26 S.W. 869 | Tex. App. | 1894
This is an appeal from a judgment rendered by the District Court of Liberty County, in the suit of the State against appellant to recover certain lands described in the petition, and claimed by the defendant under purchase from the Commissioner of the General Land Office. The defendant's right to the lands depends upon the power and authority of the Commissioner of the General Land Office to make the sale to the defendant, and that power is given to the Commissioner, it is contended by appellant, under the Act of April 1, 1887, and the amendment thereto of April 8, 1889. The latter part of section 22 of the Act of 1889 provides as follows: "And all sections or fractions of sections, in all counties organized prior to the first day of January, 1875, except El Paso, Pecos, and Presidio Counties, which sections are detached and isolated from other public lands, may be sold to any purchaser except to a corporation, without actual settlement, at no less than $2 per acre, upon such terms as the Commissioner of the General Land Office may prescribe." Section 5 of the Act of 1887, and that of 1889 also, expressly prohibits the sale of school lands to any but actual settlers. These acts were construed by this court in the case of Eastin v. Ferguson, reported in volume 23 of the Southwestern Reporter, and in the later case of Burnett v. Winburn, and we held in those cases that the Commissioner of the General Land Office had no power to sell any portion of the public school lands to any but an actual settler, save and except such sections or fractions of sections as are expressly named in section 22 of the Act of April 8, 1889, and that the attempted exercise of such power by the Commissioner was a nullity, and would convey to the purchaser neither title to the land nor any right therein. The lands in controversy are portions of the public school lands, and are situated in Liberty County, and that county was organized prior to January, 1875, but every section of such lands which was recovered by plaintiff is adjacent and contiguous on some portion of its boundary to other public lands. The defendant made application in due form of law for the purchase of the lands, and they were sold to him by the *38 Commissioner upon the terms and conditions prescribed by the statute for the sale of lands made under its authority; and one-fortieth of the purchase money was paid by the defendant into the State Treasury. The defendant was not a settler upon the lands.
Appellant, under his second assignment of error, submits the following proposition: "All public free school lands situated in counties organized prior to January, 1875, except the counties of Presidio, El Paso, and Pecos, are, under a proper construction of the latter clause of section 22 of the act as amended April 8, 1889, isolated and detached from other public lands, and are, under said section, subject to sale to others than actual settlers."
To this proposition we can not assent; because to do so would be to suppress and render nugatory one entire sentence of the section. The power given to the Commissioner to sell to others than actual settlers is not only restricted to lands situated in counties organized prior to January, 1875, but to those sections or fractions of sections of lands situated in such counties, which are detached from other public lands. In construing a statute, every part of it should be given effect. Suth. on Stat. Con., secs. 239, 240. If the intention of the Legislature had been to give authority to the Commissioner to sell all school lands situated in the counties designated in section 22 of the act, it would not have added, as a further limitation upon the power it was conferring, the words, "which are detached and isolated from other public lands." We conclude, therefore, the court did not err in holding that the lands for which it rendered judgment were not detached and isolated from other public lands, and were subject to sale to actual settlers only. But the appellant further objects to the judgment of the trial court as erroneous, in this, that if the court's construction of the statute be correct, then the statute, so far as it restricts the sale of the lands set apart by the Constitution for the benefit of public schools to actual settlers, is unconstitutional and void; that such a restriction placed by the Legislature upon the sale of the school lands is an appropriation of the lands to another and different purpose than that to which they have been dedicated by the Constitution. That a portion of the public domain is made by the Constitution a part of the permanent school fund, is not an inhibition upon the power of the Legislature to dispose of such portion of the public domain. Indeed, the article of the Constitution which creates the permanent school fund contemplates legislation, and requires that the Legislature shall by statute make the school lands available for school purposes. The Legislature may in its discretion lease or sell the school lands, and it may restrict the sale to certain classes. It is for the Legislature to determine when these lands shall be sold, and on what terms, and at what prices they may be sold; and whether they may be purchased by capitalists for speculation, or only by actual occupants of the premises. These are all matters for *39 legislative discretion, and upon the exercise of such discretion the Constitution imposes no restriction.
There is but one other of the objections urged by the appellant to the judgment that we shall notice. It is insisted, that the court erred in not requiring the plaintiff, as a prerequisite to its recovery of the lands sued for, to make a tender to the defendant of the money paid by him into the State Treasury, and to offer to return to him his obligations, executed for the balance of the purchase money. While this is the rule in courts of equity in suits between individuals, it is generally not observed when the plaintiff in the suit is the State. It is to be presumed that the State will, in its own way, make restitution to any of its citizens for any loss or damage which he may have sustained without wrong or fault on his part, through the illegal and unauthorized act of an officer of the State, when by such act the State has received an advantage or benefit. The State v. Snyder,
Causes numbers 645 and 646 are appeals by the defendants in the court below from judgments rendered by the same court for the State against the defendants; and they involve the same questions which are decided by us in this cause, and were submitted by counsel as companion cases of this; and we therefore affirm the judgment of the lower court in each of said causes numbers 645 and 646.
Affirmed.
Application for writ of error refused, November 9, 1894. *40
