USA > Texas > The bench and bar of Texas > Part 37
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467
A. J. PEELER.
State of Texas, except to the complainant, William Preston, as chief agent of the Texas Association, or his successors or assigns, or to such person or persons as he or his succes- sors may in writing direct.
"""And it is further ordered, adjudged, and decreed, that the defendant, William C. Walsh, Commissioner of the General Land Office of the State of Texas, and each and every his successors in office, and all his or their servants, employes, agents, clerks, draftsmen, surveyors, deputies, and subordinates, each and every one be and the same are enjoined, restrained, and prohibited from hindering, ob- structing, preventing or delaying the said William Preston, his agents, attorneys, employes, or the successors or assigns of said Preston and their agents, attorneys or employes, in the surveying, selecting, platting, recording, entering or claiming any and all lands lying within the limits and boundaries of the so-called Mercer colony as set forth in the bill of complaint and the exhibits therewith filed; and the said defendant and his successors in office, and his and their agents and subordinates are enjoined from hindering, obstructing, preventing, or delaying the said Preston or his successors or assigns, or the Texas Land Asso- ciation, from performing and completing and perfecting all and singular the several conditions, duties, obligations, and acts devolving upon the said Preston or said association, under the terms and stipulations of the colonization contract set forth in the bill of complaint in this cause, and in the exhibits filed with the said bill of complaint, provided, that this decree and the injunction herein shall not be held nor intended, to affect any lands appropriated or set apart by the act of Congress of the Republic entitled, "An act appropriating certain lands for the establishment of a gen- eral system of education," approved January 26, 1839, and which lands were legally located, surveyed and appropriated for a State university, prior to January 29, 1844, the date of the Mercer colonization contract.
" And it is further ordered and adjudged that the defend- ant do pay all the costs herein incurred, the clerk to tax the same and that proper process issue therefor.'
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BENCH AND BAR OF TEXAS.
"An elaborate opinion in support of this decree will be found in 10 Federal Reporter, p. 315.
" Immediately after this decree, Judge Willson, whose val- uable services, to which I have already referred, contributed to the ultimate success of the defense, having been appointed a judge of the Court of Appeals, ceased his connection with the case, and its management thereafter, until its final decision by the Supreme Court of the United States, fell exclusively upon me, and had defeat instead of success fol- lowed, it should, if upon any one, have been visited upon me.
" Immediately after this decree, General Preston caused a notice to be published in the Austin Statesman, to the effect that the Mercer colony grant had been fully estab- lished, and that all locations, surveys and patents within its limits after January 29, 1844, had been declared invalid. All parties interested, desiring information, were directed by this notice to confer with his attorneys and agents at Austin. The object of this notice is apparent, and I am informed that some persons, to avoid injury and loss, did pay to Preston or his agents money, in order to get their patents from the general land office.
" The effect of this decree will be better understood by reference to a communication from the Hon. W. C. Walsh, commissioner of the land office, addressed to counsel for the State, for the purpose of aiding the advancement of the cause in the Supreme Court of the United States. He says: -
" 'As commissioner of the general land office of the State of Texas, and appellant in the above entitled cause, I desire you to make an effort to have the same advanced at the present term of the Supreme Court. My reason for wishing a more speedy determination of the case than would follow if it takes its course on the docket is, that the decree appealed from embarrasses the administration of the land department of the State government, and operates to the prejudice of a large number of citizens.
" ' Mercer's colony contains within its limits, as claimed about 4,000,000 acres of land and embraces in whole, the
469
A. J. PEELER.
counties of Navarro, Kaufman, Rockwall and Hill, and in part, the counties of McLennan, Limestone, Freestone, Anderson, Henderson, Van Zandt, Raines, Hunt, Hopkins, Collin, Dallas, Ellis, Johnson, Hood and Somervell, and must have at this time, taking as a basis the United States Census Report for 1880, a population of not less than 131,- 000.
" ' It is very important to the people of this rich and thickly settled section that they should be able to obtain from my office copies of maps, plats, etc., to be used in settling and adjusting the corners and boundaries of their lands. Many of the surveys are old, and the landmarks have passed away, and recourse to records and papers in my office is essential to their re-establishment. Under the injunction perpetuated by the Circuit Court, in its final decree, I am restrained from issuing any patent, certificate, plat or grant of any land within the boundaries of said colony ; and not- withstanding repeated requests, I have not only refused to furnish maps or plats or copies thereof, but even to answer interrogatories from the courts of the State, when such interrogatories would require copies of papers or maps or plats of land pertaining to titles within said colony. The effect of all this is to tie up the land office, and practi- cally deny to a considerable portion of the people of the - State access to the records of my office, and this too, though their titles may have originated long before the Mercer col- ony grant, and may have no connection therewith.
" 'As I construe the injunction, it also precludes me from giving official information or furnishing maps to county surveyors with reference to county boundaries within said col- ony and is in many other ways an obstruction to the adminis- tration of the affairs of my office. As you are aware, hav- ing no personal interest in the matter, being simply an offi- cer of the State, I was unable to give a supersedeas bond and William Preston has now a suit pending in the Circuit Court, filed since the appeal was perfected, an application for the appointment of a receiver, to divest me of all control of matters pertaining to said colony. As to whether it is proposed to press this application, I can not say, but this
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BENCH AND BAR OF TEXAS.
and such like proceedings afford, it seems to me, an addi- tional reason why, if it be possible, the case should be advanced.'
" Governor Roberts in a communication for the same pur- pose, says: -
" ' I concur with the Hon. Wm. C. Walsh, commissioner of the general land office of the State of Texas, in the propriety of making an effort to advance the case to which he is appellant in the Supreme Court of the United States. The State, it is true, is not nominally a party to the suit, but the decree appealed from, operates directly upon a State offi- cial, and obstructs him in the discharge of important duties in which the State and a large number of citizens are inter- ested. I hope you may be able, in view of the nature of the case and the public interest involved, to secure its speedy determination.'
" And in speaking of this decree of the Supreme Court of the United States, says : ' It is not very easy to see on what principle this decree can be sustained. There is no decree by which the right of plaintiff to any specific land is affirmed nor to any ascertained quantity of land to be located gen- erally.
" ' There is no attempt, as there can be none in this suit to adjust the conflicting rights of the State of Texas, and the plaintiff in this land. There is no attempt to define the number of acres to which the plaintiff is entitled, or what he is yet to do, or what he may do, to perfect his right to any land whatever.
"'And yet without establishing any such right or deciding what plaintiff may yet do to establish a right, the hands of the government are tied absolutely to all the vacant land which belongs to it within the colony limits. Not only are the hands of the government thus tied, but other persons having rights inchoate or vested in those lands, with undis- puted claims to patents, to certificates, to surveys perhaps, are all arrested in the precise condition they may be at the time this decree was rendered. The whole land office bus- iness and functions of the commissioner within that colony, no matter whose interests are involved, are paralyzed by
471
A. J. PEELER.
this decree. And what is more, they are paralyzed forever ; for the language is that the commissioner and all his clerks, agents, etc., are enjoined forever from doing the forbidden acts.'
" Upon consultation it was deemed advisable by Governor Roberts, Hon. W. C. Walsh, commissioner of the land office, and Hon. J. H. McLeary, then attorney-general, to prosecute an appeal from this decree to the Supreme Court of the United States. In the propriety of this action Judge Willson, and my then law partner, Mr. Maxey, and myself concurred. Governor Roberts, representing the State, entered into a written agreement with Peeler & Maxey to prosecute this appeal upon the following terms : Peeler '& Maxey were to pay all traveling and other personal ex- penses, and were to receive in full for services $2,500 cash, and a similar amount when the case was submitted to the Supreme Court, making the whole fee $5,000. The State was to pay the costs of suit, etc. The contract is in dupli- cate, one being in my possession and the other on file in the executive office.
" The third clause of this contract reads: ' Inasmuch as the appeal in said case does not operate as a supersedeas, and, pending the appeal, various efforts may be made to enforce the decree in the Circuit Court, it is further agreed that, if steps of importance should be taken in said case, in the said Circuit Court, pending said appeal, such as may not reasonably have been anticipated, and as require considerable labor and attention from counsel, then a fair compensation for such service, to be hereafter agreed upon, is to be allowed and paid by said State.'
"As soon as it was settled that I was to take charge of the case, I at once took steps to perfect the appeal. This being done, I had the transcript, which contained six hundred and eighty-nine pages, made up under my own personal super- vision. In addition to this I prepared a history of the case for the use of the State, containing, together with the appen- dix thereto, two hundred and forty-six pages of printed matter. This was a work of great labor and occupied much of my time. The object of its preparation was to have, in
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472
BENCH AND BAR OF TEXAS.
view of the importance the case had assumed and the extent to which public and private rights were involved, a full and accurate history of everything in relation thereto for the information of the officers and Legislature of the State. The advantage of such a document, in the event of an appeal to the Legislature for relief or for a compromise as was apprehended might be made, led to the publishing of several hundred copies of this document by the State, some of which I suppose still remain in the public archives.
" For this I neither charged nor expected compensation. The transcript was completed June 8, 1882, and was at once forwarded to Washington, and filed in the Supreme Court, June 26, 1882. After perfecting the appeal in the interest of the State for the defendant, Walsh (Cause No. 863) the complainant, Preston, also perfected and prosecuted an appeal (Cause No. 864) in his own behalf, thus making two cases instead of only one, as was contemplated at the time the contract for fee was made. As already noted in the communication of Commissioner Walsh, he was unable to give a supersedeas bond, and the complainant, taking ad- vantage of this, applied to the June term of United States Circuit Court for the appointment of a receiver to collect and take charge of all funds, lands, etc., to which Mercer and associates, or those claiming under them, asserted title under the final decree of the Circuit Court, and generally, for that it was its purpose, to administer the land office so far as the country embraced within the limits of the colony contract was concerned. This application, the effect of which, if granted, would have been most mischievous upon the interests of the State and the people, was pressed in open court by Gen. Preston and Mr. John Mason Brown · before Judge Woods. It was resisted by me, and the result of the argument was that Judge Woods then declined to grant the relief, but required the commissioner to put in an answer which I afterwards prepared and filed. After- ward the complainant abandoned, pending the appeal, and in view of the steps which had been taken to advance the case, all further efforts in this direction. This was a matter which occupied much of my time, and for which, under the
473
A. J. PEELER.
third clause of the contract, I am entitled to a reasonable compensation.
" Seeing the importance of an early decision, I went to Washington in December, 1882, for the purpose of endeav- oring to get the Supreme Court to advance the case on its docket. I went by New Orleans on my way to Washington and had a personal conference with Judge Pardee, and suc- ceeded in obtaining from him a communication recommend- ing the advancement of the case. Though not strictly a case which under the rules the Supreme Court would advance, I had the good fortune to obtain an order for its advancement, and for the hearing of the cause in March, 1883. But for this, the case would, in all probability, not have been reached until some time in 1886. I then re- turned home, and at once began the preparation of my brief, which, together with the appendix, contains two hun- dred and forty-six pages of printed matter. In addition to my brief proper on the appeal of Commissioner Walsh (Cause No. 863), I was compelled also to prepare a brief of forty-four pages of printed matter for the purpose of meeting the appeal (Cause No. 864) taken by Preston. While I never had much doubt of being able to reverse the decree of the court upon the appeal of Commissioner Walsh, I naturally felt great concern when in addition to this I was called upon to meet the questions raised by Preston on his appeal. That the difference between the two cases may be appreciated, I give the errors as assigned by Walsh on his appeal, and the errors as assigned by Preston on his appeal.
" The errors assigned by Walsh are as follows: -
"' 1. The court erred in decreeing under law and proofs that Mercer and associates had so performed the conditions of their contract with the Republic of Texas as to acquire thereunder rights susceptible of judicial cognizance and en- forcement.
" . 2. The court erred in holding that articles of annexation between United States and the Republic of Texas created a trust in favor of Mercer and associates cognizable by said court.
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BENCH AND BAR OF TEXAS.
