Giles v. Basore

¶1I concur in all that the, opinion of the Court determines but my concurrence, in the holding that the Chambers grant is valid is based solely upon the considered pronouncement by the Supreme Court in the Balli case [144 Tex. 195, 190 S.W.2d 92] that the Act of March 26, 1834 “amounted to an absolute termination of the State’s consent to the federal restriction” requiring prior approval of the supreme federal executive of Mexico to grants with in the prohibited area. Whether, strictly speaking such statement of the law was required for a decision of that case I do not ponder because I believe that an intermediate, court, such as ours, should follow clear and considered statements of law made by the Supreme Court.

¶2With respect to’ the Validity- of the Chambers Grant appellants in addition to their, assertion that what the Supreme Court in Balli had to say regarding the Act of March 26, 1834, was dictum contend that in any event such Act is of no importance here’ because it was repealed by the Act of May 2, 1834, four months before the Chambers Grant was issued.

¶3This latter Act provided:

“The laws in respect to alienation of vacant lands are hereby dispensed with, to enable the executive, in the manner and on the terms he shall consider advantageous to the state to negotiate with the national executive, those of which he may stand in need.” 1

¶4From authentic historical data contained in appellees’ brief, particularly in Appendix E, the conclusion is inescapable, to me, that the Act of May 2, 1834, repealed the Act of March 26, 1834, only insofar as it related to the extent that the State of Coahuila and Texas might deal with the National Government in the sale of vacant lands.

¶5If however, appellants ape correct in contending otherwise then this situation is presented:

¶61. Prior to March 26, 1834, consent of the Supreme Federal Executive was’necessary to the validity of sales of vacant lands within the 10 and 20 leagues (conceded by all).

¶72. This requirement was repealed by the Act of March 26, 1834, (Balli Case). .

¶83. The repealing Act of March 26, 1834, was itself repealed by the Act of May 2, 1834. (Appellants’ contention.)

¶9*934Upon this state of affairs the question arises as to whether the repeal of a repealing’ Act has the effect of reviving the Act originally repealed.

¶10At Common Law the repeal of a repealing statute revived the former law. 39 Tex. Jur. p. 154. Such rule of the Common Law was abolished by statute in Texas in 1840. Subd. 7, art. 10, Vernon’s Ann.Civ.St.

¶11In the absence of pleading and proof we must assume that the law of a foreign country is the same as ours. 17 Tex. Jur. p. 297.

¶12Applying the above principles to the facts as appellants contend them to be the necessary consequence is that the Act of May 2, 1834, did not revive the requirement that Federal consent to sales of vacant land within the prohibited area be obtained.

¶13I concur in overruling appellants’ Motion for Rehearing.