Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-03-17
SUPREME COURT OF TEXAS
Decided Against the State at Tyler
Term, 1889.
Galveston, Harrisburg and San Antonio Rail
road Company, Appellant, VS.. the state
of Texas, Appellee.
STATES MOTION FOR A REHEAR1Na.

| STATES MOTION FOR REHEARING.
The state now moves this court for rehearing
of the above entitled cause, and hereby assigns
| the following reasons therefor:
l. Contrary to the courts opinion, the consti-
| tuition expressly dedicated one-half of the public
! domain belonging to the state at the date of its
adoption to the public free school fund. in addi
ton to the alternate sections that the legisla-
ture should, in the exercise of its discretion, re-
serve out of grants that might thereafter be
| made to railway or other corporations.
| 2. That the court erred in holding that said
| "one-half clause was not self-executing, and
| that there was no provision requiring the
legislature to put it in force, for the reasons
~ That all unquali fed provisions of the con-
| stitution are mandatory, and require legislative
| and judicial obedience
~ That section ~ of article thereof express
ly provides that ''the legislature shall pass such
laws as may be necessary to carry into effect the
provisions of the constitution. -
(3l That in pursuance Of and in obedience to-
| said constitutional provision, the legislature,
as shown by Revised Statutes, articles 37O3 and
4O31, expressly appropriated "one-half of the
| public domain of the state, and in addition
| thereto each alternate section reserved out of
railway grants to the of the public free
| schools.
8. The court erred in holding ''that the object
of the clause granting one-half OF the public do
main TO the school fund was to reach and hold
beyond legislative control whatever portion
| of the public domain remained after the exc.
| cution OF the enumerated purposes for the
| reasons:
% This conclusion is based on the false premise
| that the constitution required grants to be made
to railways, or that they were made by that in
| strument itself
(2) That, followed to the logical and practical
| result, it rendered the "one-half' clause mop
| erative, useless and nugatory.
itself an express grant without qualification, is
made subordinate to and dependent on the con-
| tingent and qualified alternate clause -
| A. The court erred in holding that the govern
ors, land commissioners and the legislatures of
| Texas had ever construed acted on the con-
! stitution agreeably to its opinion, for the
| reasons:
| ~ That no other governor except Hon. o. NJ.
| Roberts ever had an opportunity to construe
said provision, the law OF 1876. granting lands
! to railways, was repealed by act of April %.
| 1882, on the ground that the pnblic domain
| exhausted; and he, on two occasions, in his in
| augural a tdress and message to the legislature
| expressly declared that one-half the public do
main OF the state belonged, and should be set
apart, to the school fund in addition to the alter
| nate grants received from railway surveys.
~ Inat IN 2nedienoe 10 inc sad governors yer
appro pirate one-half the said public domain for
the public schools. in addition to the alternates
heretofore reserved to the state by act of 1876
| out of railway grants.
| (3) That the report OF the engineer which
! the certificates to railways were issued the act
| of the land commissioner in issuing and signing
them, the act of the county and district surveyor
! in locating them on public domain, their subse-
quenL file in the land Office and the issuance of
| patents IF any thereon, were all ministerial,
clerical, and not discretionary judicial acts
| quiring serious consideration of constitutional
| provisions.
"a That the courts opinion is in conflict with
| its previous opinions on the main question, for
| that in the of Fannin county Riddle,
| 81 Texas. $685. rendered in 1879, it held that the
! constitution ''unreservedly dedicated one-half
of the public domain to the public free schools
| And in Day Land and Cattle Company vs.. the
| State t6S Texas, 54I, this court in passing
the very question under consideration that arose
question appropriated one-half of the unappro-
priated land in Greer county to this (schooD
purpose, it only carries into effect in the par
ticular territory the mandate of the constitu
tion.''
Wherefore, in view of the premises, the state
prays this court to have notice hereof duly
served on E. P. Hill, Esq. counsel for appel
liant, who resides in Harris county, Tex, and
that rehearing of this said cause be granted.
dered corrected. J. 5. HoGG,
Acknowledgement.
ARGUMENT IN SUPPORT OF THE MOTION.
In view of the fact that if the COURTS opinion
remains unchanged the state of Texas will lose
Is. 600, 600 acres of land which it claims for the
public free schools under the institution and
laws, this case ought to receive more careful
consideration than possibly could have ever been
given it by the overburdened judges at the LIST
term An overworked court is cause of public
distress which must be regretted, though it can
be relieved; but an act, especially from a high
Judicial source, that besets constitutional pro-
vision is a public calamity over which genera
lions yet to come may mourn. Is the opinion in
question cor-ect7 If 1t is, then it ought to stand
though by it the state should be pauperiZed, II
it is not, then the steady nerves OF righteous
court ought to pen correction, though the con-
sequences should bring grief even to the millions
To the point: The contention of appellee is
that by the constitution OF 1876 there was uncon-
an undivided Cne-half of all the unappropriated
public domain within the state at the time said
constitution was adopted, in addition to such
alternate sections as should thereafter be re-
served from grants to corporations. Lying
within the following section Of that instrument
IAN funds, lands and other property hereto
fore set apart and appropriated for the support
of public schools; al the alternate sections OF
land reserved by the state out of the grants here
tofore 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 public school
fund.- Article Z, section 2.
majority of this court in its opinion here /
complained OF denies the correctness of the |
states proposition. overrules the decision of the
court below, reverses and renders the case in |
favor of appellant company, upon substantially |
the following grounds:
l. That said ''one-half'' clause is not self |
executing. and there II no provision of the con-
stitution requiring the legislature to put it in |
force.
?. THAT the object OF the clause granting one
half OF the public domain to the school fund was
to reach and hold beyond legislative control |
whatever portion of the public domain remained |
after the execution OF the enumerated purposes.
3. That the legislatures, the governors and |
land commissioners had for period of thirteen |
years uniformly concurred in different con- |
str uction from that commended for by the state.
Boiled down, the foregoing three points are |
about what may be culled from the courts very |
lengthy opinion giving meaning TO the trouble |
some hyphenated two words '.one-half's found /
in the article on Education in the constttu- /
ton. True the court quotes other provisions OF i
that instrument. but in al csndor il Is submitted