Galveston, Harrisburg & San Antonio Railway Company v. The State, 77 Tex. 367

HENRY, Associate Justice. —In December, 1878, appellant, a railroad corporation, located forty land certificates granted to it by the State upon public land lying in the county of Crockett. The certificates were for 640 acres each, and at the same time appellant caused to be surveyed forty alternate sections for the State. The field notes of the eighty sections were returned and filed in the General Land Office in March, 1879, and in June, 1880, patents were issued to appellant for its forty sections.

The State instituted this suit against the railway company in the form of an action of trespass try title to recover one-half of the forty sections patented to it. The defendant pleaded not guilty. The cause was tried without a jury and judgment was rendered in favor of plaintiff for the recovery of the land.

The record contains the conclusions of the judge, based on an agreed statement showing the following facts with regard to the public domain: “The unappropriated public domain amounted, in acres, on the 18th day of April, 1876 (that being the day the Constitution was adopted), to 71,961,277. “ Since said date it has been disposed of as follows: Surveyed by virtue of certificates and scrip, 54,713,741 acres; surveyed under pre-emption claims, 1,638,688 acres; surveyed for the University under grant made by the Constitution, 1,000,000 acres; surveyed for the University under Act_ of April 10,1883, 1,000,000 acres; lands surveyed and set apart for building the State Capitol, 3,050,000 acres; lands sold under the Act of July 14, 1879, 8,043,127 acres; surveyed and set apart for counties, as county school lands, under Acts of March 26,1881, and April 7,1883, and'other prior laws, 1,515,721 acres; surveyed for common school fund, under Act of April 10; 1883, 1,000,000 acres; total surveys for all purposes since April 18, 1876, 71,961,277 acres. “3.

That of the said 54,713,741 acres surveyed by virtue of certificates and scrip, there have been returned for the benefit of the school fund, in alternate sections surveyed by virtue of alternate scrip issued to railroad and other corporations, 20,967,199 acres. “4. That of said 54,713,741 acres surveyed by virtue of certificates and scrip as aforesaid, there were surveyed under and by virtue of what are known as Confederate scrip 3,411,156 acres, of which there were returned for the benefit of said common school fund 1,705,578 acres. “5.

That said 20,967,199 acres surveyed by virtue of alternate scrip issued to railroad and other corporations and returned as aforesaid for the benefit of the common school fund, and said 1,705,578 acres surveyed in alternate sections by virture of Confederate scrip and returned for the benefit of the common school fund, and 1,000,000 acres surveyed for said common school fund under said Act of April 10, 1883, together with 176,493 acres surveyed and returned for the benefit of the common school fund in the years 1876, 1877, and 1878, making in the aggregate 23,887,535 [a mistake in addition, the correct amount is 23,849,270] acres, constitute all the lands of said 71,961,277 acres of public domain that have been surveyed for the benefit of the common school fund since the 18th day of April, 1876. “ 6.

That of said 54,713,741 acres of public domain surveyed as aforesaid by virtue of certificates and scrip, there were surveyed for the benefit of railroads and other corporations and individuals 30,826,906 acres.” “8. The lands sued for in this action were located and surveyed at the time and in the manner and by virtue of alternate railroad scrip issued to defendant in the year 1877, as alleged in plaintiff’s petition. “9. There has been no partition of said 71,961,277 acres of public domain or any part thereof other than as herein stated. “10.

That of the lands that constituted the unappropriated public domain of the State of Texas immediately before the taking effect of the present Constitution of said State, as much as one-half of the same remained unsurveyed on the 17th day of December, 1878, after the sections part of which are sued for in this action and the alternates thereto had been surveyed for defendant.” We quote some of the provisions of the Constitution of 1876 bearing on the questions:

Section 3,

article 14: “The Legislature shall have no power to grant any of the lands of this State to any railway company except upon the following restrictions and conditions: “1. That there shall never be granted to any such corporation more than 16 sections to the mile, and no reservation of any part of the public domain for the purpose of satisfying such grant shall ever be made. “2.

That no land certificate shall be issued to such company until they have equipped, constructed, and in running order at least 10 miles of road, and on the failure of such company to comply with the terms of its charter, or to alienate its land at a period to be fixed by the law, in no event to exceed twelve years from the issuance of the patent, all said land shall be forfeited to the State- and become a portion of the public domain and liable to location and survey.”

