150 S.W. 1149 | Tex. | 1912
This is an original suit for mandamus to compel the issuance to the relator by the Commissioner of the General
The relator’s application to purchase, made under the provisions of title 87, c. 12a, Revised Statutes 1895, and amendatory acts, and not under title 71, relating to the sale of mining claims, or the public lands therein referred to as mining land, was filed in the General Land Office on May 25, 1907, and the land was awarded him on June 15, 1907. Prior to the time of the application, the land had been classified by the Land Commissioner, under the authority of law, as grazing land containing mineral deposits. It was appraised and valued as grazing land at $1.50 per acre. The application was made and the land awarded upon the Commissioner’s classification and at such valuation. In connection with his application to purchase, the relator filed in the Land Office his affidavit that to the best of his knowledge and belief there were no minerals embraced in title 71 on the land, and therein waiving all rights thereto in the following terms: “That said land has heretofore been classed as mineral land, and believing there to be no mineral thereon, and hereby waiving all right to the minerals on said section to the state of Texas, should there be any mineral deposits of any character hereafter found in or on said land, and in the event of a sale to me of the foregoing land it is expressly agreed and understood that I acquire no right, title or interest in or to any minerals that are now or may hereafter be found to exist in or on said land.”
The relator alleges that this affidavit and waiver were involuntarily executed by him, having been required by the Commissioner under article 3498n, which reads as follows: “Whenever any application shall be made to buy or obtain title to any of the lands eru-braced in article 3498a, except where the application is made under this title, the applicant shall make oath that there is not, to the best of his knowledge and belief, any of the minerals embraced in this title thereon, and when the Commissioner has any doubt in relation to the matter he shall forbear action until he is satisfied. Any such sale or disposition of said lands shall he understood to he, with the reservation of the minerals thereon, to he subject to location as herein provided.”
On February 7, 1912, the relator duly tendered to the Commissioner the balance of the purchase money, with all accrued interest and the proper patent fee, and demanded the issuance in his favor of an unconditional patent to the land; that is, a patent without any reservation to the state of the minerals. The Commissioner having refused to issue such a patent, this action has resulted.
•Section 7 of article 14 of the Constitution reads as follows: “The state of Texas hereby releases to the owner or owners of the soil all mines and minerals that may be on the same, subject to taxation as other property.”
If this provision was intended by the framers of the Constitution and the people who adopted it as a grant by the state to both the then and all future owners of the soil of all mines and minerals that might be in it, the state must be held to have been without authority to in' any wise further control their disposition; and, if so construed, this section of the Constitution amounts to a limitation upon the power of the Legislature to enact laws of the character of the statute under review. If, however, it was curative in its nature and retrospective in its effect, and intended as an extinguishment of the rights of the state in only those mines and minerals in soil owned at the tiihe of its adoption, the title of the state to all other mines and minerals in lands of the public domain remained unimpaired and unaffected; and its authority to provide by law that their reservation should be made in future conveyances of such lands must be recognized.
When it is recalled that the development of the mineral resources of Texas is still in a state of infancy; that even their meager disclosure to this time furnishes evidence that in them reposes a wealth whose rich extent in the day of its full ascertainment may give new character to the state’s resources and materially transform ifs industrial life, and that there yet remains undis-posed of in the hands of the state an immense public domain dedicated to the free education of its youth, whose mineral value is commonly estimated at a large amount and will endure for their benefit, should this legislation be upheld, but of which they will be deprived, to the benefit of purchasers and the encouragement of settlement, if it be held invalid; and that we are dealing, therefore, with a question, not only of present concern, but vital in its bearing upon the future of the state, whether viewed in relation to.its. educational interests or from the standpoint.
We can better understand this provision if we understand its history. A full investigation has therefore been madS into its sources, developing some features that possess interest, as well as influence, in the solution of the question. The provision is first found in the Constitution of 1866. It was repeated with but slight variation of language in the Constitution of 1869; and, as incorporated in the present Constitution, its language is substantially that of the original provision of the Constitution of 1866. As found in the Constitutions of 1866 and 1869, the provision was-as follows:
Constitution 1S66, §. 39, art. 7: “That the state of Texas hereby releases to the owner of the soil all mines and mineral substance, that may be on the same, subject to such uniform rate of taxation, as the Legislature may impose. All islands along the Gulf coast of the state, not now patented, or appropriated by locations under valid land certificates, are reserved from location or appropriated (appropriation) in any other manner by private individuals than as the Legislature may direct.”
