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

| IN aecertalDlng the meaning OF bne5e
words all the alternate sections, land of
course the sections of which they are the
alternately, those to be reserved out OF
grants of lands to railroads and other
| corporations made subsequent to the
adoption of the Constitution, as well as
those cut of grants made prior thereto,
are to be subtracted from the lands
| which, in general sense, are public do
main, and that the lands remaining, if
| any, will cons itute the public domain, as
| these terms are used 10 the Constitution.
The language used is in one sense
susceptible of this construction, but con-
sidered in connection with what had been
previously said, it is not believed that it
was intended 20 convey that idea.
Because, If subsequent grants with their
alternates were to be d Quoted before
there could be any "public domain" as
| these words are used in the Constitution,
then it is not true as declared by the
court that the Constitutionapprop riated
for school purposes one-half of the public
ands that was unappropriated at the
time the Constitution was adopted, and it
| is not true that the legislature obeyed the
| the mandate of the Constitution when it
set apart one-half of the public lands in
Greer county to the school fuod; because
if this construction is to prevail, none of
said lands were "publio domain" within
| the meaning of the Constitution nor in
fact will they ever be, because the state
has not changed It's policy of granting
lands to aid and encourage the construc-
ton of railroads and the evidence shows
that the entire II 961,277 acres of unsp.
| propriated public domain belonging to
the state when the Constitution was
adopted has been surveyed and sppropri-
ated, of which the common school fund
has received only 90. S87, $50 acres.
1t is not believed that the supreme
court intended to say that the clause il
| the Constitution granting One-half of the
public domain to the school furd should
mean nothiog, unless the state should
change its policy of granting lands to
railroads, and this construction leads in
evitably to this result.
The language used by the conrt is this:
"The words public domain as here used
meant simply that one-half of the public
domain then unappropriated to some use
by the Constitution or some precedent
obligation, should be so appropriated"
The Constitution appropriated 100000
acres of land to build capitol, 100000
to the State university, and the alternate
sections of lands reserved by the state out
of grants that had been made to railroads
and other corporations to the school
fund.
The subject matter of these grants was
not contingent, but they were then capa-
BILE of definite ascertaiument. Is it not
probable that the court meant that these
only and not the uncertain grapts which
might or might not be made to railr DIS
and other corporations in the future were
to be exclude from that which, in the
general sense, was public domain, in de-
termining the meaning of these terms as
used in the Constitution?
To give it this meaning will harmonize
it with what had been previously said in |
the opinion concerning this same section |
of the Constitution.
But, aside from this authority, it is be-
Iieved that the construction of the Con-
contended for on behalf of the
state is correct. The purpose of con-
'tructlon Is to ascertain and give Effect to
intent. When the Constitution was
adopted the state owned nearly 72,OOO,0OOI
acres of land that had never been sur
Veyed, or appropriated in any way, and
was commonly designated public domain,
and when clause was put in that instru.
nent appropriating one-half of the "pub-
lc domain" it seems to me that, accord
Dg to the plain meaning of the language
laed, 1t should be held to grant an I'M
iivIded half of the 100000 acres, and
hat whatever other grants were made or
authorized by the Constitution should
'e taken out of the other half, after
and segregation of the half So
,ranted.
To give to the clause granting one-halt
# the public domain to the school fund,
he construction coutended for by de-
endant's counsel renders it, as to its eff
ect aud benefit, in the light of existing
acts, absolutely nugatory, and, consid re- !
When the Constitution was adopted, !.
would have been uncertain and cont -
ingent. 1t was evidently expected by ths
ramers of the Constitution and those whI,
Idopted it that as soon as PRACTICABLE 90.
or it's adoption the Legislature wou 4 mo-
tide for partition of the public i.main
Ind have the moiety appropriated bv the
Constitution to the school fund snrrevod
Ind set apart from the balance; and If this
lad been done every provisi' IN of the
Constitution could have bee = arforcod
without pro 1ucing embarasf ling results.
But it is contended, on beha' f of defend
ant, that aside from this constitutional
q uestion, the plaintiff can not recover in
this suit, because at the t. me defendant is
shown to have acquired it's right to the
land involved as mucn IS one-haIf of the
pubic domain belonging
to the state when tn Constitution was
adopted was still appropriated after
defendant located it's certificates on this
land.
If This charac ter of defense can avail at
all as against ne state in suit like this,
it is sufficient to say that the evidence
does not go ar enough. 1t is not shown
that the lane belonging to the state and
remaining .fter defendant acquired the
land in suit is worth as much as
one-nalf of. the unappropriated public do
main belo nging to the state when the Con.
stitution was adopted. 1t is shown by
the agre ed facts that as much as one-half
the Ian d remained, but its value, as COM
pared nth the other half, is not given;
and the probabilities are that the hslf
then ';emaining is not worth as much
as the half the locators had
prev iously selected. Being a matter of
def anse, defendant should have shown
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