Section 15,

article 7: "In addition to the lands heretofore granted to the University of Texas, there is hereby set apart and appropriated for the endowment, maintenance, and support of said University and its branches 1,000,000 acres of the unappropriated public domain of the Statej to be designated and surveyed as may be provided by law.”

Section 6,

article 7: “All lands heretofore or hereafter granted to the several counties of this State for education or schools are of right the property of said counties respectively to which they were granted, and title thereto is vested in said counties."

Section 57,

article 16: “ Three millions acres of the public domain are hereby appropriated and set apart for the purpose of erecting a new State Capitol and other necessary public buildings at the seat of government, said lands to be sold under the direction of the Legislature; and the Legislature shall pass suitable laws to carry this into effect.”

Section 6,

article 14: “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 upwards shall be donated 80 acres of public land upon the terms and conditions prescribed for heads of families.”

Section 2,

article 14: "All unsatisfied genuine land certificates barred by

section 4,

article 10, of the Constitution of 1869, by reason of the holders or owners thereof failing to have them surveyed and returned to the Land Office by the first day of January, 1875, are hereby revived.

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 issuance or be forever barred; provided, that all genuine land certificates heretofore or hereafter issued shall he located, surveyed, or patented only upon vacant and unappropriated public domain.”

Section 2,

article 7: “All funds, lands, and other property heretofore set apart and appropriated for the support.of public schools; all the alternate sections of land reserved by the State out of grants heretofore made or that may hereafter be made to railroads or other corporations of any nature whatsoever; one-half of the public domain of the State; and all sums of money that may come to the State from the sale of any portion of the same, shall constitute a perpetual school fund.” It is contended by appellee “that by the Constitution of 1876 there was unconditionally appropriated to the public free schools an undivided one-half of the unappropriated public domain within the State at the time said Constitution was adopted, in addition to such alternate surveys as should thereafter be reserved from grants to corporations.” It is insisted that the expression “one-half of the public domain” must be given all the force that the words imply, unrestrained and unmodified by what precedes them in the same

section or by what is found in other-articles of the Constitution. It is insisted that that clause in the Constitution is self-executing and had the immediate effect of appropriating to the school fund an undivided half of the then unappropriated public domain that was not otherwise appropriated by other provisions of the same Constitution.

The application of the proposition contended for is that of the 71,961,-277 acres then belonging to the unappropriated public domain 4,000,000-acres were appropriated by the Constitution for building a new capítol and to the University, leaving a balance of 67,961,277 acres, of which one undivided half, or 33,980,633 acres, were by the self-operating force of the Constitution appropriated to the school fund.

If no land was surveyed for railroad or other corporations, it is not contended that the Constitution appropriated more than one-half of the public domain; but if under the Constitution and laws corporations become entitled to grants of land, and such lands were surveyed, as they must have been, in alternate sections, it is contended that in addition to the alternate surveys set apart by the Constitution to the school fund, that fund became the owner of one-half of the other, or the railroad alternates, also.

In other words, if none of the public domain should be acquired by corporations, only one-half of it was intended to be or was in fact appropriated to the school fund. If all of it .was earned by corporations, then three-fourths of the whole was appropriated to the school fund. If less than the whole should be surveyed by corporations, then the school fund would own three-fourths of all that was so surveyed and one-half of the remainder. It is not easy to see why it was proposed to adopt such a rule of division, or if it was intended to be adopted why suitable language was not used to express it.

The convention could have forbidden the grant of any land to railroads. It had the power to appropriate either one-half or three-fourths to the school fund; and if it was intended that fund should have three-fourths of it, no reason is apparent why the quantity of the appropriation was made uncertain by its being made to depend upon the quantity earned by corporations.

If the purpose was to favor the school fund by giving it three-fourths this mode of appropriation would lead toward a defeat of such purpose, because its direct tendency would be by lessening the interest of the corporations to diminish the quantity earned by them, and in the same proportion that the corporations took less the school fund would have done the same thing. It stands to reason that if the design was to give the school fund three-fourths, or more than half, the Constitution would have been made to so-express in uncontingent and unambiguous terms.

