McGrady v. Terrell, Commissioner , 98 Tex. 427 ( 1905 )

This is an original suit by J.G. McGrady against J.J. Terrell, Commissioner of the General Land Office, for a writ of mandamus to compel the Commissioner to accept the relator's application to purchase a tract of land belonging to the free school fund of the State of Texas, particularly described in the petition. The relator alleges that on the 23d day of February, 1900, there was a tract of land consisting of 777.65 acres, situated in Fannin County, Texas, which was detached from all other public land and which belonged to the free school fund of the State of Texas. It is alleged that subsequently to that date and prior to the 12th day of December, 1904, the Commissioner of the General Land Office had sold small parcels off the tract which reduced it to 425.4 acres, and, being so reduced, the said tract of land was then detached from all other public lands, containing less than 640 acres, and was subject to purchase without actual settlement. It is also alleged that on the 12th day of December, 1904, the relator presented to the Commissioner of the General Land Office his application to purchase the said tract of land and in all respects complied with the law for the sale of the public free school lands of the State of Texas, except that he was not an actual settler thereon. It is further alleged that the Commissioner of the General Land Office rejected the application solely upon the ground that the applicant was not an actual settler upon the land, and because the said tract at the passage of the law of 1901, below referred to, contained more than 640 acres in quantity, therefore was not subject to sale under the terms of the fifth section of that act. A more extended statement of the facts is unnecessary to a decision of this case.

By the act entitled "An Act to define the permanent school fund of the State of Texas, to partition the public lands between said fund and the State," etc., approved February 23, 1900 (see General Laws of the Twenty-sixth Legislature, page 29), it was declared that "for the purpose of adjusting and finally settling the controversy between the permanent school fund and the State of Texas, growing out of the division of the public domain, there is hereby set apart and granted to said school fund four million four hundred and forty-four thousand and one hundred and ninety-five acres, or all of the unappropriated public domain remaining in the State of Texas of whatever character, and wheresoever located." Section 3 of that law provided that "all lands set apart and appropriated by this act shall immediately become a part of the permanent school fund, and when surveyed and sectionized, as herein provided, and classified and valued by the Commissioner of the General Land Office, shall be subject to sale in the manner now provided by law for sale of surveyed school lands, except where otherwise provided by this act."

The Twenty-seventh Legislature passed two laws with reference to the free school land of Texas; the first entitled "An Act to amend section 6, chapter 11, Acts of the Twenty-sixth Legislature," etc., approved April 15, 1901. Gen. Laws 27th Leg., p. 253. That act contained the following proviso: "Provided further, that all tracts or parcels of unsurveyed school lands containing 640 acres or less, and which are now or may hereafter become detached from other public lands, shall be sold at not less than $1 per acre, cash, without the conditions of actual settlement, as now provided by the law relating to the sale of other public school lands, or to actual settlers on the same terms and conditions that surveyed lands are sold to actual settlers. This proviso, however, shall not apply to school lands lying west of the 97th meridian of longitude." At the same session of the Legislature there was enacted another statute entitled "An Act relating to the sale and lease of public free school and asylum lands, and to repeal all laws and parts of laws in conflict herewith," approved April 19, 1901, Laws 27th Leg., 292, in which are the following sections:

"Sec. 7. All lands which are now or which may hereafter become detached lands shall be sold to actual settlers only on such terms and conditions as are now or which may hereafter be provided by law."

"Sec. 9. That all laws and parts of laws in conflict with this act are hereby repealed."

Is there a conflict between the proviso of the first act and the seventh section of the second, and was the proviso repealed by the ninth section quoted? We are of the opinion that the proviso and the seventh section of the second act do not conflict, and that the proviso was not repealed. This language, "All lands which are now or which may hereafter become detached," etc., is very broad and would include the lands designated in the proviso if there were nothing in the context to show a different intention on the part of the Legislature; but when considered in the light of the existing conditions, the provisions can be harmonized. The two laws having been passed at the same session of the Legislature, should be considered as if embraced in one act and should be so construed as that both may stand. Suth. Stat. Const., sec. 283. If considered separately, it would not be presumed that the legislators had undergone such a radical change of mind within four days as to destroy absolutely the provision which had been made for the sale of the lands in the previous act, unless the conflict is irreconcilable. Suth. Stat. Const., sec. 283.

In seeking for the intention of the Legislature it is proper to consider the context of these two acts as if one, and so treating them, we find that in the first act the Legislature was dealing with lands which had not been surveyed, and provisions were made for the selection and survey of those lands in order that one desiring to purchase might be able to present his application, whereas in the second act under consideration, the Legislature was dealing with lands that had been surveyed and sectionized as school lands, which required entirely different regulations from those that were unsurveyed. While it is true that all of the lands belonged to the free school fund of the State, yet it is manifest from the provisions of the two laws that the Legislature treated them as constituting two classes and made different provisions applicable to each class. Considering the two acts as dealing with different classes of school land, section 7 must be construed as applying to the surveyed school lands, and the word "all" must be understood as meaning all of that class. Bivins v. Lessee, etc., 15 Ga. 521; Townley v. State, 3 Harrison N.J.L., 314. The Georgia case is very much in point. The question was as to the construction of a statute which used the word "all" with reference to levies upon property and upon that statute the court said: "True, it says, that in all cases where a levy is made, etc. One is amazed, in casting a glance over our statute book, to find how often this form of expression occurs, frequently signifying, as here, not absolutely all — but all, of a particular class, only. Indeed, it seems to be common to all writings, — lay as well as legal, sacred as well as profane. And the generality of the phrase is frequently to be restrained in an act, not only by the context, but by the general form and scheme of the statute, as demonstrative of the intention of the Legislature. Here it means, in all cases where the claimant is in possession of the property, he shall not be deprived of it, but it shall be left with him." As in that case, there were different classes of claimants for the property, and the word "all" in its broadest sense would include both classes, so in this case there are two classes of school land and likewise in its broadest sense the word "all" would include both classes of land, yet, considering the scope of those laws and the purposes for which they were enacted, it is plain to our minds that the Legislature did not intend by the use of "all" in the seventh section of the second act to include lands which had not been surveyed.

