This is an original proceeding in this court, by the relator against Charles Rogan, Commissioner of the *Page 119 General Land Office of the State of Texas, and R.M. Thomson, Jr., respondents, by which relator seeks a mandamus to compel Charles Rogan to set aside a sale heretofore made of the lands in controversy to R.M. Thomson, Jr., and to require said Rogan to approve the application of the relator to purchase the same and to award the same to Carothers. The facts alleged in the petition and answers material to the determination of the issue are these:
The lands in controversy are situated in Schleicher County in the absolute lease district, and are a part of the public free school fund of the State of Texas. The land had been properly classified as grazing land and regularly appraised at $1 per acre. On the 22d of November, 1898, A.J. Baker, Commissioner of the General Land Office of Texas, executed and delivered to H.A. Thomson a lease for ten years from the 7th day of November, 1898, for eleven sections of land situated in Schleicher and Sutton counties, including the two sections in controversy in this action. The rent was regularly paid for the year 1900, and prior to the 24th of December, 1900, H.A. Thomson transferred his interest in the two sections in suit, under said lease, to R.M. Thomson, Jr., who owned and lived upon individual patented section 57 in block A, H.E. W.T.R.R. Co., in said county, and on that day made application in compliance with the law to purchase the two sections of land in controversy as additional lands, they being within a radius of five miles of the section on which he resided. The Commissioner of the General Land Office approved the application of R.M. Thomson, Jr., and awarded him the land on the 5th day of February, 1901. Before R.M. Thomson, Jr., made application for the land in controversy he had purchased from the State section 58, certificate 31, block. A, H.E. W.T.R.R. Co., in said county and was an actual settler thereon; he had purchased as additional lands lying within a radius of five miles of said home section, sections 40, 68 and 70, in same block, and on the 8th day of December, 1900, the said R.M. Thomson, Jr., by deed duly executed according to law, conveyed all of said sections to H.F. Thomson, who settled upon one of said sections and gave his obligation in lieu of the obligation of R.M. Thomson, Jr., which was accepted by the Commissioner of the General Land Office, and the said H.F. Thomson thereby became lawfully the purchaser of the said four sections of land.
R.L. Carothers being an actual bona fide settler upon section 74, block A, H.E. W.T.R.R. Co., certificate 39, filed his application on the 9th day of April, 1902, to purchase the said section 74 as a home, and on the same day the said relator filed his application to purchase section 26, block 15, H.E. W.T.R.R. Co., as additional land, it being within a radius of five miles of said section 74. Carothers complied with all the requirements of the law necessary to entitle him to purchase the land if it was on the market for sale, but the Commissioner of the General Land Office rejected his applications for said *Page 120 sections, alleging as a reason therefor, that the land had already been sold to R.M. Thomson, Jr.
In answer to the petition respondent Rogan filed a general demurrer and a special exception to the effect that it appeared from the petition that the land in question had been regularly leased to H.A. Thomson, which lease has not expired by its terms, and it is not shown that the said lease had been canceled in any manner required by the laws of the State.
By special answer respondent Rogan set up the facts stated above, and pleaded that under the Act of 1897 and under the several laws of this State on the same subject each of the Commissioners of the General Land Office who preceded him in office had uniformly held and ruled that lands held under leases, prohibited by law to be sold to other persons, could lawfully be sold to lessees of such lands or to their assignees. It was alleged that under this construction the Commissioner of the General Land Office had sold large quantities of the lands belonging to the public free school fund of the State.
Respondent R.M. Thomson, Jr., filed a general demurrer, also special exceptions raising practically the same questions as were raised by the special exception of the respondent Rogan. Thomson pleaded specially the facts connected with this transaction in connection with the lands therein sued for, and also the construction of the law by the Commissioner of the General Land Office as relied upon by respondent Rogan.
If the contention of the relator that the sale of the land in controversy made by the Commissioner of the General Land Office to R.M. Thomson, Jr., was void be sustained, then the result will follow that the lease was not canceled thereby and is still in force, hence at the time that the relator made his application to purchase the Commissioner had no power to sell. It is claimed by the relator that the respondents are estopped to deny that the lease was canceled. However that might be as to Thomson, the State is not estopped by the act of the Commissioner in the exercise of a power not delegated to him. Day Co. v. State,71 Tex. 553. If it should be held that the sale to Thomson was authorized by the statute, then it was a lawful sale and terminated the lease, vesting in Thomson a right as purchaser of the land, and his application and the award made by the Commissioner of the General Land Office being prior to the application of the relator the latter would have no right to purchase. It follows that under no view of the facts alleged could this court grant to the relator the writ of mandamus prayed for, for which reason the general demurrer of the respondent Rogan to the relator's petition is sustained and this cause is dismissed.
Dismissed. *Page 121