The narrow rule of arriving at the meaning of an instrument by reference alone to any one clause, when it includes others relating to the same subject, can not be allowed in construing any written instrument, much less the Constitution. If it be true that the Constitution operated of itself to appropriate an undivided one-half of the entire unappropriated public domain to the school fund, as it is contended it did, then it necessarily follows that since its adoption there has been no unappropriated public domain.

Since then there has been no spot- in Texas upon which a man could set-down his foot without placing it on appropriated land. It is contended that the convention and people in creating the Constitution intended to accomplish that result. It is clear that they did not. It is equally clear that if they did so intend they also designed that the location of the public domain should cease; because, as we have seen,

section 2 of

article 14 of the Constitution contains a plain and positive command that “all genuine land certificates heretofore or hereafter issued shall be located, surveyed, or patented only upon vacant and imajpprojoriated^vMic, domain.” Did the convention intend to stop, or to even indefinitely delay, the location and survey of the public domain? If so, why does the Constitution provide, as we have seen it -does in the

section last referred to, for reviving “ all unsatisfied genuine land certificates ” that were then barred by the provisions of a previous Constitution? Why speak them into life and in the same breath forbid their location? Why urge the speedy location of the revived and all other land certificates, providing for their ex-tinguishment if not located within five years, and at the same time forbid their location for an indefinite or even a limited time?

When the Constitution was urging dispatch in the location of the public domain, even to the extent of extinguishing the right as a punishment for want of dispatch, is it reasonable to conclude that it intended to forbid locations until partition had been made of the public domain into two halves and one had been set apart to the school fund and the other for location, and at the same time neither made provision itself for such a partition or directed the Legislature to make it? If the school fund appropriates an undivided half'of the whole, so that no entirely unappropriated land can be found, how is

section 6 of

article 14 to be enforced? That section, as we have seen, donates “to every head of a family without a homestead 160 acres of public land.” The Constitution did not intend that an undivided half of the whole should vest in the school fund immediately upon its adoption, and still for each actual settler who so desired to take 160 acres of it. No more could it have intended that the settler, instead of taking the 160 acres promised him, should have an undivided interest of 80 acres in either the 160 acres or in the entire public domain. The record in this case shows that 1,638,688 acres have been appropriated by actual settlers under this

section of the Constitution. Was a title to an undivided half of these acres vested in the school fund by the Constitution and before their settlement? And may each settler be now sued by the State for title and partition? This court judicially knows that besides the alternate land certificates granted to railroad and other corporations prior to the adoption of the Constitution, there were large numbers of genuine and unsatisfied certificates that had been issued to people who had, under the laws in force, the right to have them located on the" unappropriated public domain in solid bodies.

Did the convention intend to repudiate these claims? To the very contrary, when the vitality of some of them had been destroyed by limitation, it revived them. But if an undivided half of the whole domain out of which they were to be satisfied was appropriated by one provision of the Constitution, and by another provision the owners were forbidden to locate them upon any land that had been appropriated, how were they to be satisfied? Why, then, were they recognized at all?

Even if the Constitution contained no prohibition against their being located on appropriated land, still if the school fund took on the adoption of the Constitution an undivided one-half interest in the whole domain, such certificates would, when located, instead of appropriating their quantity of land take only half of it, and that an undivided interest.

If, as is contended by the Attorney-General and as it was decided by the district judge, the Constitution vested title in the school fund to an undivided one-half interest of the whole, so that no location on it could be made so as to acquire title to the whole of the location, how was the right of counties to acquire lands recognized by

section 6 of the same

article to be enforced? Certainly the Constitution did not intend that counties should be either delayed or have less than the whole of the land located for them. With regard to counties the expressive language was used, “and title thereto is vested in said counties.” If the same result was intended the same thing could have been said about the lands devoted to the school fund. The Attorney-General contends that the Constitution from the date of its adoption held in abeyance all locations of the public domain until one-half of the whole had been partitioned and set off to the school fund.

If he is correct in his contention that the title to one-half of the whole vested in the school fund as an undivided owner by the adoption of the Constitution, it is true that such a partition would, in that view, have had to be made before other scrip owners could have located and acquired for themselves the full quantities called for by their certificates. But in the absence of any direction or provision in the Constitution for making such a partition, by whom and how was it to be accomplished ? As to the method, could it have been intended that the whole public domain should be surveyed and valued?

