Jurisdictional Statement — City of El Paso v. Simmons

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In the

Supreme Court of the United States

No. = 3 sy

Crry OF Eu Paso,

vy. i

GREENBERRY SIMMONS,

JU RISDICT IONAL STATEMENT

for Appeal from the United States

Court of Appeals for the Fifth Circuit

. THORNTON HARDIE,

WILLIAM J. MOUNCE,

of

HarpiE, GRAMBLING, SIMS &

GALATZAN,

Third Floor, El Paso Natural

~Gas Company —

E] Paso, Texas,

Attorneys for ieaiiiens.

WARLICK PRESS. INC.—2263 VALDINA STREET—OALLAS—ME 1-3130.

RE Te

SUBJECT INDEX

A. Opinion Below | ai 1

_ B, Statement of Jurisdiction 1

-C. Statutes Involved | | 3

.D. Question Presented | é 3

E. Statement of the Case . 4

F. Conclusion .~ aoe oe

Appendix es, | A-1

il Manag i Index of Authorities

Aiken v. Kingsbury, 247 U.S. 484

~ City of Chicago v. Atchison, Topeka & Santa Fe

Railway Co., 351 U.S. 77; 78 S. Ct. 1063

Waggoner v. Flack, 188 U.S. 595

” Wilson v. Standifer, 184 U.S. 399

Article 5326 Vernon's Annotated Texas Statutes

"Article 4218f

Senate Bill 295

i

a —— of the United. States

No.

Crry oF Et Paso,

— Appellant,

v.

: GREENBERRY SIMMONS,

. . Appellee.

JURISDICTIONAL STATEMENT

Appellant submits herewith its Jurisdictional Statement

and would respectfully show the Court the following:

A. OPINION BELOW

The decision appealed from is reported in Volume 320

Federal Reports 2d Series, Pages 541-545. A copy of said

’ ‘decision appears in the Appendix, Beginning at page A-1.

+

RB. STATEMENT OF JURISDICTION

Suit was instituted by Appellee, Greenberry Simmons, to

quiet title to two parcels of land located in E] Paso County,

Texas. Federal jurisdiction is based on 28 U.S.C.A. $1332.

The trial court sustained Appellant’s motion for summary

judgment; however, the United States Court of Appeals for

; “

the Fifth Circuit, by decision dated July 18, 1963, reversed

and remanded the case. Appellant's petition for rehearing

was denied by order dated August 99, 1963, and judgment

was entered on the decision of the United States Court of

_ Appeals on September 7, 1963. Notice of Appeal was filed

in the United States Court of Appeals for the Fifth Circuit

- on November 27, 1963. Appellant applied for, and by ordér

dated February 15, 1964, was granted a thirty day exténsion

within which to docket its. appeal and’ file a jurisdictional

statement. This appeal is taken pursuant to 28 U.S.C.A.

$1954 (2). Cf. City of Chicago v. Atchison,. Topeka and

Santa Fe Railway Co., 357 US. 717; 78 S. Ct. 1063 (1958).

¢. STATUTES INVOLVED

| The decision of the United States Court of Appeals for

the Fifth Circuit held that Article 5326 of Vernon's An-.

notated Texas Statutes, quoted below, impaired the obli-

gation of a contract between thé State of Texas and Ap-

pellee’s predecessors contrary to Article I, Section 10 of the

United States Constitution.

Article 5326 provides as follows:

“If any portion of the interest on any sale should

not be paid when due, the land shall be subject. to ©

forfeiture by the Commissioner entering on the wrap-

_ per containing the papers “Land Forfeited,” or words

of similar import, with the date of. such action and

sign it officially, and thereupon the land and all pay-

ments shall be forfeited to the State, ‘and the lands

may be offered for sale on a subsequent sale date. In

any case where lands have heretofore been forfeited

‘or may hereafter be forfeited ‘to the State for non-

as

payment of interest, the purchasers, oF their vendees,

heirs or legal representatives, may have their claims ~

reinstated on their written request by paying into

the Treasury the full amount of interest’ due on such

claim: up to the date of re-instatement, provided. that

no rights of third persons may have intervened. The

right to re-instate shall be limited to the last purchaser). ~

from the State or his vendees or their heirs or legal

representagives. Such right must be exercised within

five (5) years from the date of the forfeiture. In case

there is an outstanding valid grazing lease which -would

prevent re-instatement within the time prescribed by

this Act, then such claim may be reinstated within.

