. [13] Be it further enacted, That the contractors shall be required to have one-third of the whole number of the families and single persons for which they contract within the limits of the republic before the expiration of one year from the date of the contract, under the penalty of a forfeiture of the same; and it shall be the duty of the secretary of state forthwith, after the expiration of such term, and failure on the part of the contractors to comply with this provision, to publish and declare said forfeiture; unless the president, for good and sufficient reasons, shall extend the term six months, which he can do; and all substitutions of families living within the limits of the republic, by the contractors, shall not entitle them to any premium for such families, nor shall it operate in favor of them, for the number of families which they are bound to introduce. And this act shall take effect from and after its passage."

The contract with Mercer designated a large tract of land, about six thousand square miles in extent, the outer boundaries of which were described so as to be capable of identification by survey, within which he was to settle at least one hundred families within each period of a year for the five years succeeding the date of his contract, and the right to introduce new emigrants terminated at the end of that time.

What he was to do under this contract, and what he was to receive for it when done, as found in the instrument executed by him and the president, differ but little from the requirements of the foregoing statute. Where there may be found any difference material to the view we take of this controversy it will be pointed out in the course of the opinion.

The complaint, after setting forth this agreement, alleges that Mercer performed the obligations imposed on him, introducing and settling within the prescribed limits and within the five years allowed him twelve hundred and fifty-six (1256) families, and that in all other respects he fulfilled the obligation of his contract. It charges that for all this he has received no lands at the hands of the State, as he is entitled to, nor any evidence or certificate of his right to them, and that the State of Texas and the officers in charge of the land department deny all right of said Mercer or Hancock, his assignee, or Preston,

Opinion of the Court.

Hancock's devisee, or any of their associates, to receive such lands or such certificates, or any compensation for the services rendered under Mercer's contract in colonizing the families so introduced.

And it is specifically charged against the defendant that, as commissioner of the general land office having charge of such matters, he not only utterly refuses to recognize their rights and refuses to issue to them patents or certificates for the number of sections and half sections to which they are entitled, but that he is constantly issuing to others land certificates and patents, whereby the land within the reservation in which their claims must be satisfied is rapidly passing into the hands of private owners with title from the State.

The prayer of the. bill is that defendant Walsh, by a mandatory injunction, be required "to refrain and desist from longer withholding from your orator the certificates for location of land to which your orator is entitled under the contract between Charles Fenton Mercer and the Republic of Texas, of date of January 29th, 1844, and from further refusing to execute and deliver to your orator the certificates for land to which on final hearing it may be decreed that your orator is entitled;" and if it be found there is not land enough within the bounds of the Mercer colony grant, remaining free from occupancy, sufficient to satisfy the orator's claim, that he may, by appropriate decree, receive certificates from the defendant for lands of equal value by way of recompense for lands wrongfully alienated to others. It is also prayed that the defendant and all his subordinates be enjoined and restrained from doing any act whereby there may issue any patent, certificate, plat, grant, survey, or location of lands outside. and beyond the limit of the Mercer grant, save only to your orator, and until complainant's just claims are satisfied.

The answer of the defendant denies that the contract is a valid contract, alleges that in a suit by the governor of the State of Texas in a court of competent jurisdiction, against said Mercer and his associates, the contract was by a decree of that court annulled and declared void, and all rights under it forfeited, and relies on that decree in bar of the present suit.