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Opinion of the Court.

debts thereafter incurred under old authority which were inconsistent with its requirements. It was made by the people a part of the fundamental law of the state that every debt incurred thereafter by a municipal corporation, under the authority of law, should carry with it the constitutional obligation of the municipality to levy and collect all the necessary taxes required for its payment.

It only remains to consider the objection that a tax cannot now be levied sufficient in amount to pay the entire judgment at once. The judgment is for interest in arrear and a small amount of principal. The law required a tax to be levied annually sufficient to pay all interest as it accrued, and the principal when due. This was neglected, and consequently there is now a large accumulation of a debt which ought to have been paid in instalments. Thus far the inhabitants have been allowed to escape taxation at the times it ought to have been laid, and to which they were under constitutional obligations to submit. The accumulation of the debt was caused by their own neglect as members of the political community which had incurred the obligation. Such being the case, we see no reason why it was not in the power of the court to order a single levy to meet the entire judgment which was all for past due obligations. Whether such a tax would be so oppressive as to make it proper not to have it all collected at one time was a question resting in the sound discretion of the court in ordering the collection. There is nothing here to show that there ought to have been a division.

The constitutional obligation of the city was not fully met by providing, when the debt was incurred, for the levy and collection of the necessary tax. It required as well the actual levy and collection when needed to pay the debt. This is an obligation that can be enforced by mandamus after judgment caused by a neglect to meet its requirements.

We see nothing in Weber v. Traubel, 95 Ill. 427, to the contrary of what is here decided. In that case there was no question of power to levy a tax beyond the one per cent. allowed by the charter to pay debts incurred under the authority of law after the constitution of 1870, and for the payment

Syllabus.

of which by means of taxation provision had been made as specially required by that constitution. The precise point there determined was that the three mills tax provided by the charter for the payment of the bonded debt, and the one mill tax for the “Library Fund,” under the act of 1874, were parts of the one per cent. allowed by the charter, and not additions to it. Here, however, the tax is in accordance with the special provision made to pay a new debt lawfully incurred, and to meet the requirements of the constitution in its regulation of the conduct of municipal corporations in such matters. This is a tax which the corporation, under the operation of the constitution, contracted with the bondholders to levy and collect to meet its liabilities on the bonds, and it is not necessarily limited to the three mills or the one per cent. of the charter.

Veither does the claim of the city find support in the case of East St. Louis v. Zebley, 110 U. S. 321. There the question was whether the court could compel the city to set apart any more than three out of the ten-mills charter tax to pay the bonded debt, and we held that it could not. No point was made as to the power of the city to levy more than a ten

mills tax, and it did not appear that the debt then in question was incurred after the constitution of 1870.

Judgment affirmed.

GONZALES v. ROSS.

THE

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR

WESTERN DISTRICT OF TEXAS.

Submitted November 2, 1886.

Decided March 14, 1887.

The Congress of Coahuila and Texas on the 28th April, 1832, passed a law

respecting the grant of public lands. One Gonzales applied for a grant under this law, and, on the 16th October, 1832, the governor made the grant of the land in dispute under which the plaintiff's claim in the customary form for such grants. A commissioner was appointed to give possessory title to the tract, and on the 18th April, 1834, he delivered to the grantee at Dolores formal possession of the tract, and executed and

Syllabus.

delivered a formal “testimonio” thereof. Ou the 26th March, 1834, the Congress of Coahuila and Texas at Monclova repenled the act of April 28, 1832. The laws of the Mexican states did not then take effect in any part of the country until promulgated there. There was no evidence of the promulgation of the repealing act at Dolores, but there was presumptive evidence tending to show that on the 3d May, 1834, it had not been promulgated there. Iield: that under all the circumstances, and in view of the distances of Dolores from Monclova, the presumption was that the repealing act had not been promulgated when the commissioner

extended the title to Gonzales. The act of the Congress of Coahuila and Texas of March 26, 1834, creating

a new system of disposing of the public lands, did not abrogate the grants and sales which had been made under the act of April 28, 1832, nor abol. ish the office and function of commissioners necessary for extending such

grants. From the notorious public history of the colony of Beales and Grant, and

from other notorious facts which are stated in the opinion of the court, it is Held, that the governor in the grant to Gonzales, which is the subject matter of this suit, intended to designate and did designate the commissioner of the neighboring enterprise as the officer to locate the grant and deliver possession to the grantee, and that his official acts therein, having been accepted and acquiesced in by the government, must be cop

sidered as valid, even if done by him only as commissioner de facto. The public officer who extended the lands in dispute must be presumed to

