207 U.S.

Argument for Defendant in Error.

Langdeau v. Hanes, 21 Wall, 521; Clark v. Hills, 67 Texas, 141; Menard Heirs v. Massey, 8 How. 293; Guitard v. Stoddard, 16 How. 494; West v. Cochran, 17 How. 403; Ryan v. Carter, 93 U: S. 78; Morrow v. Whitney, 95 U. S. 551; United States v. Roselius, 15 How. 34; Arguello v. United States, 18 How. 539; Forbes v. Withers, 71 Texas, 472; Commonwealth v. Pejepscut, Prop., 10 Massachusetts, 156; Rutherford v. Grienes Heirs, 2 Wheat. 196; Howard v. Perry, 71 Texas, 266; Hamilton v. Avery, 20 Texas, 635; Wright v. Hawkins, 28 Texas Supp. 408.

In such a case the official survey can only be avoided by the sovereign by timely allegations and proof of fraud, to which the claimant is a party. White et al. v. Burnley, 20 How. 247; Maxey v. O'Connor, 23 Texas, 234; Smith v. Hughes, 23 Texas, 249; Elliott v. Mitchell, 28 Texas, 111; Railway v. State, 81 Texas, 602; Howard v. Colquhoun, 28 Texas, 134; Land Company v. State, 1 Texas Civ. App. 621.

Section 11, of the act of September 23, 1901, when construed and enforced, as it was in this case, by the Court of Civil Appeals, as authorizing the institution by the Attorney General of this suit and the recovery herein of land to which the title of plaintiff in error and his predecessors had been perfected under the contract, as evidenced by the act of confirmation of 1852 and the resurvey thereunder and the return of the field notes to the General Land Office, impairs the obligation of said contract and is, therefore, in violation of, and contrary to, the provision of paragraph 1, of section 10, Article I, of the Constitution of the United States. Houston & Texas Central R. R. v. Texas, 177 U. S. 76; St. Paul Gas Light Co. v. St. Paul, 181 U. S. 147.

It is not too late to raise a Federal question on motion for rehearing, if the question is considered and passed upon by the state court. Leigh v. Green, 193 U. S. 85; Mallett v. North Carolina, 181 U. S. 589.

Mr. William E. Hawkins, with whom Mr. Robert Vance

Davidson, Attorney General of the State of Texas, was on the brief, for defendant in error:

The confirmation shown by the act of February 10, 1852, applied to the land embraced in the original grant to Pedro de la Garza, and not to the land awarded to the State of Texas by the judgment in this cause.

None of the three tracts awarded by the judgment in this case to the State of Texas was within the lines of the original grant as surveyed by Canales. Ryan v. Carter, 93 C. S. 82; Langdeau v. Hanes, 21 Wall. 529; Clark v. Hills, 67 Texas, 145; Corrigan v. State of Texas, 94 S. W. Rep. 95; Love v. Barber, 17 Texas, 320; Welder v.. Carroll, 29 Texas, 333.

Whether considered by itself alone or in connection with the Blucher resurvey of the Santa Rosa de Arriba grant, the act of confirmation of February 10, 1852, by the legislature of the State of Texas, did not constitute a contract between the owners of said grant and said State concerning the lands which were awarded by the state courts to the defendant in error, the State of Texas.

MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.

By the action of the Supreme Court of the State the judgment of the Court of Civil Appeals became the judgment of the highest court in the State to which the case could be taken, and hence the writ of error properly ran to that court. The constitutional question, although not raised theretofore, was distinctly presented in the petition to the Court of Civil Appeals for a rehearing, was considered by that court and decided adversely to the plaintiff in error. This court, therefore, has jurisdiction. Mallett v. North Carolina, 181 U. S. 589, 592; Leigh v. Green, 193 U. S. 79; French v. Taylor, 199 U. S. 274.

Coming to the merits, it is obvious that the act of 1852 was simply a confirmation of grants made by the Mexican States.

There is nothing in it which suggests the thought of new grants or of addition to old ones. The first section declares that the State "relinquishes all her right and interest in the followingdescribed lands to the original grantees thereof," and names the amount of land included in this grant so relinquished, six and one-half leagues. The second section makes it the duty of claimants to have surveys made of their existing grants. The third section makes provision in case of the loss of the 'original title papers of lands claimed by this act," while § 5 speaks of "the confirmation herein extended to the lands mentioned in this act."

