Camp v. Gulf Production Co.

61 S.W.2d 773, 122 Tex. 383, 1933 Tex. LEXIS 105
CourtTexas Supreme Court
DecidedMay 13, 1933
DocketNo. 5872
StatusPublished
Cited by53 cases

This text of 61 S.W.2d 773 (Camp v. Gulf Production Co.) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Camp v. Gulf Production Co., 61 S.W.2d 773, 122 Tex. 383, 1933 Tex. LEXIS 105 (Tex. 1933).

Opinion

Mr. Judge CRITZ

of the Commission of Appeals delivered the opinion for the court.

This suit was brought under the provisions of Article 5323, R. C. S. of Texas, 1925. At the threshold of the case we are met with a contention by defendants in error that the act or statute in question is unconstitutional and void. We must therefore first determine that contention, as a holding that the statute is invalid would necessarily result in dismissing this whole proceeding.

The act in question, Art. 5323, is as follows:

“The rules governing the sale of unsurveyed school lands are:
“1. Application. — One desiring to purchase any portion of the unsurveyed land believed to belong to the school fund shall make a written application of inquiry to the Commissioner. The inquiry shall give the applicant’s post office address, state in effect that he desires to buy the land if it is for sale and sufficiently designate it. If it appears from the records of the Land Office that the area belongs to the public free school fund, or if there be doubt as to the existence of the area as public free school land, the applicant shall be advised and given the [390]*390name and address of an authorized surveyor with whom he may contract for the survey of the land at the expense of the applicant. The applicant shall file an application with the surveyor accompanied by one dollar as a filing fee. The application shall be filed and recorded and sufficiently describe the land. The survey shall be made and returned to the Land Office within ninety days after the date of the Commissioners’ advice as to an available authorized surveyor.
“2. Suit to require survey — If the Commissioner declines to recognize the existence of the area as public school land and refuses to authorize a survey to be made, such person may file suit against the county surveyor in the district court of the county in which the land is located, or in the county to which such county may be attached for judicial purposes, to compel him to make the survey and thereupon the surveyor shall implead the claimant of the land and in such proceedings determine if the area be public land. In such proceedings the surveyor shall not be held for any cost incurred. If the final judgment of the court should decree the area or part thereof to be school land the surveyor shall make the survey, and the application, field notes and one dollar filing fee shall be filed in the Land Office within ninety days from the date of the final decree.
“3. Classification — When the surveyor returns the field notes and a plat of the survey to the Land Office, together with one dollar filing fee to be paid by applicant, he shall report under oath the classification and reasonable market value of the land and also the timber thereon and its value, which may be considered in connection with such other evidence as may be required by the Commissioner in determining the price to be given for the land and timber. If upon inspection of the papers the Commissioner is satisfied from the .report of the surveyor and the records of the Land Office that the land belongs to the public free school fund and the survey has been made according to law, he shall approve the same by classifying and valuing the land, and mail notice of such action to the applicant, giving the classification, price and terms.
“4. Terms of sale. — Any timber on such land shall be sold for cash at its reasonable market value. No award shall be issued for the land until the timber shall have been fully paid for. The applicant shall file in the Land Office his application for the purchase of the land together with one-fortieth of the appraised value fixed thereon within sixty days from the date of the notice of the classification and valuation, together with the applicant’s obligation for the balance of the unpaid purchase [391]*391price bearing interest at the rate of five per cent per annum, and the obligation and other conditions of sale shall be the same as that for surveyed land. If such application should not be filed within the time prescribed herein, the Commissioner shall place the land on the market for sale upon the same terms as are herein provided for other surveyed school land. If upon the inspection of any application, field notes and records of the Land Office, there should appear to be a greater area belonging to the school fund than that included in the application, and field notes, the Commissioner may, in his discretion, require the applicant to include the whole area in his field notes. If it appears that another- than the applicant claims an unsurv'eyed area which belongs to the school fund, the Commissioner may, in his discretion, refer the removal of such claim to the Attorney General before making a sale to an applicant. The Commissioner may sell the area though the Attorney General refused to institute proceedings for the removal of such claim.” (Acts 1907, p. 490; Acts 1919, p. 315).

An examination of the original act found at page 315, Acts Regular Session 36th Legislature 1919, discloses that the original act is substantially the same as the codification, except the original act is not divided into sections, while the codification is divided into four sections.

The constitutionality of the Act is attacked by the defendants in error on several grounds. These grounds are in substance as follows:

(1) Because the cause of action asserted by the party claiming the vacancy is not a cause of action or right claimed or asserted by such person, but is a cause of action which is alleged to reside in the State, and, is in effect a suit for the State.

(2) Because a suit under Article 5323, asserts a cause of action residing in the State, and not in the plaintiff named in the action, and permits the party named as a plaintiff to frame the issues, choose his own counsel, and conduct the litigation thereunder, and thus denies the county and district attorneys and the Attorney General the right and duty of representing the State, as committed to them under Section 22, Art. IV, and Sec. 21, Art. V of the Texas Constitution.

(3) Because the right of a private person to maintain a suit in which a cause of action is being asserted in favor of the State, or the public generally, does not exist at common law in Texas, and it has never been held that a private person has the [392]*392right to bring suit unless such private person has a vested right in the cause of action asserted.

(4) Because the plaintiff in a suit brought under Art. 5323 is not an applicant to purchase vacant unsurveyed school land in that such plaintiff has no right to file an application for the purchase of such land until after suit has been finally determined, and, therefore, has no such justiciable right as would entitle him to maintain a mandamus to compel a survey, and show that the area was vacant.

(5) Because Art. 5323 attempts to confer on the Land Commissioner the power to review a judgment of the district court.

(6) Because the judgment rendered under Art. 5323 is not binding on the State, and, therefore denies the defendant in such suit the due process of law which is guaranteed to him under Sec.' 19, Art. I of our State Constitution and under Sec. I of the 14th Amendment to the Constitution of the United States.

We shall dispose of these contentions by specific and general discussion of the constitutional provisions involved, and an interpretation of the act.

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Bluebook (online)
61 S.W.2d 773, 122 Tex. 383, 1933 Tex. LEXIS 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/camp-v-gulf-production-co-tex-1933.