The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1889-05-16
BIG LAND SUIT.
The State VS.. The Galveston, Har-
rlsburg and San Antonio
Railway Company.
A Suit for Forty Sections of Land.
A Test Case-The Argu-
ment Concluded.

lH6 III INC Dlk lhuu case VI
the State of Texas vs. the Galveston, Hsr-
risburg and San Antonio Railway com
pany was concluded yesterday in the dis
trict court by Attorney-general Hogg.
The following is the attorney-general's
argument i'll the case:
Does one-half the public domain belong
to the perpetual public free school fund,
as we'll as each alternate section of land
granted to railways!
A careful analysis of the provisions of
the various constitutions of this state
upon the subject of the public schools
and their endowments, will lead to the in
evitable conclusion that it was the IN
equivocal intention of the people in
adopting the Constitution of 1876 to de6i-
cate and set apart, absolutely and uncon-
ditionally, one-half of the public domain
then open and unappropriated, az per-
petual school fund. 1t has always been
the policy and express will of the people
of Texas to make suitable provision for
the support and maintenance of public
schools. The Constitution of 1916 and of
1861, in requiring the Legislature to pro-
vide for the support of the public schools,
limited revenue for that purpose to the
source Of taxation. Neither of these Con-
situations referred to the subject of pub
lie lands with reference to public schools,
except insofar as related to what had been
granted to the various counties of the
state for such purpose. (See article 10
thereby
The first appropriation of public lands
at all for public school purposes, aside
from that granted to counties, was by the
Constitution of 1866. Mark the language
of it. Compare it to like provision in
the Constitution of 1876. 1t says: "All
the funds, lands and other property here
tofore set apart and appropriated, or that
may hereafter be set apart and appro-
pristed for the support and maintenance
of public schools (section p and ali alter
nate sections of land reserved by the state
out of grants heretofore made or that
may hereafter be made to railroad COM
whatever, shall be set apart as part of
the perpetual school fund of the state"
and "the leg islature shall hereafter appro-
pirate one half of the proceeds resulting
from all sales of the public land to the
perpetual school fund" (Section 8.
The court will see, therefore, that, by
the Constitution of 1866, the will of the
people was that not only should the "alter-
nate sections" of lands granted to corpO
rations be given to the public free schools,
but that also one-half of the proceeds of
all sales of public land should go to that
purpose. 1t will be observed that the
Constitution of 1869 denied the legisla-
ture the right to appropriate lands at all
to railroads or other internal improve
ments. Under that Constitution no such
grants could be made. The clause on
ALTERNATE sections" in the Constitution of
1866 was omitted by it. The intention of
the Constitution of 1869 evidently was
that the whole of the public domain then
unappropriated should be sold, except
such as should be granted to actual set
tiers and to homesteaders in lots not ex-
oeeding 100 acres. (Article 10, sections
6 and 81 1t contains the clause embodied
in both the Constitutions of 1866 and
1876, which provides "that all the funds,
lands and other property heretofore set
apart and appropriated, or that may
hereafter be set apart and appropriated
for the support and maintenance of pub
lie schools, shall constitute public school
fund.-" ARTICLE 8, section g. This ia the
only provision in it that can be found
in the said two Constitutions on
the question. By that Constitu
ton, however, call sums Of money that
may come to this state from the sale of
any portion of the public domain
shall also constitute part of the public
school fund, and the legislature shall ap-
propriste all the proceeds resulting from
NJ Of L. nf IN k4
public school fund.-" Id. Instead, there
fore, of the Constitution of 1869 setting
apart alternate Sc ,tions" which should be
granted to purposes of internal improve
ment, and only "one-half" of the proceeds
that should arise from the sale of the pub
lie domain, as was done by the Constitu
ton of 1866, it prohibited the grant of
lands to internal improvement altogether,
and set apart the whole of the proceeds
which should arise from the eae of the
public domain to the public free schools.
So it will be seen by the course of con-
stitutional provisions from 1876 to 1869,
beginning with no appropriation of the
public domain whatever for public school
purposes, the state finally settled upon the
policy of granting the proceeds of the
whole Of it for that purpose. Evidently
this was Objectionable to the temper of
the public mind in the days that immedi-
etely followed the times in which the Con-
stitution of 1869 fourished; for by the
Constitution of 1876 the people again
spoke on this subject. They engrafted
on this instrument the common clause
found in the Constitutions of 1866 and
1869 as to "all funds, lands, &c." revived
the provision of 1866 as to all alternate
sections" included the provision of 1869,
which set apart the "whole of the pro-
oeeds" that should arise from the sale of
any portion of the public domain, and
added the independent provision never
before found in any Constitution or law
of this state, that "one-half of the public
domain" of the state, in addition to those
other constitutional dedications, should
constitute perpetual school fund.
Indeed this is an express grant, while
the one in respect to alternate sections"
as well as that which related to the sale of
the lands was COL ditional only. II there
had not been any alternate sections" set
apart to railways prior to the Constitu-
ton, and if there had not been subse
quently thereto snys alternate sections
granted for said purpose under it, then
from that clause the school fund got
nothing. Without the existence of the
former or the happening of the latter
condition, no lands could have been set
apart for the schools, nor was the legis
lature required to sell any portion of the