The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1898-05-29

NtNS as snOuiu thereafter hc reserved from
srants to corporations. II is insisted that
the expression "cue half the public 40
main must be given al, the force that tn:
Mat prsceaas S m S aSa sao sssen
or by what Is found In other articles OF tho
constitution II Is insisted that that
clause In tho constitution is self-executtnK
ana had the immediate. eject OF appropri..
ating to the school fund an undivided half
u tho then unappropriated public domain
that was rot otherwise appropriated Ivy
othor provisions OF tho Same constitution.
And again the court says:
The attorney general IN his argument
filed In this court says: AS 'one-half OF
the public domain was unconditiouaiiy APP
Iiopratcd to the schools appellants tito
TO any OF the land might be seriously
questioned, for its surveys were made
with notice that no partition had ever beon
made so as TO give the school fund Its
part and that therefore none of tho lands
I; located were IN fact or In law unappro-
lrlated. II the State Is content the appel.
liant certainly ought TO be-
These extracts clearly show the question |
that wns involved In that case. and the propo- |
sititns which the court was called upon to
consider In answering the contention made
In behalf OF the State. the court announced
the proposition that section ., article Z, OF
the constitution, in SO far as It made one half
OF the public domain part OF the public school
fund wns not self-exccuting and that IL was
not intended that there should be n partition
in gross between the State and the school
fund before any lands wero subject to be To-
cnted by virtue of certificates issued or to be
curing homesteRds.
In the propositions that the manner of seq.
regnting the interest Of the school fund In the
lands was left to the egislature---in other
words. that the provisions which made q hail
of the public domain part OF the school fund
was not fully self-executing, and thnt tho
legislature WIS not bound TO make II partition
before any part OF the public lands could be
appforriated--we fully concur. Neither do we
see any reason to doubt the correctness of tho
courts conclusion upon the question involved
In tia. case
Lot us recur, them TO the constitutional pro-
vision which we arc called upon to coustruo.
The section of the constitution under consid-
orator reads follows:
All funds lands and Other property here
tofore set apart and appropriated for the
support Of public schools. all the alternats
sections OF land reserved by the State out
OF grunts herstofore made or that may
hereafter be made to railroads or other
oro-hnlf 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 n perpetual pub
lie school fund Constitution Article VII,
Section e.
The plain purpose of tho section IS TO de.
clare what shall be the school fund. Lands
heretofore set apart to that fund are pre-
served to II. and It is further declared that
one half OF the public domain shall constitute
part OF the constitutional dedication, In
our opinion, It fixed the right OF the school
func TO half OF the unappropriated public
dorsain. but left the legislature, as We have
over the segregation OF that half. except as
to alternate certificates granted to railroad
conpaiies and other CORPORATIONS. was left
wholly to legislative control; and II seems 10
us that II the legislature had made partition
or provided mode q segregation its action
would have been conclusive,
We see good reason why value should
not have been made the guide In making d.
vision, and, since this involved the determ'na
ton OF question Of TACT Its acton h o could
unless perchance II should appear obviously
and grossly inequitable. The fact that II was
provided that by virtue OF every certificate
granted TO railroad companies or other cor
poiations two sections OF land should be sur
vcyed one Of which should be ser apart 20
the schools evinces that a division as whole
was not contemplated.
The segregation could be accomplished by
suct ,bsive divisions In part or by sales OF
psi cells successfully and division of the pro-
ceods. In many of the acts which were passed
after the constitution went into effect and
which authorized the appropriation OF the pub
lie domain, provision was made for division
pro tanto. This was the case rs to grants TO
railroad companies and Other corporations
| as was clearly required by the mandate OF the
| section In question. II was also the case as
| to the uct which granted certificates OF land
| to disabled Confederate soldiers. The act OF
| Julf II, 1879. which authorized sale of the
unsppropriated public lands In certain coun-
| Ties c. the State. directed that the proceeds OF
| the sales made thereurder should be applied.
| ono half TO the school fund and the other half
| to the payment Of the public debt. II was not
| SO. however, with respect to the veteran GER
+, t,ncutes, which We're authorized 10 be issued
by the act OF April 2s, 1876 Nor has the legis-
intuTe at any time undertaken TO mako com
pensltio to the school fund for the land APP
| propriated by virtue OF tho outstanding GER
| tiGoates, which were revived by the constitu-
| ton or those appropriated to other special OBJ
| ieuts provided for in that Instrument, such as
| the lands for budding the capitol and those
| taken up by settlers as homestead donations
| II follows from what has been snid that, In
| orr opinion, where the legislature has taken
affirmative action and has. provided pro tanto
for the segregation OF the Interest OF the
| school fund, Its action Is final. But we do not
| think that the same can bs said MS to sneh
| APPROPRIATIONS were pnssiyely permitted
without making such provision In Wow af
| the plain mandate of the constitution, which
| declared one~haif Of the public DOMAIN pHil
OF the school fund We can not think that II
lnieneed, at least as to the veteran oertiheates
and those revived by tho constitution Itself,
that the school fund should not be compen-
sailed for the lands TINT should be approprl-
ate1 thereby from that portion OF the public
domain which should remain after such APP
/, Mas never been understood that In grant
Ing land certificate the State warrants that
there is public land to which II may be APP
plled When the public domain IL exhhusten
by other certificates or for other puTpossn
certificate becomes practically nuliity.
Therefore II seems that the IDEA upon witch
tho legislature has proceeded IN granting the
veteran certificates and In faillns 10 provide
arv method by which the school iuno sho ,l
get a corresponding part OF the public Janus
upon the location OF those and other ceitln-
Gates OF q like character and upon settlers
locations was that upon each appropriation tht
school funds interest should remain In tbs
! unoppropriated and undivided part, so thai
upcn each appropriation OF the character Nm
; de. consideration tie quantity to which the
school fund was entitled In the reinande.
| continued precisely the same as II was pofors
such appropriation.
. II we are not mistaken in our conclusions
n results that when the Legislature has per
mitted the appropriation Of one-half OF Tn
. undivided public domain without setting aphr
, TO the school fund its half the remaining hal
7 belongs equally to that fund
> We DO not concur Ia this proposition. tina
, because the constitution gave the right 10 1sr
; sons without homestends 10 acquire by settle
mert a homestead donation. that the righ
II continues so long as any part OF the publi'
= domalI. remains not specifically set apart Y
the school fund and not otherwise appropri
atcd The right OF acquiring land as a home
. Bteud donation was necessarily limited. Tn
: lands upon which the right was TO be exer
, clsed were not inexhaustiele, and upon th'
e, + custom OF the lands subject TO such appro
t priation the right OF necessity ceased.
II. could not have esen Intended that hat tn.
| rart OF the school fund should be subordinate