Howell v. Hanrick, 29 S.W. 762

Howell v. Hanrick

29 S.W. 762

Tex.

1895

Check Treatment

Lead Opinion

ON MOTION EOR REHEARING.

E. J. Gurley and Walton & Hill, for defendant in error, on motion for rehearing.—Our attention will be directed to one point. A suggestion may be made as to another, but such other is only collateral.

The court decides in substance:

1. That Luke Lesassier was in the nature of a special officer to issue the final titles to the two Aguirres and Tomas de la Vega on their joint concession from the Governor of Coahuila and Texas.

2. That if in that capacity he issued to Rafael de Aguirre a complete and perfect title to eleven leagues on the Brazos, of date 4th of October, 1833, then such act on his part was an execution of the power vested in him, and an exhaustion thereof.

3. That if such be the fact, then that the issuance by him on the 22nd October, 1833, of another title by virtue of the same power, was a void act, and conferred no right, unless it be shown that the first title was legally abandoned.

4. That unless legal abandonment of the title dated 4th, as above, be shown, then in 1874 the land embraced in the second or junior title was subject to be appropriated by individuals by virtue of genuine Texas land certificates, and also subject to be appropriated by preemptors under the laws of Texas.

While the foregoing is not the language of the court, yet it is what we understand to be the exact meaning of the decision.

Our general counter-propositions are these: 1. That Lesassier was not in the sense of the law a special commissioner, but was one of a class, all of whom had power to issue titles of the character of the one involved; not by being specially empowered, but merely by having the *399 concession referred to him; or if that be not exactly so, they had power to issue land titles.

2. That he was a public officer, vested with power by law to issue land titles; and that his act under question was only in excess of authority, if not within the law, and conferred colorable right, which may not be attacked by individuals, but by sovereignty alone.

3. That where a title is a perfect legal title on its face, individuals can not bring up matter aliunde the perfect face to mar or destroy it, unless they do so in the assertion of a contemporaneous equitable right superior to the legal title in its inception or consummation.

4. That forty years is too far removed from the res gestas in which to inaugurate action through testimony dehors the record to undo what it appears to be on its face, and which for these forty years has been recognized by government to be a perfect thing, and the depository of lawful right to land.

5. It is the public policy of Texas, as of every other civilized government, to quiet titles to lands—to make them fixed, safe, and to remove them from the domain of conflict and litigation.

6. The power of Lesassier was not exhausted until he had issued three titles by the authority of the concession dated 14th June, 1830.

Special propositions: 1. In law, under the doctrine of relation, the second title is the elder and superior, or else both the titles to Aguirre, mentioned as first and second, are of the same date.

2. The issuance of the two titles to Rafael de Aguirre is a patent mistake on their face.

3. The State resumed dominion over the territory embraced in the first title, granted it away in payment of its land certificate indebtedness, which was tantamount and equivalent to election—denunciatory of one title, and the validation, affirmance, and sufficient recognition of the other.

4. The Republic" of Texas received pay for the second grant after the revolution.

5. The question decided by the court was not, under the law ñor under the rules of the court, before the court for decision, never having been made in the trial court nor in the Court of Civil Appeals.

6. The question as to the legal validity of the second title was limitedly made below, but only limitedly, and as a circumstance to be considered by the jury on the issue of forgery.

Citing: Johnson v. Smith, 21 Texas, 729; Hancock v. McKinney, 7 Texas, 442; Galloway v. Finley, 12 Pet., 197; 7 Wheat., 214; United States v. Arredondo, 6 Pet., 731; Airhart v. Massieu, 98 U. S., 498; Truehart v. Babcock, 51 Texas, 169; Westrope v. Chambers, 51 Texas, 178; Summers v. Davis, 49 Texas. 541; Swift v. Herrara, 9 Texas, 280; Maxey v. O’Connor, 23 Texas, 239; Winsor v. O’Connor, 69 Texas, 571; Howard v. Colquhon, 28 Texas, 145.

We pass to a second view of the decision, wherein it is decided, that the extension of the first grant to Aguirre, on the Brazos, was an *400 exhaustion of the concession, and also of the power of Luke Lesassier under it. We are sanguine in the hope and confident in the belief that the court can be convinced of its error in the above utterance.

The court will remember that the concession does not name Lesassier; he is not thereby empowered as an individual. He is mentioned as one of a class, and that in the alternative. We take it to be the law, from tradition and custom, that alcaldes had, in connection with other duties, the power to issue land titles, and this belief is derived from the fact known to the court, that Alcalde Lesassier issued the greater portion of all the eleven-league grants in Texas; and no authorization was ever directed to him by name, as an individual, but uniformly in the character of alcalde. The authorization was directed to an officer of government. As said by Judge Wheeler, in Hancock v. McKinney, 7 Texas, 445, 446, the power vested in the Secretary of State—or any officer of government, in fact—was never known to the courts of Texas, and this was long, long ago, when we were comparatively near the time of the former government. See Treoute v. San Francisco, 100 United States, where it is said, page 252: “The alcalde of a pueblo exercised the power of distributing the lands of the town in small quantities to the inhabitants.”

