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

same as 'unappropriated public domain Such
is the sense in which these words are used in
the constitution ana laws. although in some in
stances the words inappropriate or vacant
are used in connection with them, as will be
seen by reference to their use.''
Section z, article Z, of the constitution,
after dec. airing that 'all the alternate sections
of land reserved by the state out of grants here
tofore made or hereafter to be made to railroads
or other corporations of any nature whatsoever
shall constitutes perpetual school fund, pro-
vides that one half of the public domain of the
state among the other funds named shall con-
stiuute perpetual school fund -
1.-The a ternate sections set apart to that
fund were, IN general sense, pubic donna N,
but it was not thought that these lands would
domain, hence they were specifically approprI-
ated as they had been by former laws and an
additional grant was made TO the fund of 'one-
half of the public d main of the state. The
words public main, 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 ap-
propriated.' Day Land and Cattle Company
VS.. the state, 6S Texas 526.
1t will be observed that the foregoing decis-
ion was not in case between private parties,
but was between the state government and a
corporation, and directly involved more property
rights than this one. 1t would seem, therefore
that the Interpretation of this ~ clause of
the constitution thus authoritatively declared
in so important case would be accepted and
regarded as conclusively correct for the guild
ance not only of this court, but of all the de-
partments, courts and citizens of the state. 1t
IS part of the law of the land, and while
any Judge would be eXcusable for acting upon
his own view and understanding of the consti-
tuition, yet that decision upon the point in
volved in this case-is the highest evidence
which the state has of the true meaning of it,
and should be accepted as authority so long as
it stands unquestloned, unreversed, and no at
tempt Whatever is made to explain or modify
1t, or to show that the constitution then was
misunderstood or misapplied. Certainly this
court cannot set the precedent of treating SO
important q case as that with such indifference
q c n
does not coincide with the states contention as
to the purpose of that "one-haf' clause?
The opinion was by undivided court, and
also in passing upon the defendant plea of
estoppel, based on the theory that the issuance
OF patents and construction of the constitution
by the governor and land commissioner con-
cluded and were final as to the states claim,
the court Lad this to say:
1.-The state cannot be estopped by the act of
the governor and commissioner of the general
land office in issuing patents to land in disre-
gald of law Like ell other officers, their
powers defined and limited by law, and acts
done in excess of the powers conferred on them
are not official acts. -
Without referring to this decision, or to the
articles of the Revised Statutes or TO the mes
sage of the governor, or to several of the legis-
lative acts quoted herein, this court, in con-
Guiding its opinio now complained of, says:
1t is proper 10 say, IN conclusion, that no
disregard of any mandate of the constitution,
by either the legisl ture executive depart
ments OF the state government, however often
repeated or long contiDu ed, can be for one mo-
ment tolerated by the judicial department as a
reason for like disregard by that department.
But WHEN. as in this case, seven successive
legisl atures have through a period of thirteen
years acted upon a given construction OF the
constitution, when the department Entrusted
with the immediate administration of The land
system of the tate has uniformly cOncurred in
that construction, and when sue essive govern
of the state, eminent for their patriotism
and intelligence more than one of whom having
served with distinguished success in this court),
have approved it, we feel that nothing less
than an absolute conviction that they have all
been wrong would justify US in so deciding. The
duty to dec de correctly was as incumbent on
them as it can be on ourselves. The people who
made the constitution. with the knowledge OF
the construction that was being given to 1t,
have without protestation, year after year, sent
up to the capitol other legislatures to pursue the
same policy. The lands have been assessed,
and taxes have been demanded and received by
the state, and the people, with unhesitating
trust IN the intelligence and honor OF the state
government, have bought and sold them
In the great length of this opinion it fails to
cite even a single act of the ''seven successive
legislatures, >, Of either governor, that in any
way supports the view it takes of the constitu-
ton; nor do the agreed facts show that 1.-The
people with unhesitating trust in the intelli-
gence and honor Of the state COVER nment (or in
any other way) have bought AMI Sold the
lands; nor is here anything to indicate the like
disclosed by the re ord.
AS to legislative construction, investigation
of the Revised Statutes and legisl alive acts
herein cited and quoted will. prove be-
yOnd doubt that this court is wrong as
to its own construction, and also in the one
government have so long concurred in.
AS to executive conStruc ions the court is mis-
railways under the present constitution were re-
ceived between August Is, 1876 when the law
authorizing them was passed., and April y,
1SS2-the date 1t was repealed
No legis allure met after the passage of that
law of 1876 until in January, 1879. During that
period the record here fails to show the issuance
of any patents at all, and there was no leg sla-
ture to receive message from Hon R. B. Hub
bard the governor by succession. Hence ''ex-
ecutive construction could not have been
given by him. On assembling OF the next legis-
lature in January, 1879, Governor Roberts (who
''sat with distinguished success in this court'i)
delivered the inaugural address, and afterwards
the message herein quoted, whe Elm he ex-
pressly told that body that 'one-half the public
domain belonged, and should be set apart to
the public free schools. In 1852 while he re-
manned governor, the law of 1876 granting lands
in aid of railroads repealed on the ground
that the ''public domain was exhausted, - and
the record here fails to show and the court d, es
not iudicially know that any patents issued dur
ing the succeeding administrations of Governors
Ireland and Ross.
Then how can this court determine that more
than one governor ever gave this provision of
the constitution construction at all? The only
one who had a reasonable or valuable orportu-
nifty to give ii any construction was Governor
Roberts. Certainly he did not say, as this court
holds, 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 pur-
pOSeS. - On the contrary, he seemed to think
none of it was to be held beyond legislative
CONTROL and told the legislature that the con-
stitution imposed upon it the duty of setting
apart for the public free schools Zone half Of
the public domain of the state.' In pursuance
of hi excellency's recommendations, the legis-
lature passed the laws herein quoted, giving the
schools ''one-half'' in all special instances and
adopted the revised statutes which, as before
stated, appropriated by two different articles
lone half the public domain to them.
In giving effect to the constitution great deal
of work was left to the committee of codifiers
who between the adjournment of the legislature
of 1876 and the converting of the next one in 1879
prepared the revised statutes, wherein most, if
not all, the constitutional provisions were put III
force. With this explanation the courts atten-
ton is again invited TO consideration of articles
3703 and 4031 of said statutes, which were over
looked. or at least unnoticed, in its opinion,
with the hope that they will be explained.
Do they support the cour IS construction of
the 'one-haH'' clause or the one contended for
by the state?
SUGGESTIONS.
An inspection of the provisions of section 2,
article Z, and other sections contained in the FIVE
constitutions will show the unvarving clamor of
the people of Texas for public schools. By the
two first on 5itutions they resorted exclusively
to taxation as the method OF raising revenue to
support them. In the one OF 1866 they added
contribution of part of the public domain to
taxation for that purpose. The one of 1869 gave
all the proceeds of sale of the public donna in,