The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1888-06-28
THE LEASE LAW.
The Acts of the Irrepressible. Land
Board Illegal,
But the Innocent Cattlemen Must
Stand to Their Contracts Re-
gardless of the Ille-
gal Acts.

ion of Chief ustice Stayton in the suit by
the state on lease contracts made by the
state to M. l.. Swissen by the land board,
under the act of April u, 1883, and ap-
pealed from Travis county:
The leases were for six years, and the
contract prices were 20, and cents per
acre. There was judgment below for The
state, and the Questions presented are:
First-The constitutionality of that pro
vision of the statute providing for the
leasing of the the common school lands.
Second-The want of power in the legis-
lature,u under the constitution, to make the
officers of the executive department a lard
board and to delegate legislative power to
such board.
Third-That such board arbitrarily es-
tab!ished regulations not authorized by
the act.
The court say: 1t is unnecessary to
enter into any critical examination of the
true relation of the state-the people to
the common school lands, in order to IL
lustrate the fact that the relation imposed
by section 3, article Z, of the constitution
is not that of trustee seized of lands for
the use of another with a naked power of
sale added. Analogies drawn from such q
relation have but little if any application
to the question before us; for such a
trustee has no power other than such as
the instrument under which he holds
AMI is empowered to sell gives.
Such an instrument creates all the
right and gives all the power such trus-
tee has, and it must be looked to to de-
termiue the extent of this power and the
manner in which it must be exercised.
Not so with the state-ths people-in re
lation to the common school lands, which
belong TO the stats as fully as did they be-
fore they we're appropriated to the public
purpose declared by the constitution. The
purpose for which they are to be used is
declared by that section, and if there were
no other affecting the question before ue,
there can be no question that people,
through the legislature, might lease the
lands for any period of time in order to
raise funds for school purposes.
The purpose of a state constitution is
not to confer power upon the people
which may be exercised through the legis
lature, but is to place limitations which
the people desire to impose upon the
exercise of power by the Legislature and
other departments of the government
The limitations found in the sections re-
lSIEcu W COuSl5IS Ill HlVhhldmdl llOh
the legislature of the power to appropriate
the property therein declared to consti-
tute perpetual school fund to any other
purpose.
II is insisted, however, that section 4,
article Z, provides the only mode in which
such lands may be utilized. That it re-
quires the lands to be sold and forbids
the legislature TO lease them under any
circumstances. If such intention is
clearly manifested by the language used
effect must be given to it.
The direction in the constitution that
the lands shall be sold is doubtless man
datory, and leaves no discretion in the
legislature as to the mode in which the
lands shall be ultimately utilized. The
section referred to, however, left it to be
determined by the legislature a. what
time and on what terms and and under
what regulations the sales should be made
These powers were necessarily discre-
tionary.
That the people did not intend that the
lands should be utilized by system of
leasing for long or indefinite period
would seem manifest, for if this might be
done ore legislature might authorize
leases to be made which would deprive
succeeding legislature of the power to sell
the lands. 1t may be conceded that it
was not intended by the people, when they
adopted the constitution, that any leases
should be made without reservation
of the right to sell, even for
fixed and short periods, whereby any i'm
pediment to sales would be created; for it
must have been intended that every legis-
lature should have the power to determine
whether the time had come to place the
lands upon the market, and If SO de-
termined at once SO to place them.
1t has been the settled policy of this
state to encourage actual settlement, and
if leases of large bodies of school lands
could be legally made for fixed and even
short periods, the tendency of this would
be to hinder the sale of such lands, during
the lease, to actual settlers.
Referring to the proposition made and
voted down in the constitutional conVen-
ton to provide for lease system, the
court say: The proceedings of a con-
stitutional convention may be looked to
in constructing clause OF the constltu-
ton framed by it when it Is OF doubtful
construction, but such evidence Is OF little
weight, for the intention of the trainers
of constitution is of but little impor-
lance, the real question being what did
the people intend by adopting a consti-
tuition framed in language submitted to
them. If, however, the people had been
fully cognizant of what occurred in
the convention, or in any way
had directly acted in rejecting the substi-
tute offered, it, at most, would but show
that the people were unwilling to give the
legislature the power, so long as the pres
ent constitution remains in force, to re-
fuse to sell the lands and adopt lease
system, whereby millions of acres might
be held by tenantry under leases made
by application of one legislature, not
withstanding the Judgment of succeeding
legislatures might be that the time had
arrived when the interests of the state re-
quired the lands to be sold. In no state
has private ownership of land and
occupancy by the owner received
more encourag ement than in this. This
policy has been fostered by donations and
preferences on sale in favor of actual set
tiers, and the provision now IN the consti-
tuition may have been adopted with view
to perpetuate this policy, That system
such as proposed was rejected does not
tend to show that the people intended to
prohibit the lease of school lands until
suah 10 md fnr