M. McKenzie v. A. J. Baker, Commissioner of the General Land Office, 88 Tex. 669

GAINES, Chief Justice. —This is an application for a writ of mandamus to compel the respondent, the Commissioner of the General Land Office, to execute to the petitioner a lease of certain sections of land set apart for the benefit of the common schools. We will state briefly the substance of the petition, in so far as may be necessary for the determination of the cause. It. is alleged, that the petitioner made application to the respondent for the lease of the two sections of school lands for the term of two years, and bid therefor the sum of 2 cents per acre per annum, and that the respondent refused to accept the bid and to execute the lease, for the sole reason that the seventeenth

section of the Act of the Twenty-fourth Legislature in relation to the public school and asylum lands, passed on the 4th day of April, 1895, which authorized a lease at a minimum price of 2 cents per acre, was so amended by the act on the same subject, approved April 16, 1895, as to deprive him of authority to lease for a less sum than 3 cents.

After alleging a tender to the State Treasurer of the amount of the rent for one year in advance, the petitioner avers, that the amendatory Act of April 16, 1895, is void, for the reason that it passed the Legislature while the act which it proposes to amend was in the hands of the Governor, and before the ten days allowed by the Constitution for his action upon it had expired, and before he had acted upon the bill. The prayer is in substance, that the respondent be commanded to execute the lease in accordance with the petitioner’s bid.

The respondent excepts to the jurisdiction of the court, demurs generally to the petition, and pleads a general denial. The plea practically amounts to nothing, so that we have the case as if the facts were admitted. Sansom v. Mercer, 68 Texas, 488. The questions presented are: 1. Have we the power to grant the writ of mandamus against the head of a department? 2. Is the amendatory Act of April 16, 1895, void? 3. If both the preceding questions be answered in the affirmative, do the allegations of the petition make a case for awarding the writ prayed for?

These questions will be disposed of in the order in which they are here stated. 1. In 1881

an act was passed by the Seventeenth Legislature, which contained the following section: “Section 4. Ho court of this State shall have power, authority, or jurisdiction to issue the writ of mandamus, or injunction, or any other mandatory or compulsory writ or process against any of the officers of the executive departments of the government of this State, to order or compel the performance of any act or duty which, by the laws of this State, they or either of them are authorized to perform, whether such act or duty be judicial, ministerial, or discretionary.” Laws 1881, p. 7. The amendments to

article 5 of the Constitution, which were adopted in 1891, in defining the jurisdiction of the Supreme Court, among other changes, declared, that “The Legislature may confer original jurisdiction on the Supreme Court to issue writs of quo warranto and mandamus in such cases as may be specified, except as against the Governor of the State.” 85 Texas, 622. In pursuance of the power granted by that provision, the Legislature in 1892, in the act organizing the Supreme Court and defining its jurisdiction, enacted the following: “Article 1012.

The Supreme Court, or any justice thereof, shall have power to issue 'writs of habeas corpus as may be prescribed by law; and the said court, or the justices thereof, may issue writs of mandamus, procedendo, certiorari, and all writs necessary to enforce the jurisdiction of said court; and in term time or vacation may issue writs of quo warranto or mandamus against any district judge or officer of the State government, except the Governor of the State.” Laws 1892, p. 21.

In the new Revised Statutes, which were adopted by the present Legislature at its regular session, and which are now in force, both these provisions are incorporated without change—the one as

article 946, and the other as

article 4861. It is submitted, on behalf of the State’s counsel, who appear for the respondent, that

article 946, being inconsistent with

article 4861, is repealed by the latter. The argument suggested in support of this position is, that

section 4 of the Act of February 15,1881, was repealed by

article 1012 of the Act of April 13, 1892, which provided for the organization of the Supreme Court and defined its jurisdiction, and that since

article 946 is but a continuation of a former law,

article 4861 took effect last, and therefore operates as a repeal of the former article. The question so suggested we do not find it necessary to decide. The provision contained in

article 1012 of the Act of April 13,1892, did not repeal

section 4 of the Act of 1881. It restricted the operation of the former law in so far as it applied to the Supreme Court, and repealed it to that extent. That

section still operated as a limitation upon the powers of all other courts in the State, and remained a valid law. The commissioners who compiled the present Revised Statutes were directed, by the statute under which they were appointed, to embody in the revision the existing statutes without change of language, except in so far as was necessary to make them parts of a general body of laws. They were not empowered to insert either new laws or laws which had been repealed. They could not have omitted

section 4 of the Act of 1881, without transcending their authority. They might have amended it, by excepting the Supreme Court from its operation, as the Legislature had done by

article 1012 of the Act of 1892. This they did not do, and the two provisions were incorporated in the revision as reported, and were left unchanged by the Legislature which adopted it. So we have a body of statutes passed by the Legislature as one act, which contains two provisions not wholly but partially conflicting. As to the point of conflict, which of the two must yield? We are not able to distinguish the question from that which arises when two conflicting provisions are found in an ordinary statute. In construing it, all of its parts must be looked to for the purpose of discovering the legislative intent, and that intent when discovered must prevail.

