The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1889-06-13

| ana mas recelVeu patents therefor and ap-
propriated said lands to its exclusive use,
and denies the right of the state and the
public school fund to any interest in the
| same.
| Defendant interposes a plea of not
guilty and general denial.
The case is submitted upon an agreed
statement of facts, already cond, nsed to
the scope of conclusions of facts, aud it
is hereby adopted as such and attached
hereto.
The chief question Involved in the case is
the proper construction of section 2, arti-
Gle Z, of the Constitution, which reads
thus: "All funds, lands and other prop
erty heretofore set apart and sppropri-
ated for the support of public schools; all
the alternate sections of land reserved by
the state out of the grants heretofore
made or that may hereafter be made to
railroads or other corporations of any ma
ture whatsoever; one. baif of the public
domain of the state, and all sums of
money that may come to the state from
the sale of any portion of the same, shall
constitute perpetual public school fund"
| The evidence shows that when the Con-
sti ution went into force there wsre H.
96l, 277 acres of unappropriated public
domain belonging to the state.
Other provisions of the Constitution ap-
propriated 100000 acres to build state
capitol and 100000 acres to the State
University, leaving $780,, PIT acres.
This suit is based upon the theory that
section 2, article Z, is as to vesting title
self-executing, and at the same time of it's
adoption it appropriated ard set apart to
| the school fuLd an undivided one-ha!f of
said 6G96l ,277 acres, as well AS the alter
nate sections Reserved by the state out of
grants to railroads and other corpora
tlons; and that until parti ion is had al d
the school funds moiety segregated no
| part thereof can be granted by either leg
| 1slatlve or executive action, so as to divest
the school fund of its interest therein.
On the contrary, it is cOntended by the
| defendant that said section, property con-
| strued, means that the state was expected
to continue its long established policy of
encouraging internal improvements by
granting lands to aid In the construction
OF railroads, and that each alte rnate sec
ton surveyed by railroads in locating
their lands should, as before, go to the
school fund, and that if the state should
change its policy of granting lands for
the encouragement of such improve
ments before the entire public domain
was exhausted, then the school fund
should have one-half of the remainder,
thereby securing to that fund absolutely
one-half of the public domain, that was |
appropriated when the Constitution
was adopted.
The question narrows down to a deter |
mination of the meaning of the terms
Public domain" as used in the Constitu- |
ton. Counsel for both parties have in
voked, as authority, The case of Day Land |
and Cattle Company vsthe State,8S Texas,
526.
By an act approved February 25, 1879,
the legislature had appropriated one
half Of the unappropriated public do
main in Greer county to the school fund
and the other half for the payment of the
state debt.
The act of March, Is, 1881, granting
land certificates to the surviving soldiers
Of the Texas revolution, authorized their
location upon "any public domain" aud,
having been LOCATED and patented upon
lands In Greer county, the attorney gen
eIal brought that suit for the state to re-
cover the lands and cancel the patents,
and obtained judgment to that effect,
nhiSu, VI appear, WAS am med.
10 discussing the power of the legisla- {
lure 10 appropriate the lands in Greer
county, as was done by the act of Febru- |
Try 20, 1879, the supreme court uses this i
language: 6
"The Constitution appropriated one c
lslf of the public domain ungppropri- t
'ted at the time it vas adopted for the 6
upport at public schools, and, In add /
ion to this, made other appropriations T
or the same purpose" (Const, Art. Z, g
Sec. 2)
"In so far as the act in question appro- q
'rlated one-half of the Incorporated {
al in Greer county to this purpose, i5 f
'nly carries into effect, in the particular {
erritory, the mandate of the Constitu. f
ion."
And in discussing the meaning of the '
he words public d. MAN," the court Z
avs: "We are of the opinion that the f
words ANY of the public domain as used 9
n the act, mean the same as 'unsppropri- t
ted public domain Such is the sense in '
which these words are used in the Oonsti- 9
utlon and laws, although in some in
stances the words 'unappropriated' or va 9
,ant' are used in connection with them, as |
viii be seen by reference to their use. L
Section 2, article Z, OF the Constitution,
Alter declaring that all the alternate sec
ions of land reserved by the state out of
grants he retofore made or hereafter to be
made to railroads or other corporations
Of any nature Whatever shell constitute
a perpetual school fund, provides that
one-half of the public domain of the
state, among the other funds named, shall
constitute perpetual school fund.-
"The alternate sections set apart to that
fund were, in general sense, public do
main, but it WAS not thought that these
lands would be embraced under the gen
eral terms, public DOMAINE; hence they
were specifically appropriated, as they had
been by former laws, and an additionally
grant was made to the fund of 'one-haif of |
the public domain of the state The
words public domain as here used meant
simply that one half of the public domain
then uuappropristed to some use by the
Constitution or some precedent obligation
should be so appropriated"
There can, it seems to me, be no doubt
that the first of these quotations amply
sustains the attorney generals position.
It states in express and ambiguous Ian
euage that the Constitution app opriated
for school purposes one-half of the public