E. B. Logan et al. v. Stephens County, 98 Tex. 283

BROWN, Associate Justice. On Hay 14, 1883, Stephens County was the owner of four leagues of land, Nos. 1, 2, 3 and 4, situated in Crosby County, which were granted to Stephens County by the State of Texas for educational purposes. On the date named the Commissioners Court of Stephens County entered the following order: “It is ordered by the court that E. L.

Walker is hereby appointed commissioner for the sale of the Stephens County school lands situated in Crosby County and tó malte title to the same as aforesaid commissioner.” League No. 4 had been previously conveyed to parties, in consideration of the location of the said lands, and at the time was claimed by J. A. Stewart, who held that title under regular conveyances. C. W. Israel purchased from the county leagues Nos. 1, 2 and 3, and desired to purchase league No. 4 but would not take the title of Stewart, unless the county would deed the land to him, which it refused to do.

Afterwards Israel purchased league No. 4 from J. A. Stewart for $3000 cash, and E. L. Walker made a warranty deed for that league to Israel under and by virtue of the order before copied. Israel paid the consideration in cash to Walker, who paid it to Stewart, then the county treasurer of Stephens County, but Stewart did not account to the county for the money received from Walker, and Walker did not report the sale made by him of league No. 4 to the county.

Afterwards Israel sold league No. 4 to Fuller & Grant for a valuable consideration, which was then paid by Fuller & Grant, who purchased in good faith without nqtice of the facts concerning the sale by Walker to Israel and the failure d.£ Stewart to account for the money. Stephens County never did ratify or in any way confirm the sale of league No. 4 made by Walker. Stephens County instituted this suit in the District Court of Crosby County against the defendants to recover league No. 4.

The venue was changed to Callahan County and in the District Court of that county a trial was had without a jury and judgment was rendered for Stephens County for the land, which was affirmed by the Court of Civil Appeals.

Section 18 of

article 5 of the Constitution of this State commands that each county of the State be divided into four commissioners’ precincts, in each of which a commissioner shall be elected at each general election and “the commissioners so chosen, with the county judge as presiding officer, shall compose the commissioners court, which shall exercise such powers and jurisdiction over all county business as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed.”

Section 6 of

article 7 of the Constitution vests in the counties of the State full title to all lands theretofore or thereafter granted to such counties for “educational purposes,” and by this language confers upon each county the power to sell those lands: “Each county may sell or dispose of its lands in whole or in part, in manner to be provided by the commissioners court of the county.

Said lands and the proceeds thereof, when sold, shall be held by said counties alone as a trust for the benefit of public schools therein; said proceeds to be invested in the bonds of the United States, the State of Texas, or counties in said State, or in such other securities and under such restrictions as may be prescribed by law; and the counties shall be responsible for all investments; the interest thereon and other revenue, except the principal, shall be available fund.” If the Commissioners Court of Stephens County, under the provision of the Constitution quoted, had the power to confer upon E. L.

Walker the authority expressed in the order made by the court, as before copied, we are of opinion that the terms of the order are sufficient to enable Walker to make a complete title to the land; and the Court of Civil Ap« peals having found that Fuller & Grant, who purchased from Israel, were purchasers in good faith for a valuable consideration then paid, without notice of the facts which would impeach the sale as between Israel and the county, then the title of the plaintiffs in error must be sustained.

The Constitution, as before quoted, gives to the commissioners court of each county ample powers to sell the school lands of the county, but it in terms declares that the counties hold “the said land and proceeds thereof, when sold, * * * alone as a trust for the benefit of the public schools therein.” The county was in the attitude of trustee, for the benefit of the public school fund, in the handling and management of the land, and we must construe the power given to the commissioners court in accordance with the rules which govern trustees in the discharge of their duties.

Learned counsel, who represented the plaintiffs in error, have not contested the proposition that the Commissioners Court should not delegate its discretionary powers, unless the authority to do so is given by the Constitution. That proposition is so well established that we will ■content ourselves with referring to Fuller v. O’Neil, 69 Texas, 349, in which the subject is very carefully discussed by Chief Justice Willie.

But counsel have contended with earnestness (1) that the terms of the Constitution authorized the order under which Walker sold and conveyed the land, and (2) that the effect of the order was that the Commissioners Court exercised the power of fixing the terms of sale, which it was not necessary for the court to determine, therefore it does not delegate any discretion to be exercised by the agent. If either contention be correct, the plaintiffs in error ought to hold the land. If we eliminate from

section 6,

article 7, of the Constitution these words, “in manner to be provided by the commissioners court of the county,” there would not be in the Constitution any basis for the order in question; hence we must ascertain what those words were intended to express, in order to determine what the Commissioners Court might commit to Walker. “Manner” is the controlling word in the phrase and designates what the commissioners court might provide for. Webster defines manner as “mode of action; way of performing or effecting anything; method,” and the courts have given to that word its signification as defined by Webster.