Constitution 1869, § 9, art. 10: “The state of Texas hereby releases to the owner or owners of the soil all mines and mineral substances that may be on the same, subject to such uniform rate of taxation as the Legislature may impose.”
By the Mexican law all mines, and by the common law all royal mines—that is, those of gold and silver—belonged to the sovereign; and their metals or minerals did not pass by the ordinary grant of the land, without express words of designation. Upon the establishment of an independent government, we find that among the early acts of the Texas Congress was that of June 3, 1837, under which, in its grants of land, there was secured to the republic,, by express reservation, the same right in all minerals that by the common law was reserved to the king in respect to royal mines; the language of the act upon this subject being as follows: “Provided that no lands granted by this government shall be located on salt springs, gold or silver mines, copper or lead, or other minerals, or on any island of the republic.” Paschal’s Dig. (5th Ed.) art. 4402.
This act was before the court in Cowan v. Hardeman, 26 Tex. 217, decided November 19, 1862, and-was so construed by Judge Moore in the following language: “The object and purpose of the Legislature was simply to reserve to the republic the islands and salt springs, gold and silver mines, copper and lead, and other minerals, as corporeal hereditaments out of the public domain; and thus, while the mineral resources of the country that were then known to exist, or that might afterwards be developed, were
Prom an early time there has existed in Plidalgo county a famous salt lake, called El Sal del Rey. It was of large extent and regarded as of great value. Public historic accounts are to the effect that its salt was comparatively pure as dug from its bed and apparently inexhaustible. For many years it was the source of supply for people on both sides of the lower Rio Grande, and during the Civil War it furnished salt for a large portion of Southern Texas. In later years it was the subject of a suit at the hands of the state; the case having been appealed to this court. State v. Parker, 61 Tex. 265. A patent to the land on which it was situated was issued by the state in 1847. This patent was confirmed by an act of the Third Legislature in 1850, in which the state relinquished all its rights. Special Laws Third Leg. p. 96. However, by joint resolution of the Ninth Legislature, approved January 10, 1862, the state asserted its title to the lake and required the Governor to take possession of it, to detail troops to maintain such possession, and requiring the agent of the state, placed in possession to sell its salt at the customary rates. We quote the preamble of the resolution: “Whereas, a valuable salt lake exists in Hidalgo county, known as ‘El Sal del Rey,’ which was reserved as the property of the crown of Spain, the title to which became vested in the state of Texas, which title, inasmuch as said lake could not be lawfully patented, could not be lost by prescription; and whereas, it is desirable to secure the revenues of the said lake for the state, and at the same time supply the people with salt at a reasonable rate: Therefore.” Laws Ninth Leg. p. 61.
Reference is made to the lake El Sal del Rey and this much of its history because of its relation to this constitutional provision and the part it is shown to have played in its original adoption. As disclosed by the journal of the convention, at page 214, the identical provision of the Constitution of 1866 wak reported on March 17th by the committee on general provisions of the Constitution as a substitute for an ordinance theretofore referred to the committee, “relative to the salt lake El Bal del Bey." These proceedings are thus recited in the journal: “Mr. Hancock, chairman of the committee on general provisions of the Constitution, by leave, made the following report: ‘Committee Room, March 17th, 1866. Hon. W. M. Taylor, President pro tern, of the Convention: The committee on general provisions of the Constitution, to whom was referred an ordinance relative to the salt lake known as “El Sal del Rey” have had the same under consideration, and direct me to report the following substitute for the same, and recommend its passage: Section, to be added to general provisions of the Constitution: That the state of Texas hereby releases to the owner of the soil all mines and mineral substances that may be on the same, subject to such uniform rate of taxation as the Legislature may impose. All islands along the Gulf coast of the state, not now patented or appropriated by locations under valid land certificates, are reserved from location or appropriation in any other manner, by private individuals, than as the Legislature may hereafter direct. Read first time, and passed to the orders of the day.’ ”
Immediately preceding this reference there is set out an ordinance on the subject of mines, minerals, salines, etc., referred to as introduced, and read and referred to a committee, providing “that all mines, etc., heretofore discovered or used, or which may hereafter be discovered, shall be and the same are hereby declared to be the property of the rightful owner of the land on which the same may ^be situated;” but it is not clear that it is the ordinance as a substitute for which the provision found in the Constitution of 1866 was reported by the committee on March 17th, as above stated. It is valuable, however, as revealing a deliberate choice of language on the part of the convention in its use of the terms found in the provision that it adopted.