"'3. The court erred in not sustaining defendant's plea of res adjudicata.
" 4. The court erred in not sustaining defenses of stale demand, laches and acquiescence.
" ' 5. The court erred in holding that complainant had shown such interest in subject-matter of suit and such title in himself as to authorize decree in his favor.
" ' 6. The court erred in not dismissing bill, because in effect a suit against State of Texas.
" 7. The court erred in not sustaining defendant's objec- tions for want of parties.
" $ 8. The final decree, as rendered, is not only contrary to law, but fails to define rights of complainant or duties of defendant, and must prove nugatory so far as real merits of controversy are concerned. Said decree is further erroneous in adjudging cost of suit against defendant Walsh.'
" The errors assigned by Preston are as follows : -
" The Circuit Court declined to give relief to the extent prayed by complainant : -
"$ 1. It refused to grant a mandatory injunction inhib- iting the land commissioner's further refusal to issue cer- tificates and patents for the ascertained quantity of land (1376 sections) under the contract, within the colonial boundaries, or its equivalent in value elsewhere.
" . 2. It refused a similar mandatory injunction inhib- iting his refusal to issue certificates and patents on tender of the contract price, for the alternate 1376 sections within the colonial boundaries, or its equivalent in value else- where.
"' 3. It refused to grant a mandatory injunction, the effect of which would be to permit the location of com- plainant's patents and certificates on any vacant and unoc- cupied lands of Texas, within or without the limits of Mercer colony.
"'4. It refused to recognize complainant's claim as a trust fastened upon the entire public domain and enforce- able in equity as against the unappropriated lands.'
"On behalf of Preston, three printed briefs were filed in
intodia
475
A. J. PEELER.
the Supreme Court, one by General Preston, one by Mr. Mason Brown and one by Mr. George Davie, making with the documents thereto appended, 243 pages.
" The two cases were argued orally before the court by Messrs. Brown & Davie for Preston, and by myself in be- half of the State. Owing to the importance of the case, the court declined to hear it without a full bench, and owing to the press of business before the court it was not decided until the ensuing term, on November 19, 1883. The opinion of the court, delivered by Mr. Justice Miller, with whom concurred Chief Justice Wait and Associate Justices Bradley, Wood, Matthews, Gray and Blatchford, and the dissenting opinion of Mr. Justice Harlan, with whom concurred Mr. Justice Field, will be found on 109 United States, page 297. An examination of these opinions will show what the court considered the questions presented upon the two appeals.
" The judgment of the court was that upon the appeal of Walsh the decree of the Circuit Court below be reversed and the case remanded with directions to dismiss the bill which necessarily disposed also of Preston's appeal. After an attentive examination of the dissenting opinion of Mr. Justice Harlan, taking into consideration the fact that Judges Wood and Pardee had both rendered unfavorable opinions and the former was one of the members of the bench to finally pass upon the case, it can hardly be said that the case was free from difficulty or was not one requir- ing great labor and involving great professional responsi- bility.
" As soon as it could be done after the Supreme Court had decided the case, I obtained a mandate from that court and filed it in the United States Circuit Court at Austin, and at the May term of the said last named court I obtained a decree directing, in pursuance of the mandate, the bill to be dismissed and taxing all costs of the suit from its inception against William Preston. A certified copy of this decree I caused to be at once filed with the commissioner of the general land office, and this finally disposing of the case, my connection therewith ceased.
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BENCH AND BAR OF TEXAS.
" I submit herewith a copy of the printed report of the case made for the use of the State, a copy of the printed transcript of the case, and copies of the briefs of the cases on both sides, on the two appeals as filed in the Supreme Court of the United States.
