Short v. W. T. Carter & Brother

• Decision Date: 30 November 1938
• Docket Number: No. 7503.,7503.
• Citation: 126 S.W.2d 953
• Parties: SHORT et al. v. W. T. CARTER & BROTHER et al.
• Court: Texas Supreme Court

126 S.W.2d 953

SHORT et al. v. W. T. CARTER & BROTHER et al.

No. 7503.

Supreme Court of Texas.

November 30, 1938.

COPYRIGHT MATERIAL OMITTED

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Suit by W. T. Carter & Brother and others against William H. McDonald, commissioner of the general land office, Earl H. Short, one Gholson and one Sullivan and others to enjoin the commissioner from issuing mineral leases to the other named defendants. Order granting temporary injunction was affirmed by the Court of Civil Appeals, 121 S.W.2d 486, and the named defendants bring error.

Judgment of the Court of Civil Appeals reversed; Order of the district court granting application for issuance of temporary injunction set aside and temporary injunction denied.

Henry H. Brooks, of Austin, Bryan, Suhr, Bering & Bell, of Houston, Wm. McCraw, Atty. Gen., and H. Grady Chandler, Russell Rentfro, and Henry S. Moore, Assts. Atty. Gen., for plaintiffs in error.

Baker, Botts, Andrews & Wharton, C. R. Wharton, Dillon Anderson, Vinson, Elkins, Weems & Francis, and Jno. C. Townes, all of Houston, and V. A. Collins, of Livingston, for defendants in error.

Williams & Williams, W. T. Williams, Jr., and Sterling Williams, all of Austin, amici curiæ.

SMEDLEY, Commissioner.

Defendants in error, the owners of the record title to more than 3,000 acres of land in a league of land titled to Andres Morales by the State of Coahuila and Texas in the year 1835, sued plaintiff in error McDonald, Commissioner of the General Land Office, and plaintiffs in error Short, Gholson and Sullivan (together with other parties who did not appeal from the trial court's order) in the district court of Polk County, to enjoin the Commissioner of the General Land Office from issuing leases to Short, Gholson and Sullivan upon applications filed by them, under the provisions of Section 8 of Chapter 271, Acts Regular Session of the 42d Legislature, approved May 29, 1931 (Article 5421c, Vernon's Annotated Texas Civil Statutes), for mineral leases of an area alleged by defendants in error to lie within the true boundaries of the Morales league and to conflict with land in said league owned by them, and for injunction against plaintiffs in error Short, Gholson and Sullivan to restrain them from further prosecuting their applications for leases or from executing any conveyances of interests in them. The applications for mineral leases were made on the belief of the applicants that the area is unsurveyed land not within the bounds of the Morales league. The parties will hereinafter be referred to as they were designated in the trial court.

The district court first heard and overruled a plea to the jurisdiction and a plea in abatement filed by the defendant McDonald Land Commissioner, and a plea in abatement filed by the defendants Short, Gholson and Sullivan. The grounds of the Land Commissioner's plea to the jurisdiction and plea in abatement are that only the Supreme Court has jurisdiction to issue a writ of injunction against the Commissioner of the General Land Office to restrain him from issuing a mineral lease; that the suit is in effect a suit against the State, in that the plaintiffs seek to have the court adjudicate that the State has no interest in the land described in the applications for leases and in that the plaintiffs undertake by injunction to restrain the Commissioner of the Land Office from performing duties imposed upon him by a valid statute to determine the boundaries of the land involved and whether the vacant area exists and thereafter to execute the leases; and that only the State of Texas can question the Commissioner's determination of such questions. For abatement of the suit the other defendants pleaded the pendency in a district court of Travis County of a suit filed by the State of Texas for the title and possession of the same land as that involved in this suit and an order which had been entered in the suit in Travis County overruling a plea filed by the plaintiffs herein by which they sought to abate that suit on account of the pendency of this suit. The defendants Short, Gholson and Sullivan also pleaded in abatement of this suit that the State of Texas is a necessary and indispensable party and that the suit is in effect against the State.