sixty (60) days after the expiration of such grazing

lease, provided application for reinstatement shall have

been filed in the General Land Office within the five-

year period above prescribed, accompanied with pay-

ment of all interest due thereon. In all cases the orig-

inal obligations and penalties shall thereby become as

legal proceedings as may be:necessary to enforce such

forfeiture, or to recover the full amount of the interest

‘and such penalties as may be duc the State at the.

time such forfeiture occurred, or to protect any other

right to such land.”

D. QUESTION PRESENTED

The land purchase contracts upon which Appellee’s claim

is based were forfeited by the State of Texas for non-pay-

ted

4

ment ‘of interest and were not reinstated within ‘the five-

year period required by Article 5326. The five-year limi-

tation feature contained in the statute, however, was

enacted subsequent to the time the land purchase contracts

were entered into. The questjon ‘therefore presented by

“this appeal is whether the application of the five-year

limitation provision of Artic¢le 5326 to Appellee’s land pur-

. chase contracts is repugnant to ‘Article I, Section 10 of

the ‘United States Constitution.

E. STATEMENT OF THE CASE

Appellee’s predecessors entered into purchase agreements

with the State of Texas ir, 1910 (R., 43, 67). The Texas

statute in effect in 1910 provided that a forfeited land

purchase contract could be reinstated by payment of all

back interest, provided that the rights of no third party

had intervened. See: Article 4218f, quoted in the Apperidix

beginning on page A-8. Article 4218f, from which Article

5326 was derived, was ‘amended in 1941, to provide that

the privilege of reinstatement must be exercised ‘within

five years from the date of forfeiture. The land purchase

contracts in question previde essentially that the purchaser

will pay a certain specified sum to the State of Texas ‘and

upon payment in full, the State will issue a patent covering

the land. On J uly 21, 1947, the purchase contracts were

’ forfeited for failure to pay interest. Appellee, via quitciaim

deeds dated June 10, 1952, acquired the vendees’_ right, ,

title and interest in and to the lands in question. Apparent-

ly Appellee in the latter part of J uly, 1952, filed an appli- _ :

* ied

at 5

cation for reinstatement pursuant to Article 5326 a(R. 120,

- 121); however, since the application was not filed within

the five-year period required by Article 5326, it was re- - }

jected. Thereafter, the lands in question were, on Novem-

ber 15, 1955, awarded to Appellant pursuant to Senate

Rill 295, Acts of the 54th Legislature, Ch. 278, 1959, which

Act appears in the Appendix hereof beginning on page A-9.

Appellant paid the full purchase. price and on January 16,

1956, received patents from the State of Texas. On August .

31, 1961, Appellee instituted this action. As stated above,

the trial court awarded Appellant summary judgment, but

the decision was reversed by the United States Court of °

Appeals for the Fifth Circuit. me

This appeal presents a substantial question in consti-

tutional law. The statute which the United States Court of

Appeals struck down has been in effect in the State of Texas

since 1941. Consequently, numerous land titles in Texas

will become questionable if the decision of the Court of

Appeals is permitted to stand. It is. common knowledge

that the State of Texas no longer sells its lands. Therefore,

there is little likelihood that rights of third parties will

intervene in forfeited land purchase contract situations

as contemplated by Article 4218}. The decision of the United

States Court of Appeals permits purchasers in situations

similar to Appellees to sit back aand pay absclutely nothing

- on their purchase contracts, pay no ad valorem taxes, and

wait until the lands have -ncreased in value through some- ~

one else’s effort and then decide whether to reinstate: their

purchases. Since no sales of land are being made, there is

4

6 .

no possibility: of intervening rights and the privilege of re-

instating thereby becomes perpetual. In all probability this.

is the exact reason why the limitation. feature was inserted:

in Article 5326.

