Cox v. Robison

• Decision Date: 27 November 1912
• Citation: 150 S.W. 1149
• Parties: COX v. ROBISON, Commissioner of General Land Office.
• Court: Texas Supreme Court

Page 1149

150 S.W. 1149

COX v. ROBISON, Commissioner of General Land Office.

Supreme Court of Texas.

November 27, 1912.

Original petition by A. A. Cox for a writ of mandamus against J. T. Robison, Commissioner of the general land office. Writ denied.

Gillett & Hudspeth, of El Paso, for relator. Jewell P. Lightfoot, Atty. Gen., and Jno. L. Terrell, Asst. Atty. Gen., for respondent.

PHILLIPS, J.

This is an original suit for mandamus to compel the issuance to the relator by the Commissioner of the General Land Office of an unconditional patent to 80 acres out of a section of land belonging to the public free school fund, situated in Culberson county and being in the "Pacific Reservation," referred to in article 3498a, Revised Statutes of 1895.

The relator's application to purchase, made under the provisions of title 87, c. 12a, Revised Statutes 1895, and amendatory acts, and not under title 71, relating to the sale of mining claims, or the public lands therein referred to as mining land, was filed in the General Land Office on May 25, 1907, and the land was awarded him on June 15, 1907. Prior to the time of the application, the land had been classified by the Land Commissioner, under the authority of law, as grazing land containing mineral deposits. It was appraised and valued as grazing land at $1.50 per acre. The application was made and the land awarded upon the Commissioner's classification and at such valuation. In connection with his application to purchase, the relator filed in the Land Office his affidavit that to the best of his knowledge and belief there were no minerals embraced in title 71 on the land, and therein waiving all rights thereto in the following terms: "That said land has heretofore been classed as mineral land, and believing there to be no mineral thereon, and hereby waiving all right to the minerals on said section to the state of Texas, should there be any mineral deposits of any character hereafter found in or on said land, and in the event of a sale to me of the foregoing land it is expressly agreed and understood that I acquire no right, title or interest in or to any minerals that are now or may hereafter be found to exist in or on said land."

The relator alleges that this affidavit and waiver were involuntarily executed by him, having been required by the Commissioner under article 3498n, which reads as follows: "Whenever any application shall be made to buy or obtain title to any of the lands embraced in article 3498a, except where the application is made under this title, the applicant shall make oath that there is not, to the best of his knowledge and belief, any of the minerals embraced in this title thereon, and when the Commissioner has any doubt in relation to the matter he shall forbear action until he is satisfied. Any such sale or disposition of said lands shall be understood to be, with the reservation of the minerals thereon, to be subject to location as herein provided."

On February 7, 1912, the relator duly tendered to the Commissioner the balance of the purchase money, with all accrued interest and the proper patent fee, and demanded the issuance in his favor of an unconditional patent to the land; that is, a patent without any reservation to the state of the minerals. The Commissioner having refused to issue such a patent, this action has resulted.

The question presented by the case is the constitutionality of article 3498n, above quoted. It is contended by the relator that upon the adoption of section 7, art. 14, of the Constitution, the state lost its power to enact laws providing for the reservation of minerals in the conveyance of its public schools, university, and asylum lands, and the other public lands referred to in article 3498a; that article 3498n, declaring that any sale of such lands, other than as mining claims, as provided in the other articles of the title, should be understood to be with the reservation of the minerals thereon, is accordingly unconstitutional; and that therefore relator is entitled to an unconditional patent.

Section 7 of article 14 of the Constitution reads as follows: "The state of Texas hereby releases to the owner or owners of the soil all mines and minerals that may be on the same, subject to taxation as other property."

