Jackson v. Walker

• Decision Date: 21 April 1932
• Docket Number: No. 6053.,6053.
• Citation: Jackson v. Walker, 49 S.W.2d 693, 121 Tex. 303 (Tex. 1932)
• Parties: JACKSON v. WALKER, Land Commissioner.
• Court: Texas Supreme Court

Page 693

49 S.W.2d 693

JACKSON v. WALKER, Land Commissioner.

No. 6053.

Supreme Court of Texas.

April 21, 1932.

Original proceeding by F. B. Jackson, Jr., for a writ of mandamus against J. H. Walker, Land Commissioner.

Application refused.

R. J. Long, of Wichita Falls, and Coke Stevenson, of Junction, for relator.

James V. Allred, Atty. Gen., and George T. Wilson, Asst. Atty. Gen. for respondent.

SHARP, C.

This is an original proceeding filed by relator, F. B. Jackson, Jr., against J. H. Walker, Commissioner of the General Land Office, asking that a writ of mandamus be awarded commanding J. H. Walker, as General Land Commissioner, to approve and file relator's applications, field notes, etc., with reference to his application to prospect for oil and gas on a certain portion of the bed of Sabine river in Gregg county, Tex., and to grant him the permits requested in the application in the manner provided by law. Relator's application was made under and in accordance with the provisions of chapter 83 of the Acts of 1917, Regular Session, an act approved March 16, 1917, and all amendatory acts thereto.

Respondent rejected the application, for the reason that the area sought by relator was not subject to permit by reason of the enactment by the Legislature of chapter 22, Acts of the Third Called Session of the Forty-First Legislature (1929) known as Senate Bill No. 20 (Vernon's Ann. Civ. St. art. 5323b), which withdrew river beds from the operation of the mineral law. The pertinent parts of this act read as follows:

"Section 1. That the surface and the minerals therein of all river beds and channels, and of all unsurveyed public free school lands, and portions of the same, in the State of Texas, are hereby withdrawn from sale or lease until otherwise provided by law.

"Sec. 1a. Provided however that such withdrawal from sale and lease of unsurveyed public school land shall not apply in cases where application of inquiry has been heretofore made therefor and on which suit is now pending."

It is admitted that the Sabine river is a navigable stream within the meaning of the law in all that portion thereof described in relator's applications, and that in this area none of the survey lines of abutting surveys cross the river.

Relator frankly admits that, if chapter 22, supra, is valid, his claim was properly rejected by the respondent. However, he claims that section 1, and all parts thereof with reference to river beds and channels, is unconstitutional, upon the grounds: (1) Because this subject of legislation was not specifically submitted by the Governor to the Legislature at the special session thereof, at which the same was passed; and (2) because it was not approved and filed by the Governor, as required by the Constitution to make it a valid law.

Counsel for relator urge that the Governor, in his proclamation, calling the Third Special Session of the Forty-First Legislature, did not submit for their consideration the question of taking river beds and channels off the market, as was attempted to be done in chapter 22. Therefore the enactment of that act was in violation of article 3, § 40, of the Constitution, which reads as follows: "When the legislature shall be convened in special session, there shall be no legislation upon subjects other than those designated in the proclamation of the governor calling such session, or presented to them by the governor; and no such session shall be of longer duration than thirty days."

In the construction of the provision of the Constitution just quoted, it has been held that it is not contemplated that the Governor shall state the details of legislation in his proclamation convening the Legislature in special session, but only in a general way present the subjects for legislation. Brown v. State, 32 Tex. Crim. R. 132, 22 S. W. 596; Ex parte Fulton, 86 Tex. Cr. R. 149, 215 S. W 331; Long v. State, 58 Tex. Cr. R. 209, 127 S. W. 208, 21 Ann. Cas. 405.

However, it is not necessary to decide whether or not the Governor, in his proclamation convening the Third Called Special Session of the Legislature, or thereafter during such session, submitted to them this precise subject for legislation. The act in controversy is regular upon its face. It is regularly and properly signed by the President of the Senate and the Speaker of the House of Representatives, and duly authenticated by the officers of each house. It also bears the date when received in the Governor's office and in the office of the Secretary of State. No question is raised about these facts.

The question whether the validity of a statute, duly certified, approved, enrolled, and deposited in the office of the Secretary of State, can be impeached by a resort to the proclamation of the Governor or to the journals of the Legislature has been long controverted, and the decisions upon this question are conflicting. In several of the states of this Union, it is held that the courts will go behind the authenticated statute and ascertain from the proclamation of the Governor and the journals of both houses of the Legislature as to whether or not the law is valid. This is a very interesting question, but to review the decisions of the various courts bearing upon this question would prolong this opinion beyond its proper length.

The rule has long been established in this state that a duly authenticated, approved, and enrolled statute imports absolute verity and is conclusive; that the act was passed in every respect as designated by the Constitution; and that resort may not be had to the proclamation of the Governor and to the journals of the two houses to invalidate the law. This rule has been followed by the various courts of this state. Williams v. Taylor, 83 Tex. 667, 19 S. W. 156; Blessing v. City of Galveston, 42 Tex. 642; Usener v. State, 8 Tex. App. 177; Ex parte Tipton, 28 Tex. App. 443, 13 S. W. 610, 8 L. R. A. 326; McLane v. Paschal, 8 Tex. Civ. App. 401, 28 S. W. 713; Baldwin v. State, 21 Tex. App. 593, 3 S. W. 110; Day Land, etc., Co. v. State, 68 Tex. 526, 4 S. W. 865; Railway v. Foth, 45 Tex. Civ. App. 284, 100 S. W. 176; H. & T. C. Railway v. Stuart (Tex. Civ. App.) 48 S. W. 799; Presidio County v. Bank, 20 Tex. Civ. App. 511, 44 S. W. 1069 (writ den.); State v. Larkin, 41 Tex. Civ. App. 264, 90 S. W. 912 (writ den.); Parshall v. State, 62 Tex. Cr. R. 177, 138 S. W. 759; Moller v. Galveston, 23 Tex. Civ. App. 693, 57 S. W. 1120; Ball v. Presidio County (Tex. Civ. App.) 27 S. W. 702; City of Oak Cliff v. State (Tex. Civ. App.) 77 S. W. 26; Teem v. State, 79 Tex. Cr. R. 285, 183 S. W. 1144. The Supreme Court of the United States has also sustained this rule. Field v. Clark, 143 U. S. 649, 12 S. Ct. 495, 36 L. Ed. 294; Lyons v. Woods, 153 U. S. 649, 14 S. Ct. 959, 38 L. Ed. 854. This doctrine is supported by the authoritative decisions of the following states: California, Indiana, Kentucky, Mississippi, Montana, Nevada, New Jersey, New York, North Carolina, North Dakota, Pennsylvania, South Dakota, Utah, and Washington. 36 Cyc. 972, and Note 7.

The case of Manor Casino v. State (Tex. Civ. App.) 34 S. W. 769, is cited as authority that the Constitution prohibits the Legislature in special session from legislating upon subjects not presented to it by the Governor in his proclamation, or...