The five-year limitation feature of Article 5326 is merely

‘a method: by which the State of Texas rescinds forfeited

land purchase contracts and pertains only to the State’s

remedy in case of default. This Court has had occasion

to determine the obligation imposed ‘in a State of Texas

land purchase contract identical to the one under which

Appellee is claiming. Wilson v. Standifer, 184 U.S.’ 399

(1902); and Waggoner v. Flack, 188 U.S. 595 (1903). The —

cases referred to are explicit insofar as the obligations

imposed by a State of Texas land purchase contract are

-concerned. They state without qualification that the pur-

chaser’s obligation is to- pay the purchase price and that

the State’s obligation is to issue a patent whenever the

_putchaser’s obligation has been performed. These cases are

equally explicit in stating that the remedy or means by -

which the State ‘enforces or terminates the contract may,

within the limits prescribed by the Constitution, be modified

from time to time. | |

Another case in: point «« that of Aikin v. Kingsbury, 247

U.S. 484 (1918). The Kingsbury case involved a land pur-

chase contract situation similar to Appellee’s and this Court

stated at page 487:

wThe right of the State to foreclose such @ contract

for default in payment, and the right of the purchaser

to redeem after a default decree relate to the remedy

7:

as seis 3 from the giligation of the con-

oa“*.. =

| fe F. C ONCLUSION

Based on the ‘foregoing, Appellant respectfully. ain

that the Honorable Supreme Court should allow this appeal.

_ Respectfully submitted ©

Harvie, GRAMBLING, Sims &

GALATZAN,

Third Floor, El] Paso Natural

Gas Company Building,

El.Pase, Texas,

By .

Attorneys for Appellant.

t

..

PROOF OF SERVICE

I, William J. Mounce of Hardie, Grambling, Sims &

Galatzan, attorneys of record for the City of El Paso, Ap-

lant herein, depose and say that on the a da

February, 1964, I served a copy of the foregoing Juris-

dictional Statement ‘for Appeal From the United States

‘ Court of Appeals for the Fifth Circuit on Greenberry Sim-

mons, Appellee herein, by mailing, air mail postage prepaid,

‘a copy of same, to Mr. Greenberry Simmons, Attorney at

Law, Kentucky Home Life Building, Louisville, Kentucky

and by mailing a copy of said Jurisdictianal ‘Statement to

Mr. Harold Long, Attorney at Law, El Paso National Bank

Building, El Paso, Texas, attorney for Greenberry Simmons. _

Ww m J. MouNcE

‘ SUBSCRIBED AND SWORN TO before me at El Paso,

Texas, this ay day of February, 1964.

— Ahette’ shee

Notary Public, El Paso County, Texas

@

A-l

‘ APPENDIX

In the

United ‘States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 19754

GREENBERRY SIMMONS, e |

Appellant,

U.

Crry oF Ex Paso,

Appellee.

Appeal from the United States District Court for the |

Western District of Texas. ~

a

“(July 18, 1963)

‘Before RIVES, JONES and BROWN, Circuit Judges. |

J ONES, Circuit Judge: Federal jurisdiction in this action

was asserted on diversity of citizenship and under’ 28

U.S.C.A. $1655. It is difficult to seé how Section 1655 has

anything to do with jurisdiction in this case but since di

versity of citizenship and the jurisdictional amount of a

matter in controversy are present, the question need not _

be considered. :

7%

Predecessors of title of the appellant, Greenberry Sim-

-mons, on January 25, 1910, made written applications to

purchase land in El Paso County, Texas; from the State

of Texas, reciting in. the applications that they were made

“under the provisions of Chapter 47, Act of 1895, Chapter

129, Act of May 19, 1897, and other Texas statutes.” The

.obligations of the applicants, who became purchasers of the

lands, required the annual payment of one-fortieth of the

principal and interest at three per cent. The obligations,

accepted by the Texas Land Commissioner, recited the pur- —

‘chase of the described land “in accordance with the pro-

visions of” the foregoing statutes of Texas. |

The 1897 statute to which reference was made in the

title instruments contained a provision that,

“In any cases where lands have been forfeited to

the State for the non-payment of. interest, the pur-

chasers or their vendees may have their claims rein-

stated on their written. request, by paying into the

treasury the full amount of interest due on such

claim up to the date of ‘reinstatement; provided, that

no rights of third persons may have intervened. In

all such cases the -original obligations and penalties

shall thereby become as binding as if no forfeiture

had ever occurred.” Texas Act, 1897, Ch,.197. +

In 1941, the Texas Legislature reaffirmed the right to

reinstate a contract of purchase after a forfeiture but im-

posed a five-year limitation period upon the exercise of the

right with respect to forfeitures thereafter occurring. In

the act it was provided: Nee |

“In any case where lands may hereafter be forfeited’