But it is contended that there was an existing Mexican land grant binding upon the State of Texas as the successor of the former government; that the act of 1852 not only confirmed the grant, but also by the second section provided for a settlement of its boundaries through an official survey; that this was a proposition made by the State to the claimant of the grant which upon acceptance, as evidenced by the survey at the request of the owner and the return of the field notes to the land office, ripened into a valid contract; that when the survey was made and the field notes returned, as required by law, it became conclusive evidence against both the State and the claimant that the land surveyed was that granted by the Mexican State and confirmed by the legislature of Texas. This argument makes the survey the pivotal fact upon which the question of contract turns. Of course, whether there was or was not a contract is a question which, in a case like the present, this court must determine for itself. Jefferson Branch Bank v. Skelly, 1 Black, 436, 443; McCullough v. Virginia, 172 U. S. 102, 109; H. & T. C. Railway v. Texas, 177 U. S. 66, 77; St. Paul Gas Light Company v. St. Paul, 181 U. S. 142, 147; Muhlker v. Harlem Railroad Company, 197 U. S. 544, 570.

It will be perceived that § 2 does not name the individual to act for the State, but, only designates certain officials, any one of whom may make the survey, and imposes a duty upon the claimant of causing the survey to be made. It does not

prescribe the time within which the survey must be made. In fact, it was not made until seven years after the passage of the act, and the field notes were not filed until ten years after that. The purpose of the act was to enable the claimant to acquire a patent as better evidence of title, with a more accurate description of boundaries. The surveyor is not named as an agent of the State. On the contrary, an official act, that of survey, was authorized to be made at the instance of the claimant, but a mere surveyor is not by virtue of his office empowered to change boundaries. Those were given in the original Mexican grant, and his function was simply to resurvey, making the description more definite and certain. It could not have been within the contemplation of the legislature that this surveyor, picked out by the claimant, should have power to bind the State, by the mere matter of survey, to a grant nearly double the size of that which it confirmed by this statute of relinquishment. It must be borne in mind that the original grant was not a float-that is, a grant of so many acres to be located inside of a larger tract, in which the surveyor might have a discretion in selecting the particular tract— but it was a grant by metes and bounds, and the sole function of the surveyor was ministerial, to locate the tract and more fully describe those metes and bounds.

In all these proceedings the substantial elements of a contract are lacking. The State of Texas, succeeding to the sovereignty of the former government, recognized all that might, under any circumstances, be considered its international obligation and confirmed the title which had been made. It made no grant of additional land. It simply relinquished all claims to that which had been granted by the former sovereign and confirmed the title made by that grant. It received no consideration. As the description in the original survey was defective, it provided means for perfecting that description and authorized a patent, which is the highest evidence of title. On the other hand, the grantee, holding a grant from the State of Tamaulipas, received from the State of Texas no grant or

promise of additional land, but simply a declaration of its willingness to recognize and confirm the Mexican grant. He paid nothing to the State, but was only accorded by it the means of making his title definite and certain and the boundaries of his grant beyond question. In short, it was simply a proceeding established by the law of the State for making clear and certain the boundaries of grants which the State was willing to recognize, and in that proceeding a certain official of the State was charged with the ministerial duty of making a survey. He was given no authority to enlarge or diminish the grant, but only to ascertain what the real boundaries were. Further, the State has never given a patent, although this suit was not commenced for fifty years after the act of relinquishment, forty-three years after the survey and thirty-three years after the filing of the field notes in the state land office. The decision of the Court of Civil Appeals was right, and its judgment is

Affirmed.

WILLIAMSON v. UNITED STATES.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF OREGON.

No. 96. Argued December 5, 6, 1907.-Decided January 6, 1908.

Where the writ of error is prosecuted directly from this court on constitutional grounds, but there are errors assigned as to other subjects, this court has jurisdiction to review the whole case if any constitutional question is adequate to the exercise of jurisdiction. Burton v. United States, 196 U. S. 283.

An objection taken by a member of Congress that he cannot be sentenced during his term of office on the ground that it would interfere with his constitutional privilege froin arrest is not frivolous even though taken during recess of Congress, and such a claim involves a constitutional question sufficient to give this court jurisdiction to review the judgment by writ of error. Burton v. United States, 196 U. S. 283. The jurisdiction of this court to review on direct writ of error depends on the existence of a constitutional question at the time when the writ of error is sued out, and even if that question subsequently and before the