League v. De Young

2 Tex. 497

• Court: Texas Supreme Court
• Decided: December 15, 1847
• Status: Published

Opinion

Mr. Justice Lipscomb

delivered the opinion of the court

In this case the judgment of the court below ought to be affirmed for the following reasons:

First, because a mandamus is not a process that can be resorted to against a state, without her consent, and this is a suit, in effect, against the state, and conducted by no authority derived from the state,; that it is an attempted evasion of the well established principle, that the sovereign authority cannot be sued, in its own courts, without its express assent to such suit.

Second, because Ihe different acts of the congress of the republic of Texas, to detect fraudulent land certificates, are valid, and not repugnant to the constitution of the republic of Texas under which they were enacted. The claims to be acted on and regulated by those laws were only imperfect obligations, and could never be enforced by a judicial proceeding, until the political authority had prescribed the mode. The obligation remains imperfect on the part of the government as long as it retains the fee; and should it refuse to convey the fee, it cannot be sued for such refusal unless it consent to be so sued. As an incident to the fee being in the government, it has the right to attach such terms and impose such regulations as may be deemed most consistent with sound policy. That this has been the uniform construction given to the power of the legislature over all inchoate and imperfect claims to land, by the judicial authority of the country, will be manifest by reference to the decisions of the supreme court of the late republic, in the cases of The Board of Land Commissioners of Nacogdoches County v. Reily, and The Same v. Walling, Dallam, 381 and 524, and by the decisions of this court in Trimble et al. v. Smithers, 1 Tex., 790; Jones v. Menard, 1 Tex. 771; Hosner v. De Young, 1 Tex. 764, and the Administrator of Norton v. Ward, Commissioner of the General Land Office, ante, 357.

Third, because the plaintiff, not having sued the state in the mode pointed out by law, and in which alone it consented to be sued, cannot be allowed to seek a remedy in this action.