to the State for non-payment of interest, the pur-

A-3

chasers, or their vendees, heirs, or legal representatives,

may have their claims reinstated on their written

may have intervened. The right to reinstate shall be

limited to the last purchaser from. the State or his

vendees or their heirs or legal representatives. Such

right must be exercised within five (5) years from

=the date of ‘the forfeiture, and the right to reinstate any

- claim heretofore forfeited by the Commissioner must

be exercised within five (5) years from the effective.

date of this Act, but not thereafter.” Texas Acts 1941,

Ch. 191. :

In 1951 this statute was amended but not, apparently, in

any particular which is ‘here pertinent. Texas Acts 1951,

Ch. 59. — :

On July 21, 1947, the land was forfeited to the State

“for non-payment of interest. On July 23, 1952, the land

Commissioner of. the State of Texas received from the

appellant, who was the mesne grantee of the original pur-

chasers, applications to reinstate the claims to the lands,

with checks for the unpaid interest. On July 24, 1952, the ©

#Land Commissioner returned the applications and checks

to the appellant with a letter in which it was said:

“Witk reference to the reinstatement. of forfeited

accounts as set out under the provisions of Article

5326, Revised Civil Statutes, in: order to reinstate

a forfeited account, the forfeiting owner, his heirs or

assigns, must exercise such right within five years from

the date of/ forfeiture. To exercise suc rights the

application .to reinstate and also payment of. all in-

terest and penalty must be received in the five year

period. .

v

A-4

“fn considering this matter, our attorneys have de-

cided to reject the applications to reinstate the above

described lands and the applications were not received

until July 23. Due to this fact, your applications are

being returned ‘together with your two payments re

ceived dn July 23.” Ag

On Mav 23, 1955, the Texas Legislature authorized the

sale to the City of El Paso of fourteen thousand acres of

land in El Paso County, including the lands‘claimed’ by

the appellant. The lands were patented to the appellee City

on January -26, 1956. Another stasate of the, State of Texas, ©

enacted in 1924, contained a provision that “No, sale made

without condition of settlement shall be questioned by the

State or any person after one year from the date of such

sale.” Vernon’s Ann. Tex. Stat. Art.. 5329. The appellant

brought an action in the nature of trespass to try title on

August 31, 1961. The City asserted by defenses, the’ limi-

tation of the 1941 and 1951 statutes, the bar of Article

5399, adverse possession, and that intervening rights and |

lapse of time had resulted in the appellant’s claim being —

barred by laches. Both parties filed motions for summary

judgment. The motion of the defendant ‘was granted and ©

judgment was entered that the appellant take nothing.

From that judgment this appeal has been taken. _

Although other issues are made by the claim asserted

in the complaint and. the defense set out “in the answer,

only two of these require present consideration. First, we

must decide whether Article 5329 cut off the right of thes

appellant to question the validity of the sale to the City

of El Paso. If: this statute does not bar the appellant,

A-5 ’

then we must ascertain ‘whether the statutes ‘of 1941 and

1951 work an impairment of the obligation of the contract

of purchase with the result that the tender of the. delinquent __ |

payments before any intervening rights arose reinstated

the contract. As to the first of these questions, it would -

seem that if the ‘application for reinstatement and tender

of the delinquent interest made by the’ appellant were

valid and effective so as to restore the rights which had

been forfeited, the sale to the City of El Paso would have

been illegally made and void. Statutes relieving from for- ;

feiture are to be liberally construed in favor of the owner.

The one-year limitation provisions would not be applicable

if-a reinstatement had been effected before the subsequent

attempt to sell. Davis v. Yates, 63 Tex. Civ. App. 6, 133 S.W.

281. Se also Lovett v. Simmons, Tex. Comm. App. 29 S.W.

2d 1021; Herndon vu, Robinson, Tex. Comm. App. 114 Tex.

446, 270 S.W. 159. We are then required to determine the

~ gecond question.

