The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-03-21
ATTORNEY GENERAL CRANE ON
4 TRIO OF IMPORTANT LAND
LAWS.
ACTUAL SETTLERS ARE INTER
ESTED IN THE MATTER.
Land Commissioner Baker Sustained
in His Interpretation of the Law.
Land Men and Home Seekers
Should Read the Opinion.
Attorney Generals Office,
Austin, March 16, 1895.


Hon. Andrew J. Baker, Commissioner
General Land Office, Austin, Tex:
Dear SRI have before me yours of the
Ord ultimo, in which you ask for a con-
struction of the acts of the Legislature,
relating to sales of land. approved April
II. 1888 and April /, 1887, respectively,
and how far construction of the same is
affected by the act of 1885 on the same
subject the questions propounded after
the statement being in substance as fol,
lows: "Werc the forfeitures of the land
commissioner after the act of 1887 for
non-payment of interest on sales made
under the act of 1888, prior to the act
of 1855, legal forfeitures? TO be more
definite. did the act of 1887 have the
effect of repeating the act of 1885, SUI
pra: and at the same time revive or
clothe the commissioner with power to
forfeit such sales made under the act OF
1893 prior to the act of 1885, for the nom
payment of interest, and are such for.
FIXTURES made since the act of 1887 legal
fOrfeitureS!
Replying thereto, beg to say, that since
the receipt of your letter l have received
from the attorneys of interested parties
arguments and opinions which, if adopted
either in substance or effect, would com
negative. | have not been adverse TO
hearing from those interested in the sub
iect. because / have been anxious to de-
termine the question correctly. The main
points contended for by these gentlemen
are as follows:
First-That the act of 1887 was intended
TO have a prospective effect only. In other
words. that it was the intention of the
legislature to have its provisions relate
TO forfeitures of lands the sales of which
were made subsequent to the passage
of the act, and not to sales made prior
thereto.
Second-That if any other construction
than that for which they contend be
placed upon the act of 1887, it would be
giving the same II retrospective effect,
rather than prospective one, and there
fore would be obnoxious to the criticism
frequently made that no act shall be
given IL retrospective effect unless the III
tention of the legislature to do so is clear
ly manifest.
Third-That if the construction for
which they contend is not given it, the act
itself is unconstitutional, in that it I'M
pairs the obligations of contracts pre-
viOusly made.
Fourth-Because the privilege of the
state to have the commissioner of the
general land office declare lands forfeited
which had been sold under the act of
1883 was waived by the state by the act
of 1888. and therefore that the right so
waived could not be made available by
the state unless the consent of the other
party to the contract could be secured.
To this may be added the contention of
some others, to the effect that the ques-
ton is no longer an open one, in that the
supreme court decided it in the negative
in the case of Berendo stock company VS..
McCarty, IS Tex, 412. This last point,
however is not well taken, because the
court itself, in the case of Anderson VS..
Bank, sc Tex, 619, expressly states that
the case of BerendO stock company VS..
McCarty is not conclusive of the question
involved in that case, for the reason that
the act of 1887 had not been called to its
attention at the time the opinion reported
in So Tex. was rendered.
Taking up the propositions made by
those who insist that Il negative answer
should be given, the question is, was the
act of 1887 intended to relate to sales
made subsequent to its passage, or ana
it affect those made prior thereto! 1t Is
very clear that the act is in one sense
in that it does not seek to
affect forfeitures made prior to its enact
ment, but it does purpOrt to affect those
and those only-made after its passage.
But the contention is that it cannot au-
thorize the forfeiture of land sold before
its passage An examination of the act
itself will disclose that it does not pur-
port to be an amendment OF any previous
existing law. 1t was to be, and was, the
result of a comprehensive measure Gov
ering the whole subject to which il related:
1t provided for the classification and
sale of lands; fixed the price therefor;
provided the remedy for the state in the
event the purchasers failed to pay the
which they assumed. Sec,
ton 26 thereof expressly appealed all
laws and parts of laws in conflict there
with. Section s made specific provision
for those purchasing under former laws,
and clearly indicated an intent on the
part of the legislature to make the act
applicable to all purchasers. The ques-
ton arises: What portions OF the net OF
1885 were in conflict with the provisions
of this act? Certainly that section OF the
act of 1885 which provided that no for
fixture could be had without judicial as
certainment of the facts, was repeated
because section II of the act of 1881
specifically stated that the commissioner
of the general land office is authorized
to indorse on the obligation of purchaser
LAND forfeited" in the event he failed to
make the payments on the days designat'
ed, and thereupon said lands shall be for
feited to the state without the necessity
of re-entry or judicial ascertainment OF
facts. The provision of the act of 1850
on the same subject, being in conflict
with this, was expressly repealed by sec
ton 26, above referred to. 1t must fol,
lok. therefore, that unless the act of 1881
authorizes the land commissioner TO for
felt land sold under the act of 1881, prior
to the passage of the act OF 1889, that
there is no law which authorizes the for.
fixture of such land Mt all, the act of 1889
being repealed. The state, then, is practi-
cally without remedy as to all sales
made under the act of 1883. do not
think it ought to be seriously insisted that
the legislature intended any such thing
1t is said, however, that section - of the
act of 1887 exempts from operation all
sales made under previous acts. The por-
ton of section % upon which that con-
tention is based is in the following Ian
guage:
Nothing in this act shall be construed
to impair, interfere with, or in any man
ner affect any lease or sale, or rights grow
ing out of the same, made under former
laws, of the lands herein referred to;
provided, that any person or persons who
have heretofore leased lands from this
state at prices fixed by the land board,
and whose leases are not yet expired,
shall have their rental for the remainder
of the uncXpired term reduced to the