Values and not acres are the eriterions by which divisions of properties between tenants in common are made. If the State resorts to the remedy of partition, we can see no good reason why it should not observe the well known rules governing that remedy, which would require it to partition the whole of the land it claims in one suit in which all adverse interests are parties. We can not believe that the Constitution contemplates that any such suit should ever be prosecuted.

But still less do we believe that it contemplates that the State may have a separate suit for partition against the owner of every tract of land that has been located and surveyed since its adoption and recover judgment for one-half of the land, as it did in this case, on its claim to own an undivided half interest in the whole, without giving any account of the value of what it has received and still holds, and notwithstanding the fact that when the location it attacks was made there remained unlocated much more of the public domain than was required to meet its demand when measured by its own contention.

We do not mean to be understood as saying that the State must seek its remedy by a partition suit and subject to the ordinary rules of that remedy. What we do mean to say is that-when it may properly resort to such remedy, it must, unless specially relieved by law from their operation, be governed by such rules in the same manner that other litigants are.

Neither do we believe that it was ever contemplated that by the action of the Legislature or any officer of the government, by estimation, calculation, or otherwise, one-half of the public domain should be set apart for the school fund by counties, or bylines of longitude or latitude, or in any other manner, so that the lands subject to location would lie in bodies to themselves. We think if such an unaccustomed proceeding had been intended it would have been clearly expressed. To the contrary, it seems evident from the whole instrument that no such purpose existed.

Section 3 of

article 14 of the Constitution contains an express recognition of the power of the Legislature to grant lands to railroad corporations, but directs “ that no reservation of any part of the public domain for the purpose of satisfying such grant shall ever be made.” If by any means a separation of the public domain into distinct parts of two or more was practicable, so as to distinguish the land belonging to the school fund from that subject to location, it seems to us such designation of the particular part for the location of the railroad certificates would be such a reservation as is prohibited by this provision.

No doubt one cause of prohibiting a reservation or setting apart of certain lands for' the location of railroad certificates was to aid in distributing the construction of the roads to all parts of the State more than would be the case if the land earned by them lay only in one section. There have always existed with the people of this State three prominent •objects which, through their Constitutions and laws, they have worked to accomplish by means of the public domain. These objects were to secure immigration, promote education, and encourage the construction of railroads.

It can not be disputed that the Constitution of 1876 had in view not one alone but all of these objects, and one of them no more than another can be disregarded when engaged in the task of ascertaining its true meaning. The Attorney-General contends that one-half of the public domain was set apart for the benefit of schools by the Constitution. It must be admitted that 1,000,000 acres was set apart to the University and 3,000,000 for building a new Capitol. It will not be contended, however, that the claims of others had to be held in abeyance until the University and Capitol grants were satisfied.

The convention evidently did not believe that the general expression that lands for these purposes were set apart and appropriated would be self-executing, and therefore, with reference to the University land, it made the further direction that it should he “designated and surveyed as may be provided by law, ” and with regard to the Capitol lands it commanded the Legislature to pass “ suitable laws ” to carry the provision into effect.

We see no escape from the conclusion that had it been intended that one-half of the whole domain should be preserved intact for the school fund, some similar direction would have been made to give effect to such intention. The language used with regard to the Capitol and University lands is that they are “set apart,” and the same language is used in the very

section under discussion with regard to property previously appropriated, but not so with regard to “one-half of the public domain.” The conclusions of law upon which the judgment of the District Court in favor of the State was rendered are thus stated in the findings of the judge: “ When the Constitution was adopted the State owned nearly 72,000,000 acres of land that had never been surveyed or appropriated in any way, and was commonly designated as 'public domain.’ It seems to me that, according to the plain meaning of the language used, it should be held to grant an undivided half of the 72,000,000 acres, and that whatever other grants were made or authorized by the Constitution should be taken out of the other half after partition and segregation of the half so granted. “ It was evidently expected by the framers of the Constitution that as soon as practicable after its adoption the Legislature would provide for a partition of the public domain and have the moiety appropriated by the Constitution to the school fund surveyed and set apart from the balance; and if this had been done every provision of the Constitution could have been enforced without producing embarrassing results.” The Attorney-General in his argument filed in this court says: “As (one-half ’ of the public domain was unconditionally appropriated to the schools, appellant’s title to any of the land might be seriously questioned, for its surveys were made with notice that no partition had ever been made so as to give the school fund its part, and that therefore none of the lands it located were in fact or in law unappropriated.