Investigation further develops that, while the provision was reported as a section to be added to the general provisions of the Constitution, was afterwards printed as a general provision, and is so found in the printed copies of that instrument now in existence, it was really adopted by the convention only as an ordinance, and not as a general provision of the Constitution. At page 360 the following appears: “On motion, an ordinance touching the subject of mines, minerals and salines, taken up, read a third time and passed.” And at page 361 the committee on “Enrolled and Engrossed Ordinances” finds correctly enrolled and properly signed “an ordinance on the subject of mines, minerals, salines and oil springs.” These references must have been to the provision afterwards printed as section 39 of article 7 of the Constitution, because, so far as is disclosed, it
It would seem to be, therefore, certain that this section, which we now find in the printed copies of the 1866 Constitution as a general provision, was never so adopted by the framers of that instrument. But other evidence exists which confirms this. It is printed as the third section, under the head “Mode of Calling a Convention and Amending the Constitution of this State.” The first two sections preceding it properly relate to that subject; but it in no wise does so. Furthermore, it begins with the introductory conjunction “that” — an introductory word common to ordinances and statutes, but unusual in Constitutions, and not found in such position in any other general provision of that Constitution.
That the section was adopted by the convention of 1866 as an ordinance, and not as a general provision of the Constitution, does not subtract from its force as a binding enactment ; but it has an important bearing upon the determination of its purpose and the scope and effect its framers intended it to have. Constitutions declare the organic law of the state, and generally comprise only “the rules and maxims in accordance with which the powers of sovereignty are habitually exercised.” They deal with large subjects, and are expressed in broad terms. As a rule, their provisions are not availed of for validating or curative purposes, though they may be; and in some instances have been, so employed. As against the view that this provision was adopted with a curative object, and was intended to be limited in its effect, releasing the rights of the state in only the mines and minearais that were in soil owned at the time, it might well be argued, if such was its purpose, why was a constitutional provision employed? And it might well be further asked in such connection : Did not the use of a constitutional provision, with its recognized broader purpose and large application, manifest a design to thereby announce a new public policy on the part of the state, and to declare a relinquishment of its claims to all minerals in all lands, whether then owned or thereafter purchased? There would be some force in such argument if a constitutional provision had been in fact employed. But when we find that the terms of this enactment were not embodied in a constitutional provision, and did not have the broad and general character of a constitutional declaration, we are driven from the view that its purpose was the proclamation of a public policy, or that its intention was that of a general grant. And when we further find that, instead of the adoption of its terms as a general constitutional provision, whereby they would possess the ampler attributes common to the language of a constitution, the framers of that instrument, upon deliberation, as it must be assumed, employed an ordinance as the medium of their expression, and, as the proceedings of the convention establish, related the provision to a particular body of mineral the title to which was then in dispute, we are bound to conclude, in the light of the language used, that it was their intention that it should have only a limited effect. True the question for decision is only whether the statute here involved contravenes the present Constitution; and as there embodied in section 7 of Article 14 the provision is before us in the full character of a general constitutional declaration. Its terms must be considered as of such dignity, and be given all the effect that their nature imposes. But its effect is controlled by the intent that lay behind it on the part of the people who wrote it into the present Constitution. Their act was but a readoption of the original provision., It is not essential that identical conditions and the same reasons should have influenced both its original adoption and subsequent readoption, although it may be assumed that in both instances the conditions were like and the reasons similar. However that may be, when we come to consider the intended scope and operation of the terms employed, an inexorable logic coippels us to conclude that their deliberate use of the same language must have been with the intent that the provision should have in their time the same operation and effect that it was designed to have in the day of its original enactment Because of its force as a rule of reason, this is a recognized rule of law. And under its manifest application we may be assured that, if we can truly determine the intention of the framers of the 1866 Constitution in their enactment of the original provision, we will be furnished with a plain interpretation of the present section of the Constitution.