People v. English, 139 Ill., 629; Wells v. Bain, 75 Pa. St., 54; Brown v. O’Connell, 36 Conn., 447.

In the case last cited, the following provision of the Constitution of the State of Connecticut was under examination: “The judges of the Supreme Court of Errors; of the superior and inferior courts, and all justices of the peace, shall be appointed by the general assembly, in such manner as shall by law be prescribed.” The Legislature of that State enacted a law by which the city council of Hartford was empowered to appoint a police judge for the city, and the constitutional ity of the law was in question in the case cited.

The Supreme Court of Connecticut held that the Legislature could not delegate the power to appoint the judges to the city council, and in construing that portion of the Constitution above quoted, thé court said: “The term 'manner’ is a comprehensive one, but it is evident that it has reference in that connection to the mode of doing the act prescribed—to the proceedings of the two houses of general assembly in making the .appointment—whether by ballot or by resolution, whether by joint or concurrent action of the two houses—and could not have been intended to authorize a delegation of the power to appoint any and all the judges to any officer or tribunal to whom they might think proper to delegate it.

The term 'appointed’ means, named or designated for or assigned to an office. The act of naming, designating or assigning is necessarily the direct act of the body or person by whom the appointment is made.

An appointment therefore by a common council, pursuant to a law of the general assembly, is not an appointment by the assembly, and the construction supposed would render the words 'by the general assembly’ superfluous.” So with reference to the constitutional provision now under consideration, the act of selling is necessarily the direct act of the county through its commissioners court, which is empowered to transact all of its business, and a sale by an agent would no more be a sale by the county than the appointment by the city council was an appointment by the Legislature.

It is, however, urged that the general authority to sell, which is given to Walker by the order, requires that he shall sell for cash and at the market price, which counsel for plaintiffs in error claim is such specific direction as shows that the county itself exercised the power of selling and performed all of the acts which required the exercise of discretion in making the sale. It is true that a general power to sell means that the sale must be for cash, but we know of no authority which holds that the power to sell real estate means that it is to be sold for the market value of the property at the time.

Such is the rule with regard to factors, but the object of placing the

article with a factor is that he may watch the market for the purpose of getting the best price. Bigelow v. Walker, 24 Vt., 149. If, however, it be granted that the general power to sell authorizes the agent to sell for cash at the market value of the property, it does not help the matter for the plaintiffs in error, because to determine what is the market value and other questions connected with the sale is a matter of discretion and judgment on the part of the seller. In Fuller v.

O’Neil, before cited, the validity of a sale made under a trust deed by an agent of the trustee, who was not present, being under consideration, the court said: “The grantor of the power is entitled to have his directions obeyed, to have the proper notice of sale given, to have it to take place at the time and place and by the person ■appointed by him. He gives these directions because he thinks that a sale made by the person selected, and under the circumstances stated, will be to his interest and make his property produce the largest amount of money.

Of the prescribed conditions, none is more important than that which requires that the trustee shall in person make the sale. He is chosen because of the confidence the grantor has in his integrity and discretion. The trustee, in making the sale, and during the time the property is under the hammer, is expected to protect the interests of the grantor, to see that no fraud is practiced detrimental to his interests, and that no improper bid is accepted, and that the property is not knocked off without giving fair opportunity for it to bring its reasonable value.

Perhaps the agent selected by the trustee to attend to this important matter is not one to whom the grantor himself would have intrusted it. He has reposed confidence in the party selected by him, and that confidence can not be transferred without his consent.

The trustee can no more absent himself whilst the sale is going on than he can make it at a time or a place or for a character of consideration different from that authorized in the deed. * * * The act thus performed is not merely ministerial, such ás is performed by a crier when the trustee is present directing and superintending the sale; but it requires an exercise of judgment and discretion in the matters mentioned, as well as in others.” The sale in that case was made at public outcry to the highest bidder, but the court in the forcible language quoted declared the act of selling to involve discretionary power.

With stronger reason the objection applies to a private sale with power to convey without approval of the trustee as in this case. While authority to delegate discretionary powers may be given by an individual to his agent, the power to delegate has not been conferred upon counties in the sale of school lands.

If the order had read that the agent, Walker, should sell for cash and for the market value of the property, it would not have relieved it from the objection that the trustee had no power to confer upon the agent the right to determine what is the market price, and whether the property should be sold at the market price of that particular day or time, or at some other day or time.

It is apparent, that, excepting the requirement to sell for cash, the order of the Commissioners Court of Stephens County vested in Walker all of the authority to sell the land that the Commissioners Court had under the Constitution, and was void because the county, as a trustee, could not give such authority to the agent. Mech. on Agency, sec. 362; Daylight Burner Co. v. Odlin, 51 N. H., 56.

It is not intended to limit the power, which has been granted by the Constitution to the commissioners court, to manage, according to its discretion and to the best advantage, the lands held in trust for the public free schools; but simply to hold, as we do, that the commissioners court can not commit their discretion in making sale to an agent. We find no error in the judgment of the Court of Civil Appeals, and it is affirmed.