If the State is content the appellant certainly ought to be.” In the year 1854 the Legislature passed

an act to encourage the construction of railroads by donation of lands. The act provided for a grant of sixteen sections per mile of constructed road, and directed that the surveys should be made in sections of 640 acres each, and that no location should be made unless at least two surveys connected together could be obtained.

The act required the surveys to be numbered by the Commissioner of the General Land Office from one upwards, and provided that “the even numbers shall be reserved to the State and the odd numbers granted to the company having such surveys made.” The Constitution of 1869 forbade the grant of land by the State to aid in the construction of railroads. This constitutional prohibition having been removed by an amendment of the Constitution authorizing the Legislature to make such grants, the Legislature, on the 18th day of March, 1873, passed

an act among other things providing that “all land certificates heretofore issued, as well as those hereafter issued to any railroad company or other corporation of any nature whatever for internal improvements or any other object, or any lands hereafter granted in any manner to any of said companies or corporations for any such object, shall be located and surveyed in alternate sections of 640 acres each and as directed by the Act of 1854.” No general law granting lands to railroads under the amendment to the Constitution was passed until 1876, after the adoption of the present Constitution, but subsequent to the amendment and previous to the adoption of the Constitution of 1876 many such grants were made in the acts chartering such corporations and were in force at the date of the adoption of the Constitution, and the lands under such grants were then in process of being earned.

It will be seen that the Constitution speaks of grants to railroads only by the use of the words “alternate sections,” without defining the meaning of the words themselves, or in any way explaining or defining how much or by what process land granted in that way was to be known or secured. It is a necessary inference that the words were used with reference to laws then in force explaining what was meant by “alternate sections,” and showing how they were surveyed and to whom they belonged when surveyed.

As we have seen, the general law on the subject referred for specifications in these particulars to the Act of January 30, 1854, by which the odd numbered sections of alternate surveys were “granted to the company having such survey made.” Interpreted by these laws the necessary construction of the Constitution in the use of the language, “set apart and appropriated for the support of public schools- all the alternate sections of land reserved by the State out of grants heretofore made or that may hereafter be made to railroads,” is that the school fund should have one

section and the corporation the other. It can not be disputed that the

interpretation of the clause was intended to be made in the light of existing and previous legislation on the subject. Even without such, aid the Constitution, standing alone, must by every recognized rule of construction be held to mean that one

section is to belong to the school fund and the other one to the corporation.

Construing the whole section, either by itself or in connection with all of the provisions of the Constitution by -which it may be affected, we are of the opinion that its true meaning and intention is that all then existing lawful claims should be surveyed out of the whole body of unsurveyed public domain, and that alternate surveys for corporations, pre-emptions, and lands granted to counties for educational purposes should be surveyed in the same way, until the Legislature had caused to be surveyed and set apart 4,000,000 acres for the University and new Capitol, after which these lands would be excluded from survey; and future surveys for any of the purposes enumerated would be confined to the unsurveyed portion of the public domain.

We believe that the object of the clause granting “one-half of the public domain” to the school fund was to reach and hold beyond legislative control whatever portion of the public domain remained after the execution of the enumerated purposes. It was known that existing claims that were entitled to be located in solid bodies would not appropriate but a few millions of acres and comparatively a small part of the whole. It was not believed that donations to the counties for school purposes and pre-emptions combined would consume more than a few millions, still leaving a large balance.

It was not known that railroad or other corporations would, under the system of making alternate surveys, consume all of the balance, and hence in order to reach any undisposed of quantity, after supplying the purposes mentioned in the Constitution, and to pre* vent the appropriation by the Legislature of more than half of such remainder to purposes not mentioned in the Constitution, said clause was put in, by which the Legislature is deprived of the power to appropriate more than half of the public domain that remains at any time to other purposes.

