The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1881-06-09
Important Opinion by the Attosney, General
The following important opinion cfthe
Attorney-G eneral will be found of, moro
than usuaIinterest: ~ IA .-11h

Inan uSuallntereSl: M --JJii
ATTORNEY GENERALS OFFICE, r
AUSTIN. TEXAS, May 81, 1881.
Hon. wm. c. Walsh, commissfonerof General
SIR-Your favor of recent date asking
me for an official opiniUnou the cohstrue-
tion of section 2, OF article II of the con-
stitution. is before me, and in reply il
would submit the followifg::' l'- -
The section of the constitution, reads
as follows:
Section 2-Ail unsatisfied general lanl
certificates barred by section 4, article 10
of the constitution oflS69,by reason ofthe
holders or owners thereof failing to have
them surveyed and returned to the Land
Office by the first day of January, 1915,
are hereby revived. All uusatistied gem
uine land certificates now in existence
shall be surveyed and returned to the
General Land Office within five years
after the adoption of this Constitution, or
be forever barred; and all genuine land
certificates hereafter issued by the state
shall be surveyed and returned TO the
General Land Office within five years
after Issuance or be forever barred. y
From this section of the constitution
we see that similar provision existed in
the constitution of 1869, which is directly
referred to in the text. The time limited
for all certificates in existence at that
date to be surveyed and returned to the
Land Office was January LIST, 1915. So. the
time had already expired for many certi-
ficates, in fact all issued prior to the Both
of March, 1870, the date when the consti-
tuition of 1869 took effect, to be located
and, surveyed, and they were already
barred on the 18th of April, 1876, when
| the present constitution was adopted.
BY force of the section under considera-
ton, those certificates issued prior to
March Both, 1870, and still not surveyed
| and returned, were revived and put on
precisely the same footing with those
| Issued between March Both, 1879, and
April 18th, 1876, when the present consti-
tuition was adopted.
Many of these certificates had been in
| existence for thirty or forty years and had
never been surveyed or returned to the
General Land Office, but were being
bought and sold as common articles of
traffic and speculation. Others had been
located in part only and INDICATED bal
ances issued for the portions not located.
Others had been surveyed and field notes
returned for the whole and the same
passed as correct for Patenting and in
some cases patents issued, when con-
fliet may have been discovered, and It
found necessary to correct the survey and
patent only for the portion not in conflict.
On all these phases questions have arisen
and are presented to you. Then first as to
INDICATED balances. 1t is clear that such
| INDICATED balances are not new certitl-
Gates but only portions of the original
certificate remaining over after the par
tial location made thereon. L am informed
that in early times it was the GUS
tom of the Land Office to issue patents
| on portions of certificate, in case
| there was no vacant land contiguous to
the location, and to endorse on the lcerti-
| ficate the number of acres patented and
to reissue the certificate thus endorsed.
| This for many reasons became inconyen-
| lent and productive of much confusion.
To remedy this, the, custom was inaugu-
| rated of issuing INDICATED. balances apd
| afterwards on the third day of Februaty,
| 1854, this custom was enacted into law
| and has since been on the. statute books.
| (Rev. Stat, Art 3S89.)
But inasmuch as the certificate of an
Indicated balance by its very terms refers
| to the original certificate, and derives all
its force andYitality from thatinstrument
and could not exist without it, / cannot
regard it as anything else than part and
parcel of the original, and of course sub
| feet to all its incidents and the laws and
! regulations applicable to the same. And
| besides, to regard these INDICATED balan-
ces as Independent certificates, within the
provision of this section OF the coDstttu-
ton, would lead us into many serious
| incopveniences, not, to say absurdltles,
and virtually nullify the law itself, which
| thepeople have regarded as of sufficient
| Importance to, make it orgapie.l.fp .,4s
| If every time an INDICATED balance was
issued it took a new lease OF life for i've
years, it might be a score or more OF years
| before it would be entirely barred. In
| view of the time which has been hereto
| fore given in which to survey and return
| these certificates, and the renewal
| granted by the present constitution, it il
not a violent, but quite natural, pre-
sumption that the people intended thai
| the INDICATED balances should share the
| same fate as the original certificates oi
which they form part.
A land certificate is merely the obliga-
| ton of the government emitting the
owner of it to secure the designated
| quantity of land by following the re.
/ quirements of the law. (Cox v. Broy =
| Texas, 261. The paper instrument it
self might more properly, perhaps, be des'
| ignated as the evidence of the states
| obligation and the holders right, and the
mere fact that this obligation has beeh
| partly discharged and new paper
| issued showing the obligation on the one
part and the. right on the other still TO
| exist, as to q portion of the Original
| claim, does not create any new right OF
1 obligation, nor! extend the time within
which the holder must select the quanti-
| ty of land to.which he is entitled. y
i But parties who have had their surveys
/ made and Held notes returned forthe full
amount of their certificates. and after
wards conflict has been discovered, J, SO
| late that there Is scarcely time for new
survey to bemade and field notes return
4 ed within the time limited by the consti-
4 kution, are apt to complain that a great
1 hardship is imposed on them in not al
| lowing them to locate the balance re-
maining INDICATED of the certificate sc
| returned. Let such parties remember
| that, they had from five to forty years in
| which TO select the land allowed them By
| the state, snd that they well knew thai
| they were ,EOt allowed to locate theil
| claims on any but vacant and unapproprt
ated public domRin of the State of Texas
| and il they hayeiR their anxiety to secure
good lands treuched on their neighbors Of
| others Who'haYe beef more diligent thar
| they, the State of Texas is not to blams
| for their delay, negligence or folly. aA1
statutes OF limitations are apt to worl
| hardships in particular cases, but this fac
should not and does not prevent their EN-
forcement in the courts because the gen
erai benefit resulting therefrom more thar
oyerbalances individual hardships
While do not regard this provision al
unjust, in view OF the nberallty or tht
| state in the disposition of its lands, ant
| the long time given in which to make thu
| selection, still were it palpably unjus
this alone would. not be sufficient war
rant for the officers to disregard 1t %
| construe it away. Cooley, Con. Lin. 8
| sS). But should your fifth question be an
swered in the affirmative, it snpercedes
the necessity of replying to The others
/ The fifth lnterrogatory .propounded bl
NDo you understand the above quOteC
clause off the constitution as Intended Il
cut off all. certificates in whole or In part
except for so much vacant land as MAJ
| have been embraced in field notes on file
| in this, office with such cernncate OIL
> The primary ruleiin constituting a, con
| stitution is to give effect - the lnIent Q
! the people in adopting the ss.me as Ils
organic law. Cooley Con. Linz, 9ei
I'D. p. 68, ct seg.) -.
The people have twice adopted this
provision, with some notifications in; the
present Instrument; but the particular
clause under consideration J0eetirs lin
substantially the same termsJ in thescOn-
stItution of 1869. (Art. 10.) ll...s
Section +This latter provision has re-
ceiVed Legislative construction by. the
convention which framed the c0nstitu-
tfon of 1876 and in cases like the present
it is allowable to examin8 the Journals
OF that convention. tCooley,, Con- LIN, i
I9n,a resolution, adopted, by that
basis of the provision under con-
sideration, 1t is recited in the
preamble, that certain. certificates had
been, without any fault. or neglect ofthe
owners, located partlyon lands previously
located and had been forfeited by viz
tue of the provision referredtd. Jour. of
Con. Con. of 1916, PIP. 115, 116.) 1t
clearly appears from this that the con-
Vention intended that there should be NO
difference made In favorof those ceYtifi-
Gates nartiallV located even when the con-