have extended them in the proper department, and this presumptive conclusion of law is made certain in fact by examining the laws referred to

in the opinion of the court. In 1834 the state of Coahuila and the department of Monclova extended

eastwardly at least as far as the river Nueces. As all favorable presumptions will be made against the forfeiture of a

grant, and as it will be presumed, unless the contrary be shown, that a public officer acted in accordance with law and his instructions, and as the government acquiesed in the commissioner's acts in extending the graut in dispute and no attempt had been made to revoke them or to assert : forfeiture; Held, that he had authority to extend the title, and his acts

must be considered valid. The testimonio in this case sufficiently connects itself with the original

grant and subsequent steps taken under it: it is not necessary that it

should be attached to it by a physical connection. The grant in this case gave power and authority to the commissioner to

extend it, and no further order was necessary. The extension of the title of the grantee by the commissioner in a Mexican

grant completed the title, without patent or other act of the gorerument, and notwithstanding the imposition of conditions subsequent; and the non-performance of such conditions subsequent constituted no objection

to the admission of plaintiff's evidence to show such extension. If a forfeiture of a Mexican land grant from non-payment or condition subOpinion of the Court.

sequent can be availed of hy a private person at all, it can only be after he has shown some right to the land in himself by virtue of a subsequent

purchase or grant from the sovereignty of the soil. Prior to the adoption of the constitution of 1876 the laws of Texas did not

require that a title under a Mexican grant should be registered in the county or deposited among the archives of the land office, in order to give it vitality; and it was only void as against third persons acquiring

title from the sovereignty of the soil, not having notice of it. Defences against Spanish and Mexican titles in Texas under Art. XIII of

the constitution of Texas of 1876 constitute no objection to the admission of evidence in support of such titles. Quære, as to the effect of the provisions in that article prohibiting the future registration of titles, or the depositing of them in the land office.

TRESPASS. Plea, not guilty. Judgment for defendants. Plaintiffs sued out this writ of error. The case is stated in the opinion of the court.

Mr. H. E. Barnard for plaintiffs in error.

Mr. C. W. Ogden and Mr. Bethel Coopwood for defendants in error.

MR. JUSTICE BRADLEY delivered the opinion of the court.

This is an action of trespass to try title, brought by the heirs of Juan Gonzales against The International and Great Northern Railroad Company and their tenant in possession (Ross), to recover eleven leagues of land situate in Kinney County, Texas, adjoining the Rio Grande. The defendants pleaded not guilty, and title from the sovereignty of the soil. At the trial a jury was waived, and the court found the facts specially (which are set out in a bill of exceptions), and rendered judgment for the defendants. The judgment is based upon the failure of the plaintiffs to make out their title; and their failure to make title arose from the court's overruling and rejecting the testimony offered by the plaintiffs as evidence of the extension of title to their ancestor, Juan Gonzales.

The court found and decided that the plaintiff had shown an application for, and concession of, eleven leagues of land in the name of Juan Gonzales, in the state of Coahuila and Texas,

Opinion of the Court.

and gave the purport of the documents showing the same, being an exemplification of the original in the archives of the government of Coahuila, at Saltillo. These documents were in Spanish, accompanied by a verified translation. They were exemplified under date of August 20, 1874, and had been duly recorded in the clerk's office in the records of Kinney County on the 8th of February, 1878, as appeared by the clerk's certificate thereon.

The application of Gonzales, as translated, was as follows, to wit: " To his Excellency: The citizen Juan Gonzales, before your

Excellency, with greatest respect, states: “ That in accordance with the provisions of the law of colonization of the state your Excellency will please grant me the sale of eleven sitios of land of those vacant lands of the department of Monclova and places by úne designated, promising to introduce in them the number of stock required by the same law and paying the value, delivering at once the fourth part of the same and binding myself to fulfil all requirements of the same law. Praying your Excellency will grant this petition as requested, will receive grace and justice.

“JUAN GONZALES."

The grant, bearing date, Leona Vicario, October 16, 1832, was attached to the application, and was in the name of the Governor in the usual form, and, as translated, was as follows:

“In accordance to article 13 of the new law of colonization enacted by the honorable Congress of the state April 28, 1832, I grant the sale to petitioner of the eleven sitios of land prayed for at the place designated by him, provided that they shall be all in one tract and not under any title belonging to any corporation or person whatsoever.

“The commissioner for the division of lands in the enterprise to which corresponds the one which petitioner solicits, and in his default, or in case there is none, or not being engaged in any other enterprise, the alcalde 1st, or the only one acting of the respective municipality or the nearest one, complying with [the] order given in the matter, will place him in

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