Taylor v. Hall , 71 Tex. 206 ( 1888 )

Gaines, Associate Justice,

This suit was brought by appellant to compel by mandamus the Commissioner of the General Land Office to issue to him patents to lands to which he is entitled for building the State capítol, without paying the patent fees. Exceptions to the petition were sustained and the suit dismissed.

This is a companion case to cause No. 6388 between the same parties, and the opinion in that case this day delivered is also decisive of this. We there held that the Commissioner had a right and it was his duty to demand the patent fees before delivering the patents, and it follows he can, in no event, be compelled to deliver them until the fees are paid.

We do not mean to imply by this that a mandamus will lie against him, even if the appellant were entitled to his patent without payment of fees. We are clearly of the opinion that a mandamus will not lie against him in a case like this. Waiving the question of-the constitutionality of the act of February 15, 1881, which provides that no writ of mandamus or injunction shall issue against any of the heads of departments in this State, and waiving the further question, whether the Commissioner can be compelled to issue a patent when the real controversy is between individuals, we think this is in effect a suit against the State, and for that reason a mandamus will not lie. The Commissioner has no interest in the subject matter of the suit, but the State has a direct pecuniary interest. It is an attempt to enforce against the State by the writ of mandamus against the Commissioner of its General Land Office, a specific performance of a contract to convey lands. The real question which is sought to be adjudicated is, whether the State is entitled to the patent fees on the lands or not. If this were determined in the negative the State and not the Commissioner would be loser. The State can not be sued without its consent, either directly or indirectly. The following decisions, in our judgment, are decisive of the question: Marshall v. Clark, 22 Texas, 23; League v. De Young, 2 Texas, 497; Treasurer v. Wygall, 46 Texas, 447; Railroad Company v. Gross, 47 Texas, 429; Ex Parte Ayres, 123 United States, 443; Hosner v. De Young, 1 Texas, 764; Railway Company v. Randolph, 24 Texas, 317.

We find no error in the judgment and it is affirmed.

Affirmedl.

Opinion delivered June 15, 1888,

[Associate Justice Walker not sitting,]