If this provision was intended by the framers of the Constitution and the people who adopted it as a grant by the state to both the then and all future owners of the soil of all mines and minerals that might be in it, the state must be held to have been without authority to in any wise further control their disposition; and, if so construed, this section of the Constitution amounts to a limitation upon the power of the Legislature to enact laws of the character of the statute under review. If, however, it was curative in its nature and retrospective in its effect, and intended as an extinguishment of the rights of the state in only those mines and minerals in soil owned at the time of its adoption, the title of the state to all other mines and minerals in lands of the public domain remained unimpaired and unaffected; and its authority to provide by law that their reservation should be made in future conveyances of such lands must be recognized.

When it is recalled that the development of the mineral resources of Texas is still in a state of infancy; that even their meager disclosure to this time furnishes evidence that in them reposes a wealth whose rich extent in the day of its full ascertainment may give new character to the state's resources and materially transform its industrial life, and that there yet remains undisposed of in the hands of the state an immense public domain dedicated to the free education of its youth, whose mineral value is commonly estimated at a large amount and will endure for their benefit, should this legislation be upheld, but of which they will be deprived, to the benefit of purchasers and the encouragement of settlement, if it be held invalid; and that we are dealing, therefore, with a question, not only of present concern, but vital in its bearing upon the future of the state, whether viewed in relation to its educational interests or from the standpoint of those who shall hereafter come to inhabit these lands and compose its citizenship— it will be appreciated that the decision as to where, under the Constitution, the title to these minerals rests is of such consequence as to challenge the most serious consideration and constrain the court to a solicitous care for the accuracy of its conclusions.

The fundamental rule for the government of courts in the interpretation or construction of a Constitution is to give effect to the intent of the people who adopted it. The meaning of a Constitution is fixed when it is adopted; and it is not different at any subsequent time when a court has occasion to pass upon it. People v. Blodgett, 13 Mich. 127. Where its terms are plain and definite, that which the words declare is the meaning of the instrument. In such cases there is no room for construction; the words of the instrument lie before the court already molded to their use, and its province extends no further than the enforcement of the language as written. If the terms of a particular provision are ambiguous, and other parts of the instrument do not make them plain, under another well-established rule the court is at liberty to consider the prior state of the law, the subject-matter, and the purpose sought to be accomplished, as well as to consult the proceedings of the convention and the attending circumstances, for whatever extrinsic aid they may render the court in its effort to discover the true meaning of the provision.

It can with some reason be contended that the meaning of the phrase in this provision, "hereby releases to the owner or owners of the soil," is not plain; and upon this account we are authorized to make use of whatever proper information will help to make it certain.

We can better understand this provision if we understand its history. A full investigation has therefore been made into its sources, developing some features that possess interest, as well as influence, in the solution of the question. The provision is first found in the Constitution of 1866. It was repeated with but slight variation of language in the Constitution of 1869; and, as incorporated in the present Constitution, its language is substantially that of the original provision of the Constitution of 1866. As found in the Constitutions of 1866 and 1869, the provision was as follows:

Constitution 1866, § 39, art. 7: "That the state of Texas hereby releases to the owner of the soil all mines and mineral substance, that may be on the same, subject to such uniform rate of taxation, as the Legislature may impose. All islands along the Gulf coast of the state, not now patented, or appropriated by locations under valid land certificates, are reserved from location or appropriated (appropriation) in any other manner by private individuals than as the Legislature may direct."

Constitution 1869, § 9, art. 10: "The state of Texas hereby releases to the owner or owners of the soil all mines and mineral substances that may be on the same, subject to such uniform rate of taxation as the Legislature may impose."

The readoption in a subsequent Constitution of a provision found in the Constitution that it supersedes is presumed to have been with a purpose not to change the law; and the use of the same language is presumed to have been with the same intent. Cooley, Const. Lim. 75; Muench v. Oppenheimer, 86 Tex. 568, 26 S. W. 496; State v. Board of Assessors, 35 La. Ann. 651.

The convention that framed the Constitution of 1866 was called upon the proclamation of President Johnson, which did not require any part of its work to be submitted to the people for their ratification; and the ordinances that it adopted were therefore valid without a vote of the people. Quinlan v. H. & T. C. Ry. Co....