It is said that “The books disclose numerous disputes

which have arisen where land (in Texas), having been

awarded to one person, thereatter was forfeited and awarded

‘to another, the claim of the earlier purchaser depending

upon the showirig as to whether he was entitled to be ‘re

instated to his rights under his contract of purchase.” 34

Tex. Jur. 190, Public Lands $129. The contract between .

the appellant’s predecessor in title and the State was made

pursuant to the statute, and the provisions of the statute

‘became terms of the contract. Indiana ex rel Anderson v.

Brand, 303 U.S. 95, 58 S. Ct. 433, 82 L. Ee. 685, 113 A.LR.

A-6 — we es ee

ee

_—_——_—

1482, reh. den. 303 U.S. 667, 58 S. Ct. 641, g2 L. Ed. 1123.

See also Dodge v. Board. of Education, 302 U.S. 74,.58 S. Ct.

98, 82 L. Ed. 57; Hall v. Wisconsin, 103 U.S. 5, 26 L. Ed.

The United States Constitution provides that “No state

shall ‘ * * pass * bs * any law impairing the obligation of

contracts.” U.S. Const.,-Art. I, Sec. 10. A Court of Civil

Appeals of Texas has held that this constitutional provision

“is violated whenever there is any’ invasion of the effect

of the asserted contract in however small a particular, and

it is not required that the contract be entirely or even |

materially impinged upon.” Simpson v. Pontotoc Common

County Line School District, Tex. Civ. App. 275 S.W. 449.

It is the obligation of the contract that is not to be

impaired. A statute which merely changes the remedy does

not, as a general rule, impair the obligation. Aikens v. Kings-

bury, 247 U.S. 484, 38 S. Ct. 558, 62 L. Ed. 1226. Statutes

of limitation ‘refer to the remedy and not to the obligation

of a contract and hence do not fall within the constitutional

inhibition of statutes impairing the obligation of contracts.

= Sturges v. Crowinshield, 4 Wheat. 122; 4 L. Ed, 529. The

statutory provision, forming a part of the contract, gave

" to the contract purchaser a right to reinstate his contract

at-any time before the rights of third persons intervened.

This right of reinstatement was in the nature of a con-

tinuing option which the State could terminate only by .

the creation of a right in another. A Texas Court of Civil

Appeals has declared that, “It is our duty to construe these

laws so as to‘alleviate against the. rigors of forfeiture, for

A-7

the law abhors a forfeiture.” State v. Waldén, Tex. Civ.

App. 325 S.W.'2d 705. See also Gulf Production Co. v. State,

Tex. Civ. App. 231,S.W. 124. ¥

In construing ‘the statutory language providing for re- .

instatement after forfeiture, it was held in the case last cited

that the statute was.embraced in the contract when it was |

entered into, ahd neither the state nor the purchaser could

arbitrarily and without the consent of the other write into

the contract any provision or condition varying, restricting

or enlarging the terms of the contract; and, the payment of ,

the delinquent interest before the jntervention of ‘rights’

of a third party being the only condition to reinstatement,

“the state could not impose a different or additional con-

| dition. 231 S.W. 124, 131. The right of reinstatement is a

vested right which is entitled to protection of constitutional

guarantees. See Anderson v. Neighbors, 94 Tex. 236. 59 S.W.

543. The statute, in force when’ the purchase was made,

which gave to the purchaser a right to redeem from for-

feiture, was not one dealing with a remedy, but on the

contrary created an obligation of the siate to reinstate the

contract if payment was made before the intervention of the .

rights of others. The state could not impair this right, as it:

| attempted to do by the 1941 and 1951 Acts. Cf. Home In-

surance Co. v. Dick, 281 U.S. 397, 50 S. Ct. 338, 74 L. Ed.

926, 74 A.L.R. 701. The tender made by the appellant.

assuming it has been or will be kept good, reinstated the

“contract. . : |

The district court did not consider the defenses of adverse

possession and laches. If sustained by the preponderance

Q-

AS

of evidence one or more of these defenses might defeat

the appellant’s claim. Therefore a remand is required for

the trial of these issues. .

REVERSED AND REMANDED.

