Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 483
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1875.] MILLER AND BURNETT V. HAYS. 483
Argument for the appellee.
that it is competent for the State to enforce such a rule at
any time before she has actually consummated the grant
by the issuance of the patent. (See Fowler v. Allred, 24
We cannot believe the counsel for appellant are serious in
asserting the unconstitutionality and illegality of the preemption
law of 1866, for the reasons.they assign.
The Act was passed by the Legislature of Texas, chosen by
her duly and legally qualified electors, according to the forms
of law, and the laws of her own people, and was a partial disposition
of her public domain in the mode that was deemed by
the State to be best calculated to subserve the public weal;
and the forcible interference therewith by the Federal military,
under the color of laws whose friends and advocates were
never willing to have duly tested by judicial opinion and investigation,
would, we think, utterly fail to divest the appellee
of his rights duly acquired by his settlement, and application
to have surveyed to him his homestead.
Tlhe Constitution of the State whose provisions are invoked,
as well as the amendment to the Federal Constitution were put
into existence long after the appellee had acquired his right
under the Act of 1866, and can have no sort of application to
the questions of this case.
As for what is said by appellant of the aches and negligence
of appellee, we can only reply that his application was made in
due time; the surveyor who refused to comply with his request
to survey was removed from office before appellee had time to
file suit, and soon after the military appointed took charge of
the office, an order from the commanding general was issued
forbidding any proceedings under this Act. The courts then in
existence were but appendages of military power, and knew
only how to obey orders, but as soon as the military was withdrawn,
the appellee asserts his rights by suit. We submit that
no right was forfeited, and that the continued residence upon
the land by appellee, with his application duly made, was
notice to the world that he claimed the land as preemptor.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/491/: accessed April 22, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .