This was a suit commenced on behalf of the state of Texas against the Galveston, Harrisburg & San Antonio Railway Company, in the district court of Brewster county, to recover 1,383 tracts of land, containing in the aggregate 879,078 acres, situated in various counties, and to cancel certificates and patents issued to the railway company therefor. The railway company filed a petition for the removal of the cause to the circuit court of the United States, which was overruled. The company then presented its defenses by demurrer, plea, and answer, relying on its charters, and the laws, general and special, of the state of Texas, by reason whereof and action thereunder it asserted it had become entitled to the lands in question; also setting up that it had in 1880 mortgaged the land in controversy to Andrew Pierce and George F. Stone, that Pierce was dead, and that Stone was the sole surviving trustee, and was a necessary party to the suit, and the grounds on which it insisted that the state was estopped from recovering the lands; and in its answer prayed for affirmative relief.
The cause was tried, and judgment entered therein in favor of the state of Texas, and was thereupon carried by appeal to the court of civil appeals for the Fourth supreme judicial district of the state of Texas, which court then certified the following statement and questions to the supreme court of the state for adjudication:
'The state of Texas instituted suit against appellant to cancel certain land certificates and patents issued by the state to appellant for land, amounting to 879,078 1/20 acres. It was alleged and proved that the certificates and patents were issued to the Galveston, Harrisburg & San Antonio Railway Company for a portion of its railroad constructed between the Colorado river and Guadalupe river, between the time of the adoption of the constitution of 1869 and the passage of the act of August 16, 1876 (articles 4267-4277, Rev. St.). On July 27, 1870, by special act of the legislature, appellant was chartered and recognized as the successor of the Buffalo Bayou, Brazos & Colorado Railway Company. After the passage of the act of August 16, 1876, and before its repeal, in 1882, appellant constructed about 163 miles of railroad, from San Antonio westward towards El Paso, for which the state refused to issue land certifia tes, the governor refusing the application for inspection on May 22, 1882, on the ground that the law granting certificates had been repealed.
'Question 1: Did section 6, article 10, of the constitution of 1869 repeal all laws giving railroad companies the right to earn lands from the state by the construction of railroads; and, if so, would this repeal apply as well to the right to earn lands given through charters as through general laws?
'Question 2: If the above be answered in the negative, did appellant succeed to the rights of the Buffalo Bayou, Brazos & Colorado Railway Company by virtue of the special act of 1870, said Buffalo Bayou, Brazos & Colorado Railway Company being restricted by special act of February 11, 1854, to run its line to Austin?
'Question 3: If the laws as to land grants to railroads passed prior to 1869 were repealed by the constitution of this year, can appellant interpose and maintain in this suit the equitable defense that if the certificates issued for that portion of the road between the Colorado and Guadalupe rivers from 1870 to 1876 were illegally obtained, that the state is in no position to ask relief sought, by reason of the fact that appellant has earned certificates for said 163 miles of road?
'Question 4: If the last question be affirmatively answered, would the fact that, at the time the land for the 163 miles west of San Antonio was earned by appellant, the public lands were exhausted, affect the equities of the case?'
The supreme court was of opinion 'that the Galveston, Harrisburg & San Antonio Railway Company did not, by virtue of the act of July 27, 1870, acquire the right to earn lands by the construction of its line to San Antonio.' This answered the second question, and rendered an answer to the first unnecessary.
As to the third question, the supreme court was 'of the opinion that it is no defense to an action of the state for the recovery of the lands involved in this suit that the company may have been entitled to certificates for the one hundred and sixty-three miles of additional road constructed under the law of 1876.' The fourth question, therefore, required no answer.
The case is reported.-89 Tex. 340, 34 S. W. 746.