Article 4218f. When any portion of said land has been .

classified to the satisfaction of the commissioner of the

general land office, under the provisions of this chapter or

former laws, such lands shal] be subject to sale, but to actual

settlers only, except where otherwise provided by law, and

in quantities of not less than eighty acres Or multiples there-

of, nor ‘more than four sections containing six hundred -

and forty acres, more Or less; provided, that the purchaser

shall “not include in his purchase more than two sections of

agricultural land: and provided, that where there is a frac-

tion less than eighty acres of any section left unsold, such

fraction may be sold. Any bona fide purchaser who has

heretofore purchased or who may hereafter purchase any

lands as provided herein shall have the right to purchase .

other lands in addition thereto; provided, that the total

of his purchases shall not exceed four sections and that it .

shall not include more than two sections of agricultural

‘land, upon his making oath that he is not acting in collusion |

with others for the purpose of buying the land for any other

person or corporation, and that no other person or corpo-

ration is interested.in the purchase thereof. And if he or his

' yendor has already resided upon his home section for three

years, or when he or his vendor, or both together, shall have

~~

A-9

resided upon it for three years, the additional lands pur-

chased may be patented at any time. In all cases where a

settler purchases more than one section the lands in. ex-

cess of one section so purchased must be situated within

-a radius of five miles“of the tand occupied by him. Where -

any of the lands: referred to in this act have been sold.

prior to July 30th, 1895, in quantities greater or less than

forty acres Or multiples thereof, and are in good standing

as to interest payments, they may be patented in such

quantities. In any cases where lands have been forfeited

to the State for non-payment. of interest, the purchasers

--or their vendees may have their claims reinstated on their

written request, by paying into the treasury the full amount

of interest due on such claim up to the date of reinstate-

“ment; provided, that no rights of third, persons may have

intervened. In all such cases the original obligations and

“penalties shall thereby become as binding as if no forfeiture

had ever occurred.. .

~ Senate Bill 295, Acts of the 54th Legislature, Chapter

278, 1955.

Section 1. The Commissioner of the General Land Office

.< hereby authorized to sell to the City of El Paso, El Paso

‘County, Texas, for a total consideration based on the aggre- |

gate fair and reasonable market value of said lend, but no |

less than $6.50 per acre, as determined by two appraisers

appointed by the Commissioner of the General Land Office

a0

of Texas, the following described’ Public School Lands

situated in E] Paso County, and described as follows, to-wit:

(AMONG OTHER LANDS)

N\, of Section 240 .

N. D. Mundy Survey .

Containing 328.65 acres ;

Section 235 |

L. E. Mundy Survey "

Containing 292 acres

and aggregating 14,000.15 acres. Said lands shall ‘be sold

upon the filing in the General Land Office of an application

to purchase by the proper authority of the City of El Paso

accompanied by payment of the full consideration herein

provided. Such sale shall be subject tq any rigiit-of-way ease-

ments, surface leases, or any oil, gas miners leases or per-

“mits theretofore given by the State on said lands. All Mines —

and minerals and mineral rights, including oil and gas in and

under said lands, together with the right to enter thereon

for the purpose of exploration and development, are hereby

reserved to the State of Texas, and said lands shall be. sub-

ject to lease by the State for mineral exploration and develop-

ment in the same manner as is now, or may hereafter be rro-

vided for the leasing ‘of unsold Public Free School Lands;

provided, however, that the School Land Board or other

legally constituted authority 0 offering said lands for lease .

‘shall place in said leases such rules and regulations as may

be deemed proper by said beard or agency for the pre-

vention of pollution and contamination of the fresh waters

in, on-and under said. lands.

; en

™”

: A-l1

Section 0. Upon payment of the purchase money pro-

vided herein, payments of fees required by law, and the

filing in the General Land Office of any field notes or cor-

rected field notes required by the Commissioner of the

General Land Office, patents shall be issued to the City of

El Paso containing the reservations provided for in Section.

1 of this Act.

Section 3. The fact that the City of El Paso is in urgent

need of expanding its sources of water and ‘of protecting

water wells previously drilled creates an emergency and an

imperative public necessity that the Constitutional Rule

that each bill be read on three separate days in each House

be suspended, and such Rule is hereby suspended, and this

~ Act -shall take effect from and after its passage, and it is

so enacted.