Respondent rejected relator's application to purchase because at the date the law of April 15, 1901, took effect, the tract of land contained more than 640 acres. This ruling rests upon the contention that the terms of the statute as to quantity referred to the situation of the land at the time the Legislature enacted the law, and in support of that position the Attorney-General cites Garrett v. Weaver, 70 Tex. 463. In that case the Supreme Court construed the following language contained in section 1, chapter 52, General Laws, 1879, page 48: "That all the vacant and unappropriated land situated in the following counties * * * be and the same is hereby appropriated and set apart for sale * * * together with such separate tracts of unappropriated public land situated in organized counties of this State as contain not more than six hundred and forty acres." In delivering the opinion, Judge Stayton said: "That act placed all the vacant and unappropriated land in counties named in it on sale, as did it all the unappropriated land situated within the Pacific reservation, and it also placed on sale separate tracts of unappropriated public lands situated in organized counties, but not all unappropriated lands situated in such counties. Only such separate tracts in such counties as at the time of the passage of the act `contained not more than six hundred and forty acres, were offered for sale. The size of the separate tracts, in such counties at the time the act was passed, determined whether or not they were placed on sale, and the fact that a tract of greater area than 640 acres may subsequently have been lawfully appropriated to private ownership to such extent as to leave less than that area unappropriated, would not make this residue subject to sale." By that act the Legislature offered the land for sale, and it was correct to hold that the terms of the offer related to the situation of the land at the time the Legislature spoke. At that time none of the unappropriated public lands in the State were subject to sale except that which was offered by that law.

When the proviso under examination became the law, all of the school lands of the State had been offered for sale, and if we strike out the proviso, the land would be still upon the market. The effect of the proviso was not to offer the land for sale, but to prescribe conditions upon which a distinct class of persons might buy it. In connection with the words "containing six hundred and forty acres or less," are the qualifying terms "which are now or may hereafter become detached." This language plainly relates to the condition of the land at the time of purchase, and as the condition of quantity and of being detached must both exist at the time of the application for purchase, the effect of the provision was to prescribe that lands then detached, containing 640 acres or less, or lands thereafter becoming detached, and containing 640 acres or less, might be sold without the condition of actual settlement; that is, if the land was detached at the time the act was passed and contained no more than the specified quantity, it was subject to sale under that proviso; or if it became subsequently detached, and at the time of the application did not contain more than 640 acres, it might be sold under the same terms Thomas v. Wolfe, 16 Texas Civ. App. 22[16 Tex. Civ. App. 22]. In the case just cited, Judge Williams said: "Sales are required to be made to actual settlers only, except of such lands as are detached and isolated from other public lands which are permitted to be sold to any purchaser but corporations. In mentioning these lands, the statute uses the present tense, but in view of the scope and purpose of the law, and its other provisions, we think it should be held that this language has reference to the situation of the land at the date of the sale." It is not unfrequently the case that the present tense is used in describing past or future events, and it was especially appropriate in this case where the purchase might occur when the two conditions prescribed by the statute of quantity and separation both existed at the time the law was enacted, or it might be that the land sought to be purchased was not at that time either separated from public lands nor existing in a form designating the particular number of acres, but as in this case, by reason of sales made from a larger tract, it would be reduced within the number of acres prescribed and thereby detached from all other public lands. We are of opinion that the tract of land was subject to be purchased by the relator upon the terms proposed in his application, without the requirement of actual settlement thereon.

This construction is supported by the fact that the act, of which the proviso is a part, directed that in the sale of all tracts of land containing 2560 acres or less, it should be surveyed into 640-acre tracts, so far as it was capable of being so divided, whereby there would be in all probability many tracts of less than 640 acres detached from other public land, and under the construction claimed by the respondent none of these could be sold without actual settlement. We believe that such a course would thwart the purpose of the Legislature, which was to convert these small pieces of land in the settled portions of the State into an interest-bearing fund for the support of the public free schools. There are other good reasons which we might assign in support of our conclusion but we think it unnecessary to do so.

After writing the first opinion in this case, our attention was called to the proviso of the Act of April 15, 1901, which we had overlooked. Our first opinion not having been filed, is withdrawn and this is filed in lieu of it.

It is ordered that the writ of mandamus, as prayed for, be issued and that the relator recover of the respondent all cost of this proceeding.

Mandamus granted.