Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-03-17

The constitutional provisions for public
seLhoo iIs are hereby appended as a part OF the
Section 2, article 7s All funds land and other
Pro erty heretofore set apart and appropriated
rot one upport OF pubic schools; all the alter
aIe sections OF land reserved by the state out of
grants heretofore made or that may hereafter be
MADE 70 railroads or other corporations of any
nature whatever; one-half of the public domain
OF this state; and all sums of money that may
come TO the state from the sale of any portion of
she same shall constitute q perpetual school
Auno' Rev. Stats, art. 31O3, secs. and 2.
The court seems to have overlooked this law in
lIs opinion. 1t will be seen that by the act of
1916 each alternate railway grant was reserved to
pubic free schools. The provision last quoted,
adopted three years later, set apart to the
schools ''all the alternate sections of land re-
served by the state out of grants made
TO railroads, and also 'one-half Of the public
domain of this state. -
Here is legislative appropriation, constitu-
tlonal construction, and execution. The legis-
Iature did not stop here. It further provided
under the caption of 1.-THE Public School
IAN the alternate sections of land reserved by
the state out OF grants heretofore made or that
may hereafter be made to railroads or other cor
poratlons OF any nature whatever. one-half of
tne pubic domain, and all other lands hereto
lore set apart or that may hereafter be set apart
Tor the benefit OF public free schools shall con-
SIltute part OF the perpetual free school fund.
lRev. stats, art. 403l.
No discussion of the foregoing law is INDUCED
IN by the court. Close observance of 1t will show
that IT is not literal copy of the constitution
IS article BOB, but is transpositon of il so as
leaVe on the 1rSt and fourth subdivisions Of
section 2. article Z, but to retain both the al
ternate section" and that same troublesome
',one-half'' clause. Under the peculiar phrase
ology OF this article il would not be amss to say
that 1t was legislative apr opriation of public
domain, legislative construction of the consli-
tuition, or legislative execution of duty i'm
posed on il by organic law. Let the court hold
II TO be either, and the effect and result is the
same-the public free schools have set apart to
them 'one-haf of the public domain in
addition to the railway aiternates reserved by
the acts of 1876 and 1854 to the state But it may
be contended that this statute is also inopera-
i've, for the reason that no rules prescribed
for its enforcement. The statute further says:
- ALI lands heretofore or hereafter surveyed
and set apart for the benefit of the public free
schools, the university, the lunatic asylum, the
blind asylum, the deaf and dumb asylum, and
the orphan asylum shall be sold and leased I'M
der the provisions. Of this act Rev. Stats,
art. 4O3s.
- fter any such lands have been surveyed
and subdivided in accordance with the provis-
ions OF the preceding article, and such sur
veys and subdivi ions have been plated on the
maps of the general land office, such lands may
be sold for their real value, but in no case for
less price than 81. 90 per acre" Rev. Stats,
art. a.
The preceding article'' referred to was ar
ticle 4O39, Revised Statutes, that required the
school part the public domain to be surveyed
and subd vided into quarter sections wi h a view
to their sale. II was repealed at later day be-
cause OF the great expense that will be entailed
upon the state If said articles remain in force.
LGen. Laws 1879, D. i6yl
Mark the points: 1t was not repealed on
count of the "cne-half'' appropriation nor for
the reason that all the school lands were to be
surveyed on the alternate plan by the railway
companies, nor that the legislature regarded the
railway SURVEYS to the school grant, but be-
cause, as expressed in the act, of the great ex-
pense that such surveys at that time would en-
tail upon the state.
Moreover, this court has already held that a
grant of this kind is sufficient appropriation OF
the land, and amounts to a segregation Of 1t
from the mass of public dom in, so to pre-
clude its appropriation by others. Day Land
and Cattle Company VS.. the State, IS Texas,
Keeping in view that same ''one-half' clause,
the legislature, after giving it general effect,
force 1t in each special Instance calling into ex-
erCse its control and dispOsi on of the public
domain Following are few acts showing
legislative recognition OF it:
''One-half to BE- surveyed by pre-emptors for
the school fund" act 1876, l6S.
"0ne-haf the unappropriated public domain
IN Greer county appropriated to public school
'One-half of the amornt realized from the
first so, 600 acres of land sold under this ac shall
be deposited in the treasury Of the state TO the
credit of the common school fund Act Febru
airy 20, 1879. sec. i, p. i.
',,one-half the net proceeds of sales
under the provisions of this act
shall be and are hereby set apart for the benefit
of the public free schools of the state" Act
July IA, 1879, sec. 10, p. 10.
By the act of March II, 1881; more territory
was added to the reservation contained in the
One-half to be surveyed for school fund alt r.
1881, 122.
.'That one-half of the proceeds of the sale of
public lands is declared to constitute a part of
the common school fund, and not subject to ap-
preparations herein made Act February %,
1883.
The legislature even gives the school fund an
equal division with the State University. for it
says:
300, 600 acres contained in the counties and ter
ritory specially mentioned by said acts
rms pV
shall one-half thereof constitute
permanent endowment fund of the University,
and One-half thereof shall constitute
permanent endowment fund ior the common free
schools of this state Act April TO- 1888, p a.
Then follows a re-enactment of the school
law. which also carries with it that everlasting,
new er-Iost, perplexing "one-haH'' provision of
the constitution, as follows:
''section !. Be it enacted by the legislature of
the state of Texas: That the constitutional
provisions of public schools are hereby appended
as a part of the school law of this state.' ''AH
funds. lands, and other property heretofore set
apart and appropriated Tor the support OF pub
lie schools all the alternate sections of Ian re-
served by the state out of grants heretofore
made or that may hereafter be made to railroads
or other corporations of any nature whatsoever:
one-half 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 school fund" Act Feb
ruary 4, 1884, p. IS.
Without further pursuit of legislation on this
subject it is well to reCur to the act of 1872 dis
posing of the public domain in Greer county. 1t
Section l. Be it enacted by the legisla-
ture of the state of Texas: That all
the Vacant and unappropriated public
domain embraced in the territorial limits
of the county o. Greer, be and the same is here
by appropriated; one-half thereof for public free
schools for the education OF children in Texas
without reference to race or color, and the other
half for the payment OF the school debt.
Sec. 2. said lands shall be surveyed and
disposed of for the purpose of carrying out the
provisions OF this act IN such manner as may
hereafter be provided by law
No railways immigration mentioned. The
act of 1876 granting lands to railways was yet IN
force, but this legislature gave that ''one-haf''
constitutional clause full effect in the particular
territory of Greer county. II, therefore, ''rail-
way grants were among the enumerated pur-
poses'' referred to by the court, and if the
''one-half'' clause, as it says, was to reach
and hold beyond legislative control whatever
portion of the public domain remained after the
execution of the enumerated purposes, - then
as a logical and judicial result, this act is un-
constitutional On this point, however, there
can be no doubt, as this court has settled ii to
the contrary, for in the case of Day Land and
Cattle Company VS.. the State, 6S Texas 526, in
considering the question the court used the fol-
lowing unambiguous language:
lin so far as the act in question appropriated
one-half OF the unappropriated land in Greer
county to this school purpose, 1t only carries
into effect in the particular territory the mandate
of the constitution"
A rule that would apply TO Greer county should
also be good as to every other county, and for
- go