" Though I have expended a considerable portion of what I have received out of the fee coming to Mr. Maxey and myself, in going to, returning from and remaining at Wash- ington and practically, from the time the case went to the Supreme Court, until its argument in March, 1883, aban- doned all other business so as to give it my best attention I ask nothing further as to the appeal ( cause No. 863 ) of Com- missioner Walsh. However disproportioned it may seem, when compared with the magnitude of the interests in- volved and the consequent labor and responsibility of coun- sel, I am bound by the contract and make no complaint. I only ask for such reasonable compensation as I may be en- titled to for services rendered the State in the matter of the application for the appointment of a receiver and in the matter of Preston's appeal ( in cause No. 864). For these services the contract contemplates I shall be paid, and I am prepared to agree with your Excellency, or any other rep- resentative of the State, having authority to act in the premises at any time on the amount thereof. If your Ex- cellency has no appropriation which you can apply to my claim, I then trust it will meet your approval for me to inclose copies of this communication to members of the Legislature now in session, upon whose judgment as to what is right I must rely -a judgment which shall be ex- ercised so far as I am concerned free from personal appeals and influences.
" If I have seemed to give special prominence to my own services in the case, it is not from any desire to detract from other counsel, for I cheerfully accord to all high abili- ties and a faithful discharge of duty, and claim no honor which I do not willingly share with them ; but it is because "I am presenting my personal claim, it having been under- stood between Mr. Maxey and myself, after the dissolution of our copartnership, that for services not covered by the
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A. J. FEELER.
regular fee in which we participated, I should be entitled to the compensation. In conclusion, it is proper for me to say that I have submitted this communication to Gov. Roberts, Hon. W. C. Walsh, Hon. J. H. McLeary, Hon. S. A. Willson, and Col. W. P. Gaines, former law partner of Judge Willson, and to T. S. Maxey, Esq., my former partner, with the request that if I have fallen into any errors or mistakes, they point them out. A reply from from each of these gentlemen will be found herewith.
" Respectfully submitted, A. J. PEELER."
" GENERAL LAND OFFICE, " AUSTIN, TEXAS, January 31, 1885.
. " A. J. Peeler, Esq., Austin, Texas -
"DEAR SIR: I think your communication is in every par- ticular correct.
" Very respectfully,
W. C. WALSH."
" AUSTIN, TEXAS, January, 31, 1885. " Col. A. J. Peeler, Austin -
" DEAR SIR : I have examined your report of the ' Mer- cer Colony Case ' and I believe it to be entirely correct. I do not hesitate to say that the compensation received by you in this case, considering the immense interests at stake, the important questions involved, and your valuable and untiring services to the State, is far below what it should have been, and in my opinion your claim for additional compensation is proper and just.
" Respectfully yours, WM. P. GAINES."
" AUSTIN, TEXAS, January 31, 1885. " Col. A. J. Peeler -
" DEAR SIR : I have received printed communication ad- dressed to the Governor relating to your employment and services in the Mercer Colony cuse in the Federal courts. The claim, though unfounded, was surrounded with a variety of circumstances that gave it a plausible appearance of merit, which required a thorough and laborious investigation into the facts and law of the case, and a competent knowl-
a
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BENCH AND BAR OF TEXAS.
edge of equity and of equity practice in the Federal courts. The suit, as I regard it, was a bold adventure in an effort to enlist the powers of a Federal court of equity to restrain the action of the State government in regard to the land within the large and populous territory of the State, known as Mercer's Colony, and to throw a cloud upon the land grants of the persons who resided within it, so as to force in the end some sort of a legislative compromise similar to that which was effected in the claim of the Peters' Colony contractors. The ability and apparent confidence with which the case was prosecuted, the wide range of the mat- ters involved in it, obscured by the long lapse of time, to which may be added the great uncertainty as to what extent a Federal court of equity might go in its interference with the operations of the State government to reach some com- pensation for a supposed inchoate equity, together with the very unfavorable decisions of the Federal Circuit Court tending in that direction, made it necessary to give to the case almost constant attention and watchfulness, so as to be able to meet the different positions in the case.
- " I know that much of your time was devoted to this case from the time of your employment to the end of it in the Supreme Court. That you was equal to the task is fully shown by your written history and brief of the case, but it is still made more perspicuous in the decision made, and opinion delivered by the Supreme Court of the United States in the case. That opinion shows that the specious and adventitious circumstances attending the case were elimi- nated, and the baseless foundation of the case made bare to view, which required the court not only to revise the judg- ment of the Circuit Court, but to order the bill to be dis- missed, which put an end to the claim forever.
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