If there were difficulties then in definitely, or even with any degree of legal satisfaction, ascertaining the powers of a recognized governmental arm, how much greater and insurmountable is the difficulty at this late day of judicially declaring what an alcalde could or could not do under the unknown powers vested in him. The Supreme Court of the United States, in Spencer v. Lapsley, 20 Howard, 271, when the title issued to Vega by Lesassier by virtue of the concession before the court was under discussion, says, that alcaldes had power to issue land titles. Such was the construction put on Texas decisions by that court. See also Merryman v. Bourne, 9 Wallace (U. S.), 601. In case "of doubt, the safer rule is to let the presumption of the law prevail, that officers of a former government acted within their powers. That is the rule that has for generations anchored titles so emanating to pillars of safety and stability, and protected innocent purchasers for value in their acquired rights. We are driven to the conclusion from the history of the country, judicial as well as political, social, and material, that alcaldes had power to issue land titles, but perhaps could not put themselves in motion, but could act with power when a matter was referred to them. A latent power, just as power lies dormant in a court until it is put in motion by some proceeding, or trans-' action, or controversy brought before it. Ayuntamientos, chief of which was the alcalde, had power to issue land titles, and to recall them on the grantee abandoning the country, failure to cultivate, or pay purchase money. So this court has decided (Holliman v. Peebles, 1 Texas, 699); but there is no statute, decree, or written regulation which directly or by implication vests such power in them, that we *401 have been able to find except in section 11 of the decree of 4th January, 1813, found in Dublan & Lazano, 397-399, and is as follows:

“XI. The designation of these allotments shall be by the constitutional ayuntamiento of the towns to which the lands correspond, as soon as the interested parties shall present to them the documents that accredit their good service and retirement, hearing the syndic solicitors upon all, briefly and administratively, without any cost or dues being exacted. In continuation the expedients (expedientes) shall be remitted to the provincial deputation, in order that it may approve the same, and repair any injury.”

See also article 26 of Colonization Law of 1824, Laws Coahuila and Texas, pages 19, 20.

The case of Summers v. Davis had origin from the recalling of a title by the ayuntamiento. 49 Texas. There the title was recalled in 1826. The land was located over in 1852, and patented. These two titles came in legal conflict. The old title had article 908, Paschal’s Digest, behind it, as did the Muldoon grant in Truehart v. Babcock, 51 Texas, 169. In both cases the court sustained the old title, not because the one had not been recalled, nor the other absolutely void, but because they had been titled or surveyed. The Muldoon title was absolutely void, as void as if it never had been, and yet locations over it were not allowed. It may be, that we will be answered by pointing to article 908, supra; true, that is a specific answer to these two cases, but is not an answer to the proposition contained in- them, that the acts of officers of former governments will be respected until want of authority is satisfactorily shown. Hor is it an answer to the great line of cases which say, that individuals shall not attack titles procured in fraud; that only the government could -do that. What do the courts mean when they use such language? It is not, we imagine, to protect perfect titles; they protect themselves. There must be a class of titles that are not perfect, not titles that are irregular, but titles that are in some material particular defective, which, according to technical law, would avoid the title. Bub we dare say, that there is no case where the face of the title was perfect that it has ever been successfully assailed.

We invite the attention of the court to the following sections of the colonization law of 1825, under which the title being debated was authorized and issued: Sec. 24, Colonization Law of 1825, Pasch. Dig., 586, authorizing sale of eleven leagues, and note thereunder.

Border and littoral leagues excluded from sale save by consent of federal executive: Id., art. 569, sec. 7.

Issuance of land titles under said law: Sec. 4, Instructions to Commissioners, Pasch. Dig., 614; Holliman v. Peebles, 1 Texas, 699.

Ho lands could be granted without the consent of empresarios, even though grants thereof should be authorized by the executive. Pasch., Dig., art. 639 (this article of the law was withdrawn May 16, 1835); Id., art. 640.

*402 In Edwards v. James, 7 Texas, 372, Chief Justice Hemphill refers to the clouds that obscured the legal heavens in regard to the power of Mexican officials over the subject of land titles.

He also affirms the power of the ayuntamiento to certify a basis for concessions, and then proceeds: “The only remaining objection [to

the title] is, that the title was extended by the first regidor; whereas the commission was directed to an alcalde, and that the grant is therefore void for the want of authority in the granting officer. It is sufficient to say, in answer to this objection, that the commission is directed to an alcalde, and it may therefore be executed by one who is charged by law with the powers and duties of that office. In case of decease, legal impediment, or vacancy of the office of alcalde, his place was filled by the regidor.”

This decision manifests the legal truth, that these commissions to issue land grants were directed to officers of government and could be executed by their successors, were impersonal, not individualized, but were directed to a depository of power, to be drawn on, and when drawn on and put in motion, the powers were executed officially at the discretion of the officer. Art. 11, dec. 262, Laws Coahuila and Texas, p. 238; Id., art. 6, dec. 124, p. 144.

But 3. The claim of plaintiff in error is subsequent to the State Constitution. Haurick’s title can not be questioned in this suit. It is good against plaintiff in error. Const., art. 14., sec. 2.

BROWN, Associate Justice.

—Upon the motion for rehearing in this case, the defendant in error presents the question for our consideration, that if the grant made to Rafael de Aguirre in Williamson County be void, it is nevertheless such title as is protected from the claim of plaintiff in error under the Constitution. We have therefore concluded to submit to counsel for both parties the following questions, to be argued orally or in writing, as they may choose:

1. Assuming that the grant under which defendant in error claims, was issued after a prior valid grant had been made to the same party under the same authority, and that it is therefore void, is it titled land, or is it equitably owned under the provisions of article 34, section 2, of the Constitution ?

2. If it comes within the terms of the Constitution as to the location of certificates, will the prohibition therein apply to the claim of plaintiff as a pre-emptionist or claimant of a homestead under the Act of May 26,1873, entitled “An act for the benefit of occupants of the public lands?”