After the plea to the jurisdiction and the pleas in abatement were overruled the court heard evidence on the plaintiffs' application for temporary injunction and issued an injunction, restraining and enjoining the Commissioner of the General Land Office, pending final hearing of the cause on the merits, from granting mineral leases to any of the other defendants and restraining and enjoining the other defendants from further prosecuting their applications for mineral leases or from executing any conveyances of interests therein. The Commissioner of the Land Office and the defendants Short, Gholson and Sullivan appealed from this order. The appeal bond of the three defendants last named is so drawn as to indicate an intention or an effort to appeal also from the order overruling their plea in abatement. The order of the trial court granting the temporary injunction was affirmed by the Court of Civil Appeals, which held that Section 8 of the Act of 1931 (Article 5421c, Vernon's Annotated Texas Civil Statutes) gave the Commissioner no power to execute mineral leases covering the area described in the applications made by defendants Short, Gholson and Sullivan, that his threatened act to do so was a tort to which the State was not a party, and that the State was not a necessary party to the suit to enjoin him from performing such unauthorized act. The Court of Civil Appeals further expressed the opinion that there is no merit in the plea in abatement on account of the pendency of the suit in Travis County, because the issues in the two cases are not the same and a judgment in this case would not be res adjudicata of any issue presented in that suit. Sessums v. W. T. Carter & Bro., 121 S.W.2d 486.

The decision of the Court of Civil Appeals, that the Commissioner of the General Land Office was wholly without power to execute mineral leases upon the applications made by Short, Gholson and Sullivan and that therefore he could be enjoined from executing them, is based upon its construction of Section 8 of the Act of 1931 as giving preference rights to acquire mineral leases only upon areas which actually appear on the official Land Office maps as unsurveyed land. The first paragraph of said Section 8 provides that certain designated areas, as islands, salt water lakes, etc., "and all unsold public free school land, both surveyed and unsurveyed, shall be subject to lease by the Commissioner to any person, firm or corporation for the production of the minerals, except gold, silver, platinum, cinnabar and other metals, that may be therein or thereunder in accordance with the provisions of this Act and subdivision 2, Chapter 4, Title 86, Revised Statutes of 1925, relating to leasing public areas, insofar as same is not in conflict herewith". The provisions of the part of Title 86 here referred to need not be stated for they have no bearing upon the question under consideration. The second paragraph of Section 8 of the Act of 1931 is as follows: "Any person who discovers an unsurveyed area of school land which has not been listed on the records of the Land Office as school land, and is not in actual conflict on the ground with land previously sold or appropriated and which appears on the official Land Office map as unsurveyed land, may apply in writing to the county surveyor and have the same surveyed, and after the field notes thereof have been returned to the Land Office and approved and filed with the Land Commissioner, shall have a preference right for sixty (60) days thereafter to purchase a mineral lease thereon at the minimum price fixed by the Land Commissioner, in addition to the other consideration provided herein."

Taken literally, the words "and which appears on the official Land Office map as unsurveyed land" seem to mean that the Commissioner of the General Land Office is authorized by Section 8 to lease for minerals only those areas which are so delineated or so marked on the official Land Office maps that they are exhibited thereon and thereby as unsurveyed land. The phrase is not to be construed, however, apart from its context or without consideration of the other provisions of the Act. Winterman v. McDonald, 129 Tex. 275, 102 S.W.2d 167, 104 S.W.2d 4; Caples v. Cole, 129 Tex. 370, 102 S.W.2d 173, 104 S.W.2d 3; Humble Oil & Refining Company v. State, Tex.Civ.App., 104 S.W.2d 174, application for writ of error refused. Looking first to the provisions of the Act in general, we find that the caption, in so far as it relates to public school land, in substance describes the Act as intended to regulate the sale and lease of public school lands, to provide for the disposition and sale of minerals contained in all unsold public school land, both surveyed and unsurveyed, to prescribe preferences and forfeitures, to define surveyed and unsurveyed land, and to provide generally the method and means for the sale, leasing and development of the public school lands. Section 1 broadly provides that all lands set apart to the public free school fund and all of the unappropriated and unsold public domain, except river beds, lakes, etc., "are subject to control and sale under the provisions of this Act". Section 2 prescribes the method of selling surveyed public school land. By Section 3 surveyed and unsurveyed lands are thus defined: "Surveyed land within the terms of this Act is defined to be all tracts or parts of tracts heretofore surveyed either on the ground or by protraction, and set apart for the public school funds and which is unsold, and for which field notes are on file in the General Land Office or which may be delineated on the maps of said Office as such, and...