Smissen v. State

• Decision Date: 19 June 1888
• Citation: 9 S.W. 112
• Parties: SMISSEN <I>v.</I> STATE.
• Court: Texas Supreme Court

9 S.W. 112

SMISSENv.

STATE.

Supreme Court of Texas.

June 19, 1888.

Appeal from district court, Travis county.

Action by the state against M. Z. Smissen, upon leases of land belonging to the public school fund to recover the rent. Judgment for plaintiff, and defendant appeals. The legislative power claimed to have been improperly delegated to and exercised by the state land board, mentioned in the opinion as the second and third questions to be decided, was the increasing of the minimum rental fixed by the legislature.

Hancock, Shelley & Hancock, for appellant. J. S. Hogg, James H. Robertson, and H. B. Marsh, for appellee.

STAYTON, C. J.

The nature of this action, the defenses set up, the rulings of the court below, the result, and the grounds on which a reversal is asked, are thus correctly stated in the brief for appellant: "This suit was instituted in the name of the state of Texas on five contracts by the appellant, Smissen, with what is styled `The Land Board,' for the lease of alternate sections of land belonging to the public school fund, under an act of the legislature, approved April 12, 1883, entitled An act to provide for the classification, sale, and lease of the lands heretofore or hereafter surveyed and set apart for the benefit of the common-school, university, the lunatic, blind, deaf and dumb, and orphan asylum funds,' made at different dates from the 23d day of June, A. D. 1884, to and including the 15th of October, 1885; each of said leases being for the term of six years from dates prior to the dates of said contracts. The first contract declared on embraced twenty sections of land, at eight cents per acre; and two sections, at twenty cents per acre. The second contract included eight sections, at eight cents per acre. The third contract embraced eleven sections, at eight cents per acre. The fourth contract was for ten sections of land, at six cents per acre. The fifth contract was for nine sections of land, at six cents per acre. The defendant in the court below answered, by general demurrer and special exceptions, presenting: First. That the act of the legislature approved April 12, 1883, in so far as said act attempted to confer upon the land board authority to lease the school land, is unconstitutional and void; and said land board had no authority, by virtue of said act, to make the pretended contracts sued on. Second. That said pretended contracts were made with a land board, so styled, composed of the officers composing the executive department of the state, and that the acts of said land board, so embracing the officers of the executive department, in the exercise of delegated powers, were and are in contravention and violation of section 1 of article 2 of the constitution, and are null and void. Third. That if the act of the legislature providing for the lease of the school land were constitutional and said land board, in its organization, were not in violation of the constitution, yet the acts of said board, in fixing the minimum rate of rental for said school lands above the rate of four cents per acre, as fixed by the legislature, were in the exercise of legislative power, not delegated, and that cannot be delegated; and that the amount of rental arbitrarily demanded in said contracts by said board, in excess of the minimum fixed by the legislature, was without authority, and said contracts, as to such excess, are null and void. (Fourth exception is rather a summary of the second and third.) Fifth. That the pretended contracts are without mutuality in rights and obligations under the terms and provisions thereof; that they were compulsory upon defendant, in their acceptance and execution by him, by the exercise of legislative functions by said board, in arbitrary orders and regulations made by said board. Sixth. That said land board assumed to exercise legislative powers, which could not be delegated by the legislature, by reserving and withholding from sale, or other disposition, portions of said school lands designated as `watered sections.' All of defendant's exceptions were overruled by the court; and the same matters were pleaded by the defendant in bar of a recovery against him. A jury not having been demanded, the matters of fact as well as of law were submitted to the court; and, filing his findings of fact and conclusions of law, the court rendered judgment in favor of the state for the sum of five thousand eight hundred and eighty-nine dollars and five cents, with interest from date at the rate of eight per cent. per annum. To all of which defendant in open court excepted, and gave notice of appeal. The question presented upon this record, and eight others which are submitted with it, under agreement, are as follows; (1) The constitutionality of that provision of the statute providing for the leasing of the common-school land, which is presented under the first assignment of error; (2) the want of power in the legislature, under the constitution, to make the officers of the executive department of the state a land board, and to delegate legislative power to said board, which is presented by the second assignment of error; (3) that said land board arbitrarily established regulations not authorized by the act of the legislature, and exercised legislative power not delegated, and which the legislature could not delegate to said board under the constitution, which is presented by the third, fourth, fifth, and sixth assignments of error."

The act under which the leases involved in this case were made, created a land board, composed of the governor, attorney general, comptroller, treasurer, and the commissioner of the general land-office, who were charged with the duties prescribed by the act, which provided for the sale as well as lease of the common-school and other lands to which it has application. This board was empowered to make regulations for the classification, sale, and lease of the lands referred to in the act; and, in pursuance of the power thus conferred, it did make regulations which gave publicity to bids to purchase or lease lands, and thereby a reasonable opportunity and time was given for competition bids before any application could be acted upon. These regulations placed the minimum for leases of lands not watered at eight cents per acre per annum, and limited the time for which leases would be made to six years. The minimum price for unwatered lands on lease was subsequently reduced by the board to six cents per acre per annum. The minimum placed by the board on leases of watered lands was 20 cents per acre, and some regulations in reference to such lands were made which it is unnecessary to state, for none of the lands leased by appellant were of that character. The appellant made application to lease the lands for the rent of which this action was brought, and they were awarded to him by the board at the price which he bid. Contracts thereafter were executed by a person on the part of the state thereunto authorized, which evidenced the appellant's right to use the leased land; and by him, which bound him to pay the rent therefor which, by his application, he had proposed to pay. These contracts all reserved the right of the state to sell the lands leased, or any part thereof, during the lease, in accordance with the act creating the land board, and putting the lands on the market for sale or lease. The appellant entered, and, so far as the record shows, still remains, in possession of the lands leased to him, and at different times tendered a sum equal to a rental of four cents per acre, but has declined to pay more.

It is unnecessary to enter into any critical examination of the true relation of the state — the people — to the common-school lands in order to illustrate the fact that the relation imposed by section 2, art. 7, of the constitution, is not that of a trustee seized of lands for the use of another with a naked power of sale added. Analogies drawn from such a relation have but little, if any, application to the question before us; for such a trustee has no power other than such as the instrument under which he holds, and is empowered to sell, gives. Such an instrument creates all the right and gives all the power such a trustee has, and it must be looked to to determine the extent of his power, and the manner in which it must be exercised. Not so with the state — the people — in relation to the