Arguments allowed herein will be confined to the foregoing questions, and will be heard on such day as counsel may agree upon, or that may be hereafter fixed by the court in case no agreement is had.

Addendum

*403 ON REHEARING.

A. S. Fisher, for plaintiff in error. —Counsel discussed art. 18, Plans and Powers of Prov. Gov. of Texas, 4 Sayles’ Stats., 145; Const. 1845, art. 7, sec. 21; Const. 1861, art. 7, sec. 21; Const. 1866, art. 7, sec. 21; Const. 1876, art. 13, sec. 5; Const. 1876, art. 16, sec. 18, iu connection with sec. 2, art. 14, Const. 1876; Pasch. Dig., art. 809; Adams v. Railway, 70 Texas, 272; Summers v. Davis, 49 Texas, 541; Truehart v. Babcock, 51 Texas, 169; Westrope v. Chambers, 51 Texas, 178; Galloway v. Finley, 12 Pet., 293; Jackson v. Clark, 1 Pet., 636; Taylor’s Lessees v. Myers, 7 Wheat., 26; Lindsey v. Miller, 6 Pet., 675; McArthur v. Dunn, 7 How., 270; Winsor v. O’Connor, 69 Texas, 571; Day Land and Cattle Co. v. The State, 68 Texas, 525; Railway v. Locke, 74 Texas, 370.

A study of these cases will show, that no case has been decided by this court which holds that the effect of section 2, article 14, of the Constitution, is to confirm a grant which at such time was absolutely void.

We maintain, that it was not the purpose of the constitutional convention by this section to grant any land, or to do other than confirm an imperfect right then in existence, or a grant voidable only.

When there is an absolute want of authority in the person assuming to act, he is neither a de jure nor a de facto officer; in other words, he is a mere usurper, whose acts confer neither right nor color of right, neither an apparent right in law, nor a colorable right in equity.

To hold that this pretended grant was confirmed, would be to hold that it was granted. If it was void, it was never granted, because it was not an act of Coahuila and Texas, but it was the act of Lesassier, acting without any authority whatever. There being no authority in him to grant, it can not be said to be either titled or equitably owned under color of title, as the term, sovereignty of the State, has reference to both title and color of title. '

The Constitution, section 2, article 14, makes no distinction between lands titled and equitably owned under color of title; they both stand upon the same plane, and to come within the protection of article 14, section 2, there must either be in law a title or in equity a title.

A pretended grant extended to a person without right in him to take, and without semblance of authority in the officer assuming to extend, can not be said to be either “titled land or land equitably owned,” when no title whatever passes either in law or equity.

As said by Justice Robertson, in the case of De Court v. Sproul, 66 Texas, 370: “A void grant is a mere vacuity; its issuance leaves the title in the State.”

It is said by Justice Brown, in the case of Dawson v. McCleary, 87 Texas, 524: “If the corporation had performed all of these acts, the surveys made, without the certificate being issued by the Commissioner of the General Land Office, were without authority and void. The *404 defendant had no right, legal or equitable, in the land. It is suggested by the Court of Civil Appeals, that this land being ‘equitably owned’ by defendant Skinner, was not subject to location under section 2, article 14, of the Constitution of 1876. The claim here presented does not come within the provisions of the Constitution. Adams v. Railway, 70 Texas, 272. In the case last cited, the court say: ‘It must not only be claimed under such color of title, but the facts which give color of title must also give equitable ownership, or the provision of the Constitution does not give protection.’ This was an attempt to appropriate land without any lawful authority, and could not constitute color of title. The land, was subject to location by plaintiffs.”

The following cases hold that avoid title is neither title nor color of title, and confers no right, and will not even support a defense of limitation under the three years statute. Smith v. Power, 23 Texas, 30; Marsh v. Weir, 21 Texas, 97; Bryan v. Crump, 55 Texas, 11; Parker v. Bains, 59 Texas, 15.

Does the prohibition as to the location of certificates apply to preemptionists or claimants of homesteads under the Act of May 26,1873?

Section 6, article 14, of the Constitution of 1876, is as follows: “To every head of a family without a homestead there shall be donated 160 acres of public land, upon condition that he will select and locate said land and occupy the same three years, and pay the office fees due thereon. To all single men of eighteen years of age and upward, shall be donated eighty acres of public land, upon the terms and conditions prescribed for heads of families.”

This section of the Constitution contains no proviso such as that contained in section 2, article 14, of the Constitution, evidently showing it to be the intention of the framers of the Constitution not to embrace within the terms of the proviso of section 2, pre-emptionists and claimants of homesteads. These terms, certificates, pre-emptionists, and claimants of homesteads, have had, since the beginning of our governmental laud system, well defined, separate, and distinct meanings, which have always been recognized by every department of government since its first organization. Evidently, therefore, it was the purpose of the framers of the Constitution, in using the term ‘ ‘ certificate, ’ ’ to give to it not only its technical meaning, but its meaning as commonly accepted and understood, and not to enlarge the proviso so as to include any other mode of acquiring land than by certificate.

It has been for years the policy of Texas to encourage the settlement of its lands by actual settlement, as well as to limit the right of acquiring lands by location of certificates. Johnson v. Eldrige, 49 Texas, 523.

It is not claimed that the exception or the proviso contained in section 2, article 14, includes eo nomine pre-emption and homestead claims. If such are to be included, it is so alone from construction.

We understand the rule to be, when the lawmaking power has prescribed a general rule with special disabilities or privileges affecting

*405 a particular class of things or persons, these can not be enlarged or extended to objects not embraced in the exception by mere implication or from parity of reason, and the affirmative description of the class of persons or things embraced within the exception must necessarily exclude all not comprehended within its literal meaning. Tyson v. Brittain, 6 Texas, 222; Snoddy v. Cage, 5 Texas, 107; Roberts v. Tarboro, 41 Texas, 450.

The Howell pre-emption, the one in controversy in this suit, was surveyed May 4,1876, under the pre-emption laws then in force. Subsequently, article 3936 of the Revised Statutes was enacted, as follows: “Ho person shall settle upon or occupy, nor shall any survey be made or patented under the provisions of this chapter (pre-emption), upon any land titled or equitably owned under color of title from the sovereignty of the State, evidence of the appropriation of which is on the county records or in the General Land Office; or when the appropriation is evidenced by the occupation of the owner or of some person holding for him.”

Article 3951, Revised Statutes, prescribes the same in reference to homestead donations. The Revised Statutes, however, did not take effect until the 1st of September, 1879; therefore this article can have no effect upon the rights of Howell, as his right had attached prior thereto.

We do not think that it can beheld that section 2, article 14, of the Constitution, is intended in any sense as a grant of land, and to make that a title which was before not a title, but void. It is but a reservation, if that. It does not operate upon the land, only in so far as it lias relation to land certificates, fixing thereupon a limitation as to time and as to character of land upon which they may be located; and as pre-emption and homestead claims are not expressly inhibited from location, and are not expressly included within the terms of the proviso, they can not be said to be included by construction, unless such claims must be held to be certificates, or unless the effect of the proviso is to absolutely grant laud which was not before granted.

Walton & Sill, for defendant in error.—1. On the first point we have to say: (1) If a grant originate through an officer of a former government, who, under the laws of such government, could be authorized to do the act he purports to perform, and lie acts in the capacity of one who could do the act, then the validity of such act must be tested by the face' of the documents which constitute this act, and no evidence aliunde the face of such documents can be received, save when such act is attacked by the State.

(2) That this rule has long existed in Texas and has become a rule of property, and the question taken the status of stare decisis.

(3) Section 2, article 14, of the Constitution of 1876, is but a declaration making organic law what the law had been by an unvarying line of decisions for full fifty years.

*406 In the ease of the Texas-Mexican Railway Company v. Locke, 74 Texas, .402, this court, after the most exhaustive investigation and elaborate opinion on the question before the court, lays this down to be the law of this State in regard to land titles emanating from a former government:

“Many titles in this State would be uprooted if the law upon this subject [attacks on Mexican titles] was as contended for by appellant [who occupied the position of plaintiff in error in the case before the court], and in view of the course pursued by the Governor of the State and other officials [of the former government], who must be presumed to have understood their powers, and in good faith acted upon them, nothing short of a law clearly showing an usurpation of power would justify our holding that their acts were invalid. We therefore hold that the court did not err, in view of the other evidence [documentary and from the former government] in this case, in refusing to exclude the documents offered, on the ground that the commission of Soto had been annulled before he issued the titles.”

The case quoted from, if it be not overruled, is decisive of the point now under discussion, both in and out of the presence of section 2, article 14, of the Constitution.

In that case, Fortunato Soto occupied the same position, viz., commissioner to distribute titles to the colonists in the colony of Beales and Grant, that Luke Lesassier did in the colony of Austin and Williams—only this, Lesassier was alcalde in addition to being commissioner. The court, in another part of the opinion, uses this very significant language, adopting what was said in Jenkins v. Chambers, 9 Texas, 234, viz: “The instructions to commissioners were repealed only so far as they were opposed to the provisions of the law of 1834— Decree 272, article 29, Laws Coahuila and Texas. Those [instructions] of the 4th September, 1827 [Id., decree, p. 70, under which Lesassier acted], were doubtless mainly intended for the government of commissioners for the distribution of lands to colonists proper. But their terms are sufficiently comprehensive to embrace, and they were made to embrace, other eases of concessions made under the law of 1825.” The reason of the law which required the colonization contract should be carried out in accordance with the law of 1825, undoubtedly applied with equal force to the concessions in this case. 441. We construe the court to say, and to mean to say, that under the instructions of 1827 the commissioners for the distribution of lands to colonists had authority to issue titles on concessions, that is, concessions made for lands to Mexicans who were not colonists. Colonists did not receive concessions. They were simply domiciled in the colony, and received titles to their lands by virtue of their being so domiciled, and reckoned in the number of settlers the colonial contractors had bound themselves to introduce to entitle them to their premium lands. Concessions were granted only in sale under article 24 of the colonization laws of 1825. Laws of Coahuila and Texas, 19. So when the court says, “But their *407 terms [instructions] are sufficiently comprehensive to embrace, and they were made to embrace, other cases of concessions made under the law of 1825,” it did say, and meant to say, that commissioners for the distribution of lands to the colonists were vested with authority to extend titles to those who were not colonists, but purchasers in sale by concessions from the Governor, under article 24, aforesaid.

Again, the court says as to void titles: “Grounds for forfeiture for noncompliance with conditions [conditions precedent] may exist. It may have been the intent of the grantees and Beales to acquire for him [under article 24] more land than the law permitted to be held by one person, and that on this ground forfeiture might be claimed by the State, or the holder of prior title or color of title; and it may be, and doubtless is true, that the commissioner issued title to lands not within the limits of the colony for which he was commissioner, and the grants in so far may be void; and it may be that the grants are situated within the limits then recognized by the authorities to be in the department of Bexar; but it does not follow, if all these things be true, that any of them can inure to the benefit of appellant,

“ The concessions which conferred the right to purchase, if the record speaks the truth, were valid, and Soto had power to issue titles, if the instrument evidencing his authority be not false; and however much he may have exceeded his authority, the lands are nevertheless, within the meaning of article 14, section 2, of the Constitution, ‘titled lands;’ ” citing Truehart v. Babcock, 51 Texas, 177; Westrope v. Chambers, 51 Texas, 187; Summers v. Davis, 49 Texas, 541; Winsor v. O’Connor, 69 Texas, 571. All of which cases we referred to in our original brief, on this motion for rehearing.

The court adds: “However defective the titles through which appellee’s claim may be, they show such facts as deprive appellant of the right of mandamus.” The lands were vacant and subject to location, or they were not vacant, but appropriated, and protected by the Constitution. The court says, that though the titles were void, because the commission of the officer had been annulled, because illegal and in violation of article 24, and because extended to lands outside the jurisdiction of the officer, yet the lands embraced therein come under the designation of “titled lands,” and are protected from certificate location by the Constitution. So we read the decision, not because we so wish to read it, but because the language used is susceptible of no other reading.

The case of Massey v. Railway, 7 Texas Civil Appeals, 650, construes article 14, section 2, of the Constitution. In 1858 the Texas Legislature passed an act relinquishing title to certain claimants under a Mexican title, providing therein, that the beneficiaries should cause surveys of the relinquished lands to be made in all respects conforming to the metes and bounds designated in the original grant. A survey was made, but embraced more land than was contained in the boundaries of the original grant. Location was made on lands inside *408 the survey, but outside the metes and bounds of the original grant; and the issue in the case was as to whether the land so surveyed, but outside original metes and bounds, was protected from location by the article of the Constitution before named. The court held the locations bad; and further, that the land was protected, on the ground that it was equitably owned, etc., under the survey; and this notwithstanding patent had issued on the location. Citing Winsor v. O’Connor, 69 Texas, 571; Adams v. Railway, 70 Texas, 253.

In Groesbeck v. Harris, 19 Southwestern Beporter, 850, the court rules: “Where certain surveys were located, and field notes returned to the General Land Office, though not recorded in the county where made, they would be protected by section 2, article 14, of the Constitution.”

Our conviction is, that the Constitution under discussion was ordained with an eye single to the quieting of land titles, in simple but full harmony with the rule of property long established, and in entire accord with stare decisis. One decision, well considered, and concurred in by an unanimous bench, on a specific subject matter, erects the bar of stare decisis. The rule is not inflexible, but should be adhered to, and not disregarded but on the fullest consideration and the conclusion reached that the law had been settled wrong. Sydnor v. Gascoigne, 11 Texas, 455; Smith v. Power, 23 Texas, 32; Burns v. Ledbetter, 56 Texas, 284.

But whether we be right in this, we doubt not that the first question submitted by the court is answered and settled by the authorities we have cited. We come fully under both clauses of section 2, article 14, of the Constitution.

(1) We have a title—written, valid on its face—whereby the government—taking the face of the title to be true—has parted with all its right in, fee to, and dominion over, the territory embraced within the boundaries set out in the grant.

(2) The land embraced in the grant is equitably owned by defendant in error, through a regular chain of title by grant from the sovereignty of the soil, by successive links of conveyance down to his ancestor, and by inheritance from him, covering a period of almost sixty-tliree years; and all this time no political step or proceeding in court has been taken by the State to annul, set aside, escheat, or cancel the title, she through all those years receiving taxes from the claimants on the land.

We believe the Constitution covers, guards, and protects us, and that we were protected by the law before the Constitution was adopted. If there were no other points in the case save those submitted by the court for argument, we should, from the standpoint of authority, confidently maintain that the shield of the Constitution interposes itself between us and the aggressions of certificate holders. If the State had attacked the title within a reasonable time,- before private and innocent rights had grown up, the question for decision would have been mate *409 rially different. But even then,' we should not at all have been hopeless of maintaining the title even against sovereignty itself.

2. Conceding that the title of defendant in error is void, but, coming under the designation of “titled laud,” is protected from certificate location under section 2, article 14, of the Constitution, is it also so protected from invasion and appropriation by pre-emption and homestead claimants under Act of May 26, 1873, entitled “An act for the benefit of the occupants of the public domain?”

(1) Without express legislative declaration, we see no reason in law, and as little in morals, why a donation should take precedence over or stand on a higher plane than the payment of an honest, genuine debt; that is to say, there is lack of reason in the idea, that where the State gives her public domain away, the donee should take more privilege than the holder of a genuine land certificate who is entitled to resort to the public domain as a creditor to obtain satisfaction of his debt against the State. In the one case, the donee receives a gift; in the other, the holder of the certificaté has value invested, either purchase money, services performed, or title by inheritance from one who had value invested. But if the law so enacts, that ends the matter, and we must deal with it as a legal fact. In this instance, however, we do not consider that the law itself so enacts, or that such a conclusion can be logically drawn from the words of the enactment.

(2) There is a legislative construction of section 2, article 14, of the Constitution, in regard to the rights of pre-emptors and occupants of public domain, viz., article 3936, Revised Statutes, as originally adopted. It is there declared, “Ho person shall settle upon or occupy, nor shall any survey be made or patented, under the provisions of this chapter, upon any ‘titled land/ ” etc., referring in the margin to the said article of the Constitution as basis for the enactment. Of course this was subsequent to the Act of 1873, but the substance (if not in hac verba) of that act was carried into the chapter of which article 3936 forms a part. The same prohibition is applied to homestead donations. Id., art., 3951.

(3) There are no specific or even general words or phrases in the Act of May 26,1873, which indicate a preference to pre-emptors or homesteaders over certificate holders. In other acts of the Legislature such preferences have been expressed; for instance, in chapter 52, Session Acts 1879, page 48, whereby lands in certain counties were set apart for sale, the proceeds to be applied to designated purposes, the first section contained this clause: “The provisions of this act shall not be so construed as to prohibit the right of pre-empting within the bounds of the reservation here made;” and giving pre-emptors the same right to enter the reservation that they had to appropriate the land before it was made. In the Act of August 17, 1876, page 168, the actual settler has the right reserved to him to enter where the certificate holder may not go. The enactment is, “That all reservations of the public domain for the benefit of any railroad or railroad company heretofore made *410 by law, and the right to which reservation has lapsed since January 1, 1872, or may hereafter lapse, are hereby declared then to have been severed from the mass of the public domain, and in the event of a forfeiture to the State, are by this act expressly reserved from location, except- the three millions of acres of lands reserved for constructing’ a new State capítol and other public buildings, and to actual settlers under the pre-emption laws,” etc. There are other reservations which contain exceptions in favor of the pre-emptor, actual settler, and homesteader, but those named show the policy, idea, and practice of the lawmakers on this subject, viz., that when a class of persons is to be favored, or excepted from the general rule, the favor or exception is made in express words by affirmative enactment.

The Act of May 26, 1873, “An act for the benefit of actual occupants of the public lands,” page 101, is lacking in express words that take the occupants mentioned out of the general rule, and we take it that they must abide in the status where the law leaves them. The first section is a mandatory order, requiring occupants at that date to return field notes within the time therein named, and regulating how patents may be obtained on the field notes so returned. The second section gives a right to make application for a homestead under the then existing law regulating that subject matter, and upon conditions named. Section 3 is a regulation as to the survey, and exempting the homesteader from any character of payment, save fees due the surveyor’s office and the General Land Office. Section 4 visits a penalty on the surveyor if he fail or refuse to make a survey, etc. The last section repeals all prior laws in conflict with the act.

(4) The keynote to the right of the occupants named in the law just mentioned comes out of the words “public domain,” as used in sections 1 and 2. These words are not preceded by the words “vacant and unappropriated,” that are used in the Constitution, but we do not deem that omission to be of any material significance. The virtue rests in the words “public domain,” whether prefixed by one term or another, unless the prefix embodies a preference or a prohibition. And this act embodies no prefix of one kind or another.

We then come in a simple and honest spirit to the consideration of the question as to what is the meaning of the words “public domain,” under the Constitution and laws of Texas.

The best legal discussion as to what these words “public domain” mean, that we have seen, is made in the case of Day Land and Cattle Company v. The State, 68 Texas, 526, et. seq., and the eases therein referred to, holding the term equivalent to “unappropriated public domain.”

BROWN, Associate Justice.

—The defendant in error has filed a motion in this court for a rehearing, upon the following grounds:

1. Because the court erred in holding, that- if Luke Lesassier made a valid grant of the eleven leagues of land to Rafael de Aguirre, on *411 the Brazos River, his power under the concession was exhausted, and. the subsequent grant to the same party by virtue of the same concession was void.

4. Because the court has passed on a point not raised by the assignments of error, nor passed on by the Court of Civil Appeals.

5. Because the point passed on by this court was not an issue raised, on the trial below, and was not and is not now an issue in the record by the pleading or assignments of error.

Upon the question as to whether the point decided is before this-court, counsel for the motion are in error. In the petition for writ of error, the want of power in the commissioner, Lesassier, to issue a second grant upon the concession, is made in this language: “The court erred in holding that Lesassier had power to issue a second title after exhausting the concession by his granting the eleven leagues to Rafael de Aguirre, on the Brazos.” (Counsel are aware that the decision followed Hanrick v. Jackson as to this particular, which this-court is respectfully asked to open.) The defendant below, Howell, assigned as error the charge of the court upon which this question arose. The Court of Civil Appeals says: “Appellant excepts to the entire charge of the court. We have considered those portions of the charge specially pointed out as objectionable.” And then proceeds-to pass upon the special charges requested by the defendant below, as-follows: “Special charge number 20 is the first called to our attention. This instruction contains several distinct propositions. The first of these propositions is as follows: ‘You are charged, that the grant to Rafael de Aguirre, of October 4,1833, on the Brazos, is a perfect and legal title, and that the extension of such grant exhausted the power of the commissioner, Lesassier, to extend title to Rafael de Aguirre by virtue of the concession of 14th June, 1830.’ We think the court’s charge sufficiently informs the jury that the grant to Rafael de Aguirre, dated October 4th, was a formal grant; that the extension of this grant exhausted the power of the commissioner conferred on him by the concession of 14th June, 1830, considered with reference to the testimony of this case, can not be maintained. Hanrick v. Jackson, 55 Texas, 31.”

It will be seen that the Court of Civil Appeals did actually pass upon this identical question. In the brief of counsel for plaintiff in error this point was distinctly urged, and this court was called upon to review the case of Hanrick v. Jackson. It is no doubt true that counsel for defendant in error considered the question as settled by the decision in Hanrick v. Jackson, and therefore did not discuss it in their brief.

We have carefully reconsidered the case upon this motion, and have examined the authorities cited by counsel, but we find no reason to change our opinion as heretofore expressed.

Able counsel, with great labor and research, as shown by their presentation of the question, have not presented to us any authority *412 for the position that an alcalde, as such, ever had authority under the laws of Coahuila and Texas to grant the eleven leagues title.

The only authority which Lesassier had was the concession issued by the Governor on the 14th of June, 1830. This was a special authority to do a particular act, which, when done, fully satisfied and exhausted the authority vested in him.

Article 14, section 2, of the Constitution, contains this language: “All unsatisfied genuine land certificates now in existence shall be surveyed and returned to the General Land Office within five years after the adoption of this Constitution, or be forever barred; and all genuine land certificates hereafter issued by the State shall be surveyed and returned to the General Land Office within five years after their issuance, or be forever barred; provided, that all genuine land certificates heretofore or hereafter issued shall be located, surveyed, or patented only upon vacant and unappropriated public domain, and not upon any land titled or equitably owned under color of title from the sovereignty of the State, evidence of the appropriation of which is on the county records or in the General Land Office, or when the appropriation is evidenced by the occupation of the owner, or of some person holding for him.”

This language applies alone to land certificates, and can not be construed to deny to any person the right to acquire any of the public domain subject to such acquisition by any lawful means, except by location under a land certificate.

We do not find it necessary in this case to determine whether this land would have been subject to location by a valid land certificate or not. In the view that we take of the case, the right of the defendant, Howell, to acquire the land under the Act of 1873, is to be determined independent of this section of the Constitution.

Howell’s survey was made, as appears from the record, on the 4th day of May, 1876. At that time there was no law which prohibited the acquisition of this land under the Act of 1873, if it was unappropriated public domain. Article 3951 of the Revised Statutes of Texas was adopted in 1879, after the survey was made for the defendant, Howell. If that article had been in force at the time the survey was made, it would have presented the question as to whether the title under which Hanrick claims was such as to prevent the acquisition of the land by Howell; but, as we said before, this nor any other law was in force prohibiting settlement upon this land at the time the survey was made.

If the title under which Hanrick claims had been issued by any person authorized to grant such titles for the State of Coahuila and Texas, then such title, although voidable at the election of the State, would not have been void. But since, as we hold, Lesassier had no authority to make a second grant under the concession of June 14, 1830, his act in making the second grant, if it be a fact that he had previously made a valid grant by virtue of the same concession, was without any authority on his part, and had no more effect than if it had been made *413 by a person who never had the semblance of authority; in that event this would be a void grant, and would not appropriate the public domain of the State. Smith v. Power, 23 Texas, 34; Dawson v. McLeary,. 29 S. W. Rep., 1044; Lindsey v. Miller, 6 Pet., 666.

The authorities cited by counsel for the defendant in error are cases, in which the grant was made by an officer who had authority under the law to make grants of land, and which were not void, but voidable. That which is void is of no effect, and can confer no right, and that which confers a right can not be void. It is true, that in Winsor v. O’Connor, 69 Texas, 571, Judge Stayton says that the patent issued was void, but this is one of the instances in which the word void is used not in the sense of its being a nullity, but as being voidable. It was issued by an officer who had the authority to issue patents, and although issued upon a certificate which itself was wrongfully issued, yet it was the exercise of authority intrusted to him by law. In that case, Judge. Stayton says: “Land is said to be ‘titled’ when a patent is issued, which on its face is evidence that the State has parted with its right, and conferred it on the patentee. For reasons not appearing on the-face of the patent, the grant may be void or voidable, but the land embraced in it is nevertheless ‘land titled.’ ” This language has particular-reference to the section of the Constitution quoted above, and that caséis decided upon the construction of that section of the Constitution.

In the case of Railway v. Locke, 74 Texas, 370, there was a valid concession for each grant of land, and the commissioner had authority from the Governor of Coahuila and Texas to make each grant. It was-charged, that the intention of getting the concessions to each one of the-parties was to enable Beales to acquire more land than was authorized by the law; and also, that a portion of the land lay outside of the district for which the commissioner was empowered to act. In that case, the concession was the evidence of title, as in this. The extension of' the title or the placing of the parties in possession of the land was the-act of the commissioner. There was, as before stated, a valid concession for each survey, and valid authority for -the act of the commissioner in extending the title to each.

The cases do not support the proposition, that a grant made without authority of the State, or by any person not empowered to make such grant, can confer any right whatever. If the fact be found that Le-sassier had made a valid grant under the concession in question to De Aguirre, upon the Brazos River, prior to the making of the grant now in question, then the attempt to make a second grant by virtue of that concession was wholly unauthorized, and did not in any way appropriate the land or confer any right thereto, and in that event it was public and unappropriated public domain, subject to appropriation by the defendant Howell at the time that his survey was made.

The motion for a rehearing will be overruled.

Overruled.

Delivered June 24, 1895.

Addendum

The defendant in error has filed a motion in this court for a rehearing, upon the following grounds:

1. Because the court erred in holding, that if Luke Lesassier made a valid grant of the eleven leagues of land to Rafael de Aguirre, on *411 the Brazos River, his power under the concession was exhausted, and the subsequent grant to the same party by virtue of the same concession was void.

4. Because the court has passed on a point not raised by the assignments of error, nor passed on by the Court of Civil Appeals.

5. Because the point passed on by this court was not an issue raised on the trial below, and was not and is not now an issue in the record by the pleading or assignments of error.

Upon the question as to whether the point decided is before this court, counsel for the motion are in error. In the petition for writ of error, the want of power in the commissioner, Lesassier, to issue a second grant upon the concession, is made in this language: "The court erred in holding that Lesassier had power to issue a second title after exhausting the concession by his granting the eleven leagues to Rafael de Aguirre, on the Brazos. (Counsel are aware that the decision followed Hanrick v. Jackson as to this particular, which this court is respectfully asked to open.) The defendant below, Howell, assigned as error the charge of the court upon which this question arose. The Court of Civil Appeals says: "Appellant excepts to the entire charge of the court. We have considered those portions of the charge specially pointed out as objectionable." And then proceeds to pass upon the special charges requested by the defendant below, as follows: "Special charge number 20 is the first called to our attention. This instruction contains several distinct propositions. The first of these propositions is as follows: 'You are charged, that the grant to Rafael de Aguirre, of October 4, 1833, on the Brazos, is a perfect and legal title, and that the extension of such grant exhausted the power of the commissioner, Lesassier, to extend title to Rafael de Aguirre by virtue of the concession of 14th June, 1830.' We think the court's charge sufficiently informs the jury that the grant to Rafael de Aguirre, dated October 4th, was a formal grant; that the extension of this grant exhausted the power of the commissioner conferred on him by the concession of 14th June, 1830, considered with reference to the testimony of this case, can not be maintained. Hanrick v. Jackson, 55 Tex. 31."

We have carefully reconsidered the case upon this motion, and have examined the authorities cited by counsel, but we find no reason to change our opinion as heretofore expressed.

Article 14, section 2, of the Constitution, contains this language: "All unsatisfied genuine land certificates now in existence shall be surveyed and returned to the General Land Office within five years after the adoption of this Constitution, or be forever barred; and all genuine land certificates hereafter issued by the State shall be surveyed and returned to the General Land Office within five years after their issuance, or be forever barred; provided, that all genuine land certificates heretofore or hereafter issued shall be located, surveyed, or patented only upon vacant and unappropriated public domain, and not upon any land titled or equitably owned under color of title from the sovereignty of the State, evidence of the appropriation of which is on the county records or in the General Land Office, or when the appropriation is evidenced by the occupation of the owner, or of some person holding for him."

Howell's survey was made, as appears from the record, on the 4th day of May, 1876. At that time there was no law which prohibited the acquisition of this land under the Act of 1873, if it was unappropriated public domain. Article 3951 of the Revised Statutes of Texas was adopted in 1879, after the survey was made for the defendant, Howell. If that article had been in force at the time the survey was made, it would have presented the question as to whether the title under which Hanrick claims was such as to prevent the acquisition of the land by Howell; but, as we said before, this nor any other law was in force prohibiting settlement upon this land at the time the survey was made.

If the title under which Hanrick claims had been issued by any person authorized to grant such titles for the State of Coahuila and Texas, then such title, although voidable at the election of the State, would not have been void. But since, as we hold, Lesassier had no authority to make a second grant under the concession of June 14, 1830, his act in making the second grant, if it be a fact that he had previously made a valid grant by virtue of the same concession, was without any authority on his part, and had no more effect than if it had been made *413 by a person who never had the semblance of authority; in that event this would be a void grant, and would not appropriate the public domain of the State. Smith v. Power, 23 Tex. 34; Dawson v. McLeary, 29 S.W. Rep., 1044; Lindsey v. Miller, 6 Pet., 666.

The authorities cited by counsel for the defendant in error are cases in which the grant was made by an officer who had authority under the law to make grants of land, and which were not void, but voidable. That which is void is of no effect, and can confer no right, and that which confers a right can not bevoid. It is true, that in Winsor v. O'Connor,69 Tex. 571, Judge Stayton says that the patent issued was void, but this is one of the instances in which the word void is used not in the sense of its being a nullity, but as being voidable. It was issued by an officer who had the authority to issue patents, and although issued upon a certificate which itself was wrongfully issued, yet it was the exercise of authority intrusted to him by law. In that case, Judge Stayton says: "Land is said to be 'titled' when a patent is issued, which on its face is evidence that the State has parted with its right and conferred it on the patentee. For reasons not appearing on the face of the patent, the grant may be void or voidable, but the land embraced in it is nevertheless 'land titled.' " This language has particular reference to the section of the Constitution quoted above, and that case is decided upon the construction of that section of the Constitution.

In the case of Railway v. Locke, 74 Tex. 370, there was a valid concession for each grant of land, and the commissioner had authority from the Governor of Coahuila and Texas to make each grant. It was charged, that the intention of getting the concessions to each one of the parties was to enable Beales to acquire more land than was authorized by the law; and also, that a portion of the land lay outside of the district for which the commissioner was empowered to act. In that case, the concession was the evidence of title, as in this. The extension of the title or the placing of the parties in possession of the land was the act of the commissioner. There was, as before stated, a valid concession for each survey, and valid authority for the act of the commissioner in extending the title to each.

The cases do not support the proposition, that a grant made without authority of the State, or by any person not empowered to make such grant, can confer any right whatever. If the fact be found that Lesassier had made a valid grant under the concession in question to De Aguirre, upon the Brazos River, prior to the making of the grant now in question, then the attempt to make a second grant by virtue of that concession was wholly unauthorized, and did not in any way appropriate the land or confer any right thereto, and in that event it was public and unappropriated public domain, subject to appropriation by the defendant Howell at the time that his survey was made.

The motion for a rehearing will be overruled.

Overruled.

Delivered June 24, 1895. *414