This is a petition for the writ of mandamus filed by Burnam, as relator, to compel the Commissioner of the General Land Office to reinstate him as purchaser of two sections of school land in Menard County, and in the event that can not be done to recognize him as lessee of the lands from the State. Ed Ellis, who made application to purchase the land subsequent to that of relator, was made a party defendant to the suit.
The following are the facts disclosed by the petition and answers: The lands in controversy were a part of the school lands of the State and are known as section 66, in the name of Beaty, Seale Forwood, and section 62, in the name of J.H. Gibson. The southwest corner of section 66 connects with the northeast corner of section 94 in the name of J.H. Gibson, which is also a school section. The northwest corner of section 62 also connects with the southeast corner of the latter section. But neither section 66 nor section 62 touch any other survey of school lands the title to which remained in the State.
We will state the transactions which resulted in this controversy, as nearly in the order of time as may be practicable. In 1883 section 94 was regularly sold by the Commissioner to one Priest; but in 1895, by a decree of the District Court in a suit brought by the State, the right of the purchaser was declared forfeited for the nonpayment of interest. A copy of that decree was filed in the Land Office on the 22d day of August of that year. On the 10th day of the same month, the relator applied for a lease of sections 62 and 66 for the term of ten years. *Page 314 They were awarded to him as lessee and his lease was kept in good standing up to August 14, 1900.
In June, 1900, relator made application to purchase section 66, and in July, of the same year, he applied also to purchase section 62. In his applications he complied in all respects with the law for the sale of "isolated and detached" sections of school lands. They were filed in the Land Office on the 16th day of June and the 8th day of July respectively, and the lands were awarded to him by the Commissioner then in office — the section 66 on the 28th day of July and section 62 on the 27th day of August, all in the same year. At the time of these awards, the map in the Land Office had upon section 94 the mark "F. 14146" — which, according to the practice in the Land Office, referred to the file number of the papers relating to the section, and was intended to show that the section had been sold to a purchaser under the statutes for the sale of the school lands, but did not show that the title had ever passed out of the State. This mark was placed upon the map in 1883, when the land was first sold. It also appears that in the abstracts of lands subject to taxation, furnished by the Commissioner of the General Land Office to the assessors of the counties from the year ending December 31, 1885, and for each successive year thereafter to and including the year 1900, section 94 was entered as having been sold to Priest.
On the 30th of August, 1895, after the sale of section 94 to Priest was forfeited, and a certified copy of the judgment of forfeiture had been filed in the Land Office, it was leased to one Perry Crowell for the term of five years. On August 6, 1900, one Wilkinson, as assignee of this lease, made application to purchase the survey as a detached section and his application was accepted and the land awarded to him. Having paid the purchase money in full, on February 14, 1902, a patent therefor was issued to him.
On the 9th day of March, 1903, the respondent Terrell as Commissioner of the General Land Office canceled each of the sales made to relator by his predecessor in office.
It therefore appears, from the facts stated, that at the time that the relator made his respective applications to purchase the two sections of land in controversy, and at the time they were respectively awarded him, section 94, which was the connecting link between sections 62 and 66, had been sold by the Commissioner under the terms required by the statute, but that the inchoate title thus acquired by the purchaser had been annulled by a judicial forfeiture for his failure to comply with the obligation of his contract; and that that section had become again a part of the State's school lands. As we understand the position of relator, it is not claimed that at the time the lands were awarded to him they were in fact detached. It is insisted, however, that since the Legislature has invested the Commissioner of the General Land Office with the power to sell the "isolated and detached" sections of school lands in certain counties of which Menard is one, the duty is necessarily devolved upon him to determine, in the first instance, what *Page 315 sections are so isolated and detached; and that when he has determined that question and made a sale accordingly, his decision is conclusive upon the matter. It is a well recognized rule, that, where an officer is empowered to determine a question of fact, in the absence of some provision of law for revision of his ruling, his decision is binding upon the courts. But does the case before us fall under that rule? The statute in question is in these words: "And all sections and fractions of sections, in all counties organized prior to the first day of January, 1875, except El Paso, Presidio and Pecos counties, which sections are isolated and detached from other public lands, may be sold to any purchaser, except to a corporation, without actual settlement, at one dollar per acre, upon the same terms as other public lands are sold under the provisions of this chapter." 