While the Legislature was bound at all times to respect locations already made by settlers under the pre-emption laws, and surveys made for counties for school purposes and those made for corporations, and all other vested rights, it was at no time required to abstain from disposing of the one-half that was subject to its control to await the acquisition of future claims for any of said purposes.

Whenever and however the Legislature undertook at any given period to disposed of what then remained of the public domain after the satisfaction of the then acquired rights, the Constitution required a recognition of the school fund’s claim to one-half of such remainder. The only partition or segregation of the interest of the school fund from the body of the whole public domain was intended to be made primarily through the system of alternate grants to corporations, which had long been in use and was at the same time the safest and the least expensive system that could be devised in behalf of the State.

In the next place, it was contemplated that with the power that existed in the Legislature at any time to provide for the sale of and make other proper disposition of the balance or unvested remainder of the domain, it would be easily within its power to provide for a division with the school fund until the last acre was gone. The Constitution trusted the Legislature in that respect, and as it provided no other remedy it must be held that the purpose was to abide by the division made under its direction, through whatever instrumentality it was accomplished.

If at any time a part of the remainder, as it then existed, has been devoted to a purpose not recognized by the Constitution without any recognition of the interest of the school fund in the act, and without its being otherwise provided for in any prior or subsequent law, the question thereby raised is different from the one before us and does not require an answer from us now.

Wot only is it incorrect to hold that the Constitution appropriated or intended to provide for the appropriation of one-half of the whole domain and in addition thereto one-half the corporations’ alternate surveys, but it is equally incorrect to say that it absolutely appropriated or intended that there should be appropriated a full one-half of the then unappropriated public domain for the school fund. As we have said, the provisions of equal dignity, and unlimited with regard to pre-emptions and counties, if not its recognition of the claims of private scrip holders, forbid such a conclusion.

The construction placed upon the Constitution by the Legislature, both as to what was granted to the school fund and the mode of partitioning and segregating the land to which it was entitled from the body of the public domain, has not been left in doubt. It caused an actual survey to be made of the grants for building a new Capitol and to the University.

The first Legislature that assembled after the adoption of the Constitution passed a general law granting to railroad companies 16 sections of land for each mile of road constructed, to be surveyed in alternate surveys, one to belong to the corporation and the other “to the State for the benefit of the public school fund.” The next Legislature disposed of all the lands in Greer County, appropriating one-half of them to the school fund. Act Feb. 25, 1879.

Again, the Act of July 14,1879, that directed the sale of all of the public domain in ¡Nolan and fifty-three other counties named in the act, set apart one-half of the net proceeds arising from the sales to the public free schools and the balance to the payment of the bonded debt of the State.

The Act of April 9, 188Í, granting lands to disabled Confederate soldiers made the required division by directing that the certificates should be located in alternate surveys, one of which was expressed in the act to be for “the benefit of the permanent school fund.” The act does not in words say that the other one shall belong to the soldier or owner of the certificate, but nobody has hesitated to give it that construction.

The quotations we have made sufficiently show that the Legislature interpreted the Constitution to intend that scrip holders, at the date of its adoption, were authorized to survey their certificates in solid bodies, and that it intended that the lands granted to settlers and to counties should be surveyed in solid bodies, and that railroads were entitled to hold the alternate sections surveyed by them, after which the remainder of the public domain was to be equally divided by some appropriate direction of the Legislature by which it was disposed of.

The only instance in which the Legislature failed to provide for such partition that has come under our observation was in the Act of April 36, 1876, commonly known as the Veteran Act, by which the certificates granted were allowed to be located in solid bodies, without regard to any claim of the school fund.

It will be seen from the agreed statement of facts included in the findings of the court that of 71,961,277 acres of unappropriated domain, or the 67,961,277 acres that it is claimed was to be equally divided with the school fund, 54,713,741 acres were surveyed by virtue of scrip, of which the court finds the school fund received only 23,887,535 acres.

It is evident that the failure to get the full half of the 54,713,741 acres must have resulted from, the location of such scrip as the Constitution and laws authorized to he located in solid bodies; the quantity that was so located is not shown by the record before us. It is not claimed or shown that the school fund has not acquired its full one-half of all the lands surveyed by corporations.

In some respects we do not think that the conclusions from the facts agreed upon by the parties or as found by the court give a quite correct representation of how much less than half of the original 71,961,277 acres, or, as diminished by the Capitol and University grants, of the 67,961,277 acres, the school fund has received. In the first place, we think the quantity ought to be still further diminished by the 1,515,721 acres and the 1,638,688 acres surveyed for counties and settlers under other provisions of the Constitution, thus reducing the quantity to 64,806,868 acres, one-half of which is 32,403,434.

It seems quite clear that to the estimate of what the school fund has received ought to be added at least one-half of the 8,043,563 acres sold under the act of July 14, 1879, one-half of the proceeds of which was directed to be paid to the school fund. This makes the quantity actually received by the school fund amount to 27,871,552 acres.

This calculation® leaves the school fund 5,282,153 acres short of one-half of the public domain not consumed by specified appropriations under the direction of the Constitution—a deficiency that we are left to conclude was created mainly by the location of land scrip authorized by the Constitution and veteran scrip directed by the Legislature, both in solid bodies. The record before us fails to show what quantity of veteran- scrip was so located.

Instead of devoting only one-half of the 8,043,127 acres sold under the Act of July 14,1879, to the school fund and appropriating the other half to the payment of the public debt, it was certainly within the power of the Legislature to have appropriated the whole of it to the school fund. If that had been done that fund would be very little short of having in fact received full one-half of the whole. It is not clear that a proper construction of the concluding words in

section 2 of

article 7, reading, “and all sums of money that may come to the State from any portion of the same,” does not make the whole of the proceeds of all sales of the public domain belong to the school fund. Speaking for myself, I think a correct construction of the last two clauses, reading, “one-half of the public domain, and all sums of money that may came to the State from the sale of any portion of the same, shall constitute a perpetual public school fund,” does appropriate the whole instead of one-half of the proceeds of such sales to said fund.

While it remains land it is one-half, but if the land shall be converted into money, then it is the whole. The meaning must be determined by answering the inquiry, to what do the words “any portion of the same” refer? To construe them as referring to the expression “one-half of the public domain ” is to make the last clause surplusage and of no effect, as without them the preceding expressions would unquestionably include the proceeds when it should be sold as well as the land itself.

Some effect can be given the last clause only by making it refer to the words “public domain,” and it ought to be given some effect rather than to make it meaningless and surplusage. There is nothing inconsistent with other parts of the same

section or with other parts of the Constitution in so construing the clause, and indeed it might well have been considered a useful means of equalizing the division of the domain, when making it, as was intended, through the passage of laws rather than by actual surveys of the ground. If a wrong to the school fund has been committed in this respect, it is still in the power of the Legislature to repair it.

If we are right in the conclusion that the Constitution left it for the Legislature to make the division of the public domain, subject alone to such rights and limitations as the Constitution itself recognizes, it results that what it has done in the premises must be held final and binding on the State. It will be conclusively presumed that through such division the school fund has acquired all of the domain that it was entitled to under the Constitution.

It is proper to say in conclusion, that no disregard of any mandate, of the Constitution, by either the legislative or the executive departments of the State government, however often repeated or long continued, can be for one moment tolerated by the judicial department as a reason for a like disregard of it by that department.

But when, as in this case, seven successive Legislatures have through a period of thirteen years acted upon a given construction of the Constitution; when the department entrusted with the immediate administration of the land system of the State has uniformly concurred in that construction; and when successive Governors of the State, eminent for their patriotism and intelligence (more than one of them having first served with distinguished success in this court), have approved it, we feel that nothing less than an absolute conviction that they have all been wrong would justify us in so deciding.

The duty to decide correctly was as incumbent on them as it can be on ourselves. The people who made the Constitution, with the knowledge of the construction that was being given to it, have without protesting year after year sent up to the capital other Legislatures to pursue the same policy. The lands have been assessed and taxes upon them have been demanded and received by the State, and the people, with unhesitating trust in the intelligence and honor of the State government, have bought and sold them.

Our opinion is that the judgment of the District Court ought to be reversed and judgment here rendered in favor of the defendant, and it is so ordered. Reversed and rendered. Delivered December 13, 1889. Chief Justice Stayton dissenting—at the time stating he would file dissenting opinion.