El Paso herald. (El Paso, Tex.) 1901-1931, 1911-06-03


sition that any attempt on the part of
the legislature to segregate the title of
the mineral from the title to the soil
would be and was unconstitutional.
On the other hand, the attorneys for
the state of Texas and the land COM,
missioner seek to avoid the force of
this constitutional provision on the
following grounds:
First: That said provision related to
grants Of land made by the state prior
to the enactment of said constitutional
provision. and that ii was in the nature
Of a validating act
Second: That even should the courts
hold to the contrary on this PROPOSE
tion. still it would be imperative -fnso-
Tar as the present owners of the soil
are concerned, because of the fact that
subsequent to 1876 the state Of Texas
appropriated all of it's public domain
remaining then unsold to the public
school fund; that said fund thereby be-
came the owner of the soil and the ben
eficiary under said constitutional pro-
vision
Third: That the present owners,
when making application for the land,
used blank form prepared by the land
office in which they (the present own
ers) expressly released and waived
their right and title to said minerals
and consequently are estopped to deny
the states rights.
Court Decision.
Taking these defenees up in their or
der, / call your attention to the case
OF Parker VS.. state, 81 Texas 265,
where the question at issue was the
title TO minerals in land sold by the
state with an attempted reservation
The court uses this language: at has
been heretofore seen that the soil en-
braced and included in the patents
was vested in Lewis and his 7endees
and confirmed to them by the vaIidat-
ing act; hence by the terms of the con-
sfltutional provision quoted above Gar |
-lcie z, section SO, Const of 1860. that
released to them all of the mines and 1
substances on the lands
This provision evidenced a /
-hange OF policy on the part of the /
state with reference to mines and min
9ral substances. Therefore in making
grants OF land, the state had served /
ne mines and mineral substances. but /
~ this provision these were re- |
eased TO the owner of the soil,
Vhether the grant was made before or
lIter That time. This provision is in !
ubstance embodied both in the con-
of 1869 and that of 1875. |
and we conclude that all mines
nd mineral substances. including salt
axes, now Of right belong to the owner
Il the soil, ard that, therefore. the
Judgment ought TO be affirmed" All
ext books upon the question of inter
rotation Of constitutional provisions
each and hold that in the construc-
ION thereof the present tense shall be
onstrued prospectively, that is. with
eference to the future. the fundamep-
or
ormulation Of broad rules and prin-
iples for the future government of a
'eople.
The states Reliance.
me second defence of the state is
nat upon which it relies most conf
emily for its title. viz: that under the
boVe mentioned appropriation the pub
&c school fund became the owner of
ne SOIL, and the beneficiary under said
Constitutional provision. This is prac-
lcaIly an open question. there being
o case In point ever decided by the
ourts in this state but I BELIEVES the |
roposition is erroneous in ASSUMING
hat the public school fund is such
eng. either in fact or in law. as to
Maple 1t to hold title to real estate
timer legal or equitable The public
chool fund is merely depository of
roceeds or revenues; in this instance
is a part OF the machinery of the
eneral government of this state. The
to purchase this land were
lade to state officer. elected bv the |
eople OF the state, and the patents
hereto are issued by the state of Tex
s. signed by the governor and attested
= the commissioner. The public school |
md is not a corporation; it has no of
GERS, II cannot enter a plea in court. |
cannot sue or be sued. or do anv oF
claI act. 1t has no existence as n |
eng OF any character 1t bears the |
anne relationship to our state govern
lent that county road and bridge |
and, or general fund bears to the |
ounty itself. and while it is a correct II
roposluon Of law that a county NAV
old title to real estate, do not think |
could seriously be urged that road |
nd bridge fund of a county could hold |
lch title.
In the case of worley VS.. state. AZ
ex. 1, judge Geo. Clark, who was then
ttorney general for the state. uses
lis language: THE principle is well | ,
5tabIlshed with us in Texas that if a
glslaTlVe grant is not made in dis
large OF some obligation of the GOV s
which the law recognizes. If
lnnot be deemed in a legal sense any-
ling but an act Of sovereign grace and
1unty on the part of the political au-
lorities, it matters not how meritori
is the considerations are upon which | I
leh donation is made. In other words.
lch grant does not carry with If the
of a contract, nor would IFS I
in cases where the donee. l
as simply a part of the machinery of l
1Vernment be an impairment of any |
litigation, certainly any legal obliga- l
on See the authorities cited in
is case.
Incorrect Premise I
The third defence urged in favor Of | '
e state, viz: that by having volun- t
rily entered into a written waiver, | 7
e present owner is thereby estopped J I
deny the states claim, is to my | {
ind based upon an incorrect premise. f
leh waiver was not voluntary one. t
IT was made in compliance with a a
atute, which in itself was unconsti- t
tional In the case of Thaxton VS.. S
'rrell, 81 Southwestern, $50 the court t
IDS that where REALTORS right to v
Irchase school land, apart from the t
lnerals thereon, was recognized by n
e state land commissioner. the only
estion at issue being the commits C
oners right to reserve the minerals, c
E purchasers, prior to the accruaI | h
their right to demand patents to f
e land, were not entitled to man t
- |