That the original provision was reported to the 1866 convention as a substitute for “an ordinance relative to the salt lake known as El Sal del Bey” cannot be regarded as otherwise than strongly significant of its object and scope. It establishes a relationship influential then in the adoption of the provision and interpretative now of its language. While the state had, in 1847, issued its pat
There is nothing in the proceedings that suggests that the convention intended this ordinance to have a prospective effect, while every evidence furnished by the journal is consistent with a purpose to give it a curative character and use. We find that the convention made general use of ordinances as relief or validating, acts. By section I of Ordinance 11 it validated all laws enacted by the Legislature since February 1, 1861, not in conflict with the Constitution ot the United States and the Constitution of the state in force at the time, etc., and all. acts of courts and officers done in compliance with such laws, etc. By section 2 of the same ordinance it validated the acts of all officers appointed by the provisional Governor, A. J. Hamilton. By section 5 of the same ordinance, it relieved against civil suits or criminal prosecutions on account of any seizure, etc., of property since February 2, 1861, in pursuance of the civil or military authority given by the Confederate States government, etc. By section 6 it relieved all civil actions from the operation of the statutes- of limitation during the time of the Civil War. ■ By section 9 it relieved all counties of the state from suits to recover any debt contracted in support of the laté war. By section 10 it relieved all property in the state from the effect of all tax sales made within the period of the war. And by another ordinance it validated all warrants issued by Governor Houston prior to March, 1861, for the payment of troops called into the service, of the state.
Bearing in mind that the ordinances enacted by the convention were valid upon their adoption, without ratification by the people, and that the convention devoted this power that it thus possessed to the relief of the people and property of the state in many other respects, it is not difficult to credit it with a purpose to quiet the owners of land, which the state had theretofore granted, in their title to whatever minerals might be in the soil by “releasing” to such owners the previous right of the state, recently declared to exist by the decision rendered in Cowan v. Hardeman. But considering the membership of that convention and the conditions under which they performed their labors, it is hard to believe that they intended, through the office merely of an ordinance, by an independent act of their own, without the sanction of the people, to make a grant so broad and general, in respect to lands yet ungranted, as to deprive the staté of all power td thereafter conserve for a sacred use a resource held in such value as to have been the subject of a constant and jealous care. It must be remembered that it was not a time for a measure so free in its disposal of the ungranted public domain.
Had the authors of this provision intended it to have a prospective operation and effect, they could, and it is fair to assume that they would, have used terms whose undoubted common use and meaning would have made that intention plain, instead of a term whose usual significance is not prospective, and to which we must attach a use it does not ordinarily have, and impart a meaning it does not commonly bear, in order to give the provision a prospective interpretation.
That the term “owner” was used in connection with the phrase “hereby releases” gives the entire phrase further significance. In its ordinary meaning an “owner” is “one who owns; a rightful proprietor; one who has the legal or rightful title, whether he is the possessor or not.” Webster’s Dict.; Turner v. Cross & Eddy, 83 Tex. 225, 18 S. W. 578, 15 L. R. A. 262. While its use in an instrument may relate to “future owners,” as well as “owners,” it ordinarily means one who already has a legal or rightful title, and not one who must acquire such title in the future in order to come within the term. Here, again, we must give another term of the provision an unusual, though possible, meaning if we construe it as prospective. Giving the term “owner” its ordinary significance, it is the more plain that the phrase “hereby releases” was used to denote the relinquishment of a right that was then capable of enforcement, presupposing the existence 'of a status or condition that called for its exercise, and an existing person against whom it could be exercised. The existing status was the possession by grantees or their assigns of minerals which belonged to the state. The right capable of enforcement was the foreclosure of the state’s title to the mineral. The state being out of possession of what it owned was the condition that called for the enforcement of the right. The existing person against whom the right was subject to be exercised was the owner of the soil. As the design of the provision plainly was to effect a relinquishment of the rights of the state, if we give it a present or retroactive operation, we have, therefore, in conjunction those elements of condition, rights and parties that would call for a “release,” and upon which, in the true sense of the term, it would properly operate. To a future owner of the soil there was nothing to be “released,” in
We do not overlook that in the opinion of the Commission of Appeals, in State v. Parker, 61 Tex. 267, it was said that under the provision of the 1866 Constitution all minerals were released to the owner of the soil, whether the grant was made before or after the time of its adoption. That part of the opinion, however, referring to subsequent grants was dicta, as the land there involved had been granted in 1847, and a determination of the effect of the provision upon the title to minerals in lands granted after its adoption was not necessary to the decision of the case.
The mandamus is refused.