John C. Underwood v. J. T. Robison, Commissioner of General Land Office et al., 109 Tex. 228

Mb. -Justice HAWKINS delivered the opinion of the court. The motion is for leave to file a petition for the writ of mandamus. Leave is refused because, in our opinion, the petition is without merit, in that it presents a question of law which plainly is controlled by previous decisions of this court. The question raised is this: Does the Act of 1913,

chapter 173, pages 409 et seq., relating to the prospecting of school lands and the development of minerals thereon, provide for ipso facto forfeitures of mineral' rights acquired under said statute, because of failure to comply with its requirements, or does the extinguishment of such rights, for such causes, await the action of the Commissioner of the General Land Office in making, upon the duplicate copy of the permit retained in the General Land Office, an'endorsement of such forfeiture? We hold to the latter view.

Said Act of 1913 does, indeed, declare that failure of the owner of the permit to comply with certain requirements "shall work a revocation of said permit and the termination of the rights of the owner”; but that declaration is followed, immediately, by the provision, "such termination shall be endorsed by the Commissioner of the General Land Office, upon a duplicate of the permit retained in the General Land Office.” The policy of our laws, as expressed in various earlier statutes relating to public lands, and as worked out and declared in several decisions of this court construing them, has been against ipso facto forfeitüres and in harmony with the theory that affirmative action by the Commissioner in expressly declaring a forfeiture, upon statutory grounds, and in duly making a statutory record thereof, must precede filings by other applicants.

The legislative purpose seems to have been to require an official ascertainment and record of such forfeiture rather than to leave open, indefinitely, the issue of forfeiture vel non, thereby perhaps placing upon holders of subsequently accruing rights the burden of proof. Adams v. Terrell, Commissioner, 101 Texas, 331, 107 S. W., 537; Erp v. Robison, Commissioner, 106 Texas, 143, 155 S. W., 180.

It is to be presumed that in the enactment of said mineral rights statute of 1913 the Legislature intended that said decisions and said settled public policy should be read into it, and that it should not be construed as contemplating ipso facto forfeitures. The motion is overruled.