2 Batts' Rev. Stats., art. 4218y. This does not in express terms authorize the Commissioner of the General Land Office to determine what sections were detached and what were not. But it is true that in order to exercise the authority conferred by this provision the Commissioner must first satisfy himself that the land is detached. But were the circumstances under which this fact was to be ascertained such as would indicate that the Legislature contemplated that in ascertaining the fact, he should act in a quasi judicial capacity rather than in that of a ministerial officer? The distinction between the ministerial and judicial functions of executive officers is thus defined by Mr. Justice Wheeler in the case of the Commissioner v. Smith, 5 Tex. 479: "The distinction between ministerial and judicial and other official acts seems to be that where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is ministerial; but where the act to be done involves the exercise of discretion or judgment in determining whether the duty exists, it is not to be deemed merely ministerial." When the act in question was passed, most of the school lands had been surveyed; the surveys had been delineated upon maps which were kept in the General Land Office. The sales were also made through that office, and the papers and records pertaining to such were held there on deposit. All the Commissioner was called upon to do in order to ascertain what lands were in fact detached and subject to be sold under the statute was to refer to the maps and the records on file in his office. Most duties that executive officers are called upon to perform are dependent upon the existence of one or more facts; and very few occur in which a fact can be more readily ascertained by an officer in charge of a department of the State government than the fact that a section of school land has become "isolated and detached." Certainly the statute quoted does not expressly confer any quasi judicial authority upon the Commissioner to determine the question; nor do we think, that, under the circumstances, is any such authority to be implied. Let us suppose that the sections in controversy had been in fact detached and the fact clearly appeared by the map and records in the Land Office, and an applicant had made application as *Page 316 required by the statute for their purchase, and that the Commissioner had rejected the application; it seems to us that, upon a proper proceeding for a writ of mandamus to compel him to accept the applications, this court would not hesitate to grant the relief sought.
The fact that the lands appeared upon the abstracts furnished the assessors of taxes, as having been sold, can, in our opinion, make no difference. The purpose of furnishing these abstracts was merely to inform the assessors what lands were subject to taxation. They were not made out for the guidance of prospective purchasers.
It is plain that in this case the Commissioner inadvertently made a mistake and, acting upon the belief that the land had been detached, accepted the relator's applications to purchase. Mistakes of a like character are not infrequent and are perhaps in a measure unavoidable. The cases which are brought to this court show that in such case it is the practice in the Land Office for the Commissioner to correct his mistake by rescinding his previous action, and where he has erred in making a sale to cancel his award. This seems to us a legal and proper practice; and that when the mistake is discovered the duty may be performed, either by the officer who made it, or by his successor in office.
For these reasons, we think the mandamus to reinstate the relator as a purchaser of the two sections of land in controversy should not be awarded.
The relator further avers, that, at the time he made his applications to purchase sections 66 and 62, he was the owner of and resided upon another survey of land, that these sections were within a radius of five miles of such survey, and prays, that, in the event that these lands in controversy were not legally sold as detached lands, he be held a purchaser as an actual settler. It is sufficient in answer to this prayer to say, that in order to have entitled him to purchase as an actual settler, his applications should have been placed on that ground, and, in his affidavit, he should have made oath as to the facts of his ownership of and residence upon his home survey. This was not done. Therefore, although he may have been competent to purchase as an actual settler, not having applied to purchase as such, he acquired no right by his applications unless the lands were in fact detached.
It also appears by the allegations of the petition and answer that after the relator was accepted as a purchaser, section 94 was applied for by one Wilkinson as a purchaser and that it was awarded and patented to him. But it also appears from the answer that section 94 was sold to Wilkinson as a detached section upon the theory that sections 66 and 62 had been legally sold. This we hold was not correct, and that therefore the sale of section 94 was not valid and did not detach the other two sections with which it was connected. Besides we think that the rule announced in Hazelwood v. Rogan, 95 Tex. 295, in reference to premature applications to purchase, would hardly apply to the facts of this case. In that case the application was made a very short time before the land was on the market and the award was made after the land *Page 317 became subject to sale and before any intervening right had accrued. Here, when the application was accepted and the award was made, the land was not detached and was not subject to sale as such.
It is also claimed, that, in case the sales to relator should be held void, since at the time of relator's attempt to purchase the land in controversy they were leased to him for the term of ten years extending from August 10, 1895, and the lease was in good standing, and since the purchase money paid by him is sufficient to cover the accrued rents, the money should be applied to the rent, and he should be reinstated as lessee. Where a lessee of the public free school lands, before the expiration of his lease, has, with the concurrence of the Commissioner, attempted to renew and extend his lease for an additional term of years, we have held that the attempted new lease is invalid, but where the rents paid under the attempted lease are sufficient to keep the old lease in good standing, they will be applied to the valid lease and the rights of the lessee thereunder preserved. Such is not the case before us. Here, since his attempted purchase, the relator has paid no rents; and we are of opinion that the Commissioner of the General Land Office has no right or authority to apply the purchase money paid by him to the satisfaction of the rents that would have accrued had the lease remained in force.
Our conclusion is that the writ of mandamus should be refused, and it is accordingly so ordered.