Article 946 clearly manifests, that it was the purpose of the Legislature to pursue the policy, for which a way had been laid out by the provision quoted from

section 3 of

article 5 of the Constitution as amended in 1891, and which had been adopted by the Legislature in 1892, in defining the jurisdiction of the Supreme Court; and -to continue the power previously granted to issue the writ of mandamus to' the heads of the departments of the State government.

Article 4861, on the other hand, shows a purpose to exempt these officers from such writs, and if it stood alone, it is clear that the exemption would be absolute. In the ease of Railway v. Rambolt, 67 Texas, 654, the question was as to the jurisdiction of the District Court over a suit to recover the exact sum of $500, exclusive of interest. There was an irreconcilable conflict between

section 8 and

section 16 of

article 5 of the Constitution, in so far as they bore upon the question. For the reason, that in drawing

section 16 the attention of the framers of the Constitution was more particularly directed to the point of the exact limits of the exclusive jurisdiction of the County Court, the court were of opinion, that the intention there manifested should prevail, and that the conflicting provisions in

section 8 should yield. For a much stronger reason we should hold in this case, that

article 4861 does not override

article 946; for “the rule is, that where a general intention is expressed, and the act expresses also a particular intention incompatible with the general intention, the particular intention is to be considered in the nature of an exception.” Best, C. J., in Churchill v. Crease, 5 Bing., 177; also Railway v. Rambolt, supra, and cases cited; Stockett v. Bird, 18 Md., 484. This is no arbitrary canon of construction, but is a rule founded upon experience and sound reason. It follows from this rule, that

article 4861 should be construed to read, “Ho court in this State, except the Supreme Court, shall have power,” etc. This construction preserves both articles; and that construction should always be avoided by which any provision of a statute would fail altogether. We conclude, that we have power to issue the writ of mandamus against any head of a State department in a proper case. 2. We pass then to the second question.

It is substantially this: Has the Legislature power to amend a bill which has been passed by both houses and sent to the Governor for his action, within the ten days allowed him for its consideration, and before he has taken action upon it? In so far as it is restrained neither by the Constitution of the United States nor by that of the State, the Legislature represents the sovereign will of the people, and has the power to act at its discretion upon any subject of legislation.

He who claims that a statute has been passed in violation of some provision of the Constitution, should be able to point out the particular provision or provisions that have been infringed. It is not necessary that the act should be expressly prohibited; it is sufficient if it can be clearly implied, from one or more provisions of the organic law, that it was intended that the power to pass the act should be denied. The Constitution of this State nowhere expressly prohibits the Legislature from amending a bill which has been sent to the Governor, and which may become a law, before it has actually become such.

Does the exercise of such a power indirectly conflict with any provision of the fundamental law? Ho such conflicting provision suggests itself to our minds. We do not see that the exercise of the power can in any manner restrain or interfere with the prerogatives of any other department of the State government, or of any officer of the State, unless perchance it be those of the Governor. Does it restrict the Governor’s prerogative of approving or disapproving proposed legislation? We think it clear that it does not. Let us take this case as an example.

When the amendatory act was passed, the original act still being in the hands of the Governor, and the ten days allowed him for its consideration not having expired, it was in his power to let both become laws, or to veto the original act, and in the event that it was not passed over his veto, thereby to destroy both. Again, he could have let the original act become a law either by his approval or by nonaction, and might also have vetoed the amendatory act.

His powers were enlarged rather than restricted; for if the two houses of the Legislature had in the first instance tendered him a bill embodying their will as expressed in the latter act, he would have been compelled to accept or reject it as it was passed; whereas, in the actual case, he had the power in effect to accept the bill with the amendment or without it. Delivered December 2, 1895. When the amendatory statute was introduced it was too late to amend the original bill as a bill, because it had passed both houses.

It was the prerogative of the Governor to make it a law or permit it to become a law, or to veto it in his discretion. The Legislature could not in any manner abridge his power over that bill; and, as we have said, the amendatory bill had no such effect. Although the original bill was not yet a law, it was in process of becoming a law, dependent, however, upon the contingency, that the Governor would not veto it. If the Legislature saw fit to pass the amendment subject to that contingency, we do not see that any principle of the fundamental law was violated.

The effect of the amendatory statute was to express the intention, that in the event the original bill should become a law, it should be amended as prescribed in the act. Why may not

an act be passed, the operation of which is made subject to a determinate contingency? In McNeil v. The Commonwealth, 12 Bush, 727, the Supreme Court of Kentucky upheld the validity of

an act which was made dependent upon the enactment of a bill which had not then become a law. We conclude, that no just objection can be urged to the amendatory Act of April 16,1895, and that therefore the respondent had no power to accept the petitioner’s bid. Under that act he was not authorized to lease the lands at less than 3 cents per acre. This disposes of the case, and it is unnecessary to pass upon the third question. The writ of mandamus is refused. Mandamus refused.