The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1900-01-25

SCHOOL fund, or TO that portion only which
remains to the State after the division
contemplated in section 2, article Z, OF tn,
constitution, has been had.
tit shall be concluded that the rartfc.
tilar fund thus created by the coustitutior
for the support OF the public free schools
is but one-half of what Will remain afte,
the segregation Of the surveys mentioned
from the entire unsurveyed public do
main as II existed on April II. 1876, the
deficit to the fund can be easily met.
Upon this hypothesis there is now du,
the fund-omitting the water acreage,
1,722.ss9 acres, altogether from considera-
tion-S,s02, o7667 acres, less LAPS, SAL. 40
acres transferred to the fund by the &C,
of April is, 1899.
The remainder can be supplied in part
by conveying to the fund the unsuryeyed
vacant land-4. 444, 1906 acres--leaying 90
340.27 acres unprovlded for
Should, however. IL be determined that
the surveys for certificates issued prior
but located subsequent to April II. 1876,
and those made under the grants by the
constitution to the university aud for the
capitol -aggregating 1924, 62l.56 acres
ought TO be borne by the States share of
the public domain only, then there will be
needed provision for an additional deficit.
the amount OF which will depend upon the
extent of the charge to be thus made.
Entertaining the opinion that any set :
tloment made by the legislative and ex-
ecutive departments OF the government
would hardly be questioned by the Judi
eial and that the courts would probably
disturb no patent that may have been
regularly issued. because OF previous ex-
haustion by the State OF its share OF the
public domain, have believed II my duty
to inform the legislature as fully as pos
sible as to the different character OF sur
Veys made since the adoption of the con-
stitution.
Having been previously advised that
there was probable deficit In the lands
belonging TO the permanent school fund
as designed by the constitution, | adopt
ed upon my Inauguration as governor
and have since maintained the policy to
sign no patents covering surveys, the To-
cations of which were not made prior to
April IL. 1875, or were not upon lands al
ready set apart to the fund.
This has been done In order TO avoid
further complication and greater exhaus-
ton OF the public domain pending the
settlement OF the exact status OF the
State to the fund.
II Will be perceived In the statement
submitted that there are items OF appro-
priation for the permanent school fund
OF certain counties and for the university
under legislative grants and amounting
to S,S36,0lS acres. These surveys, though
for educational purposes, can not. Il il
believed, be chargeable to any extent
whatever against the share due the per-
manent school fund under the constitu-
tion.
Such construction would involve the
power of the State to segregate as IL
may please, from the permanent fund
any portion and transfer Il to the coun-
ties or for other purposes of an educa
tional character.
True II is that the supreme court has
said, in the case of Smisson VS., The State
Reports, Vol, 71--"that It is un-
necessary to enter into a critical examin-
alton of the true relation OF the State
the people--to the common school lands
in order to illustrate the fact that the
relation imposed by section 2, article I,
OF the constitution is not that of a truss
tee seized of lands for the use OF another
with naked power OF sale"
Though the language quoted would i'm
ply the existence OF power IN the iegis-
lature to exercise Its discretion in the ad-
of the fund yet II does not
follow that such discretion is broad
enough to cover the alienation by the
State Of any portion OF the school lands
to the counties, though charged with the
restriction that 1t should be held and
used as a permanent fund for the sup
port of the public free schools within
such counties. The fourth section of the
same article provided that the lands set
apart to the public free school shall be
sold under such regulations. at such times
and on such terms as may be prescribed
by law; and the legislature shall not have
power to grant any relief TO purchasers
thereof.
The comptroller shall invest the pro-
ceeds of such sales, and OF those hereto.
fore made, as may be directed By the
board OF education herein provided for
in the bonds OF the United States, the
State Of Texas, or counties in said State,
or in such other securities and under
such restrictions as may be prescribed by
law and the State sail be responsible
for all investments"
Commenting upon this provision the
court. in the case cited, says that 1.-The
direction in the constitution is manda-
Tory. and leaves no discretion in the leg
islature as TO the mode in which the
lands shall be ultimately utilized"
The intendment OF the constitution is
,lear that the State should have the ex-
elusive custody and administration not
only OF the lands set apart and appro-
priated for the support of the public
schools, but also OF the proceeds arising
from their sale.
In this view OF the question, the con-
,luslon must be that the legislative grants
TO the counties and to the university
iince April II, 1875, should be taken
rom the States share OF the public do
main and not carved out of the lands
by the constitution for the
permanent support of the public free
schools.
1t will be well TO note, in this connec-
ion. that in the unsurveyed vacant land
1t the time OF the adoption OF the con-
'titution and found by the board and
he commissioner 10 be 6i,25s. 46156
acres. Is not included 295614 acres. upon
which homestead donation claims to the
number of 265s have been filed but not
patented, and also 1,l3S,S27 acres COW
,red by Spanish grants which, with the
exception OF 81 .o36 acres, have never been
'ecognized as valid by the general land
office.
The attention OF senators and repre-
,entatlyes is especially invited TO the ac-
communication OF November
IA, 1899 from the commissioner, and
such legislation is recommended as Will
secure the early determination through
Judicial inquiry. OF the legal status OF
he grants and patents mentioned. For
he information OF the legislature. I also
herewith copy OF a letter from
he commissioner OF January 6. 1900. and |
tlso a copy OF one from the comptroller
II January ~, 1900
II In the settlement OF this question 1t
should be the will OF the Legislature
hat the homestead locations mentioned |
Ihould be recognized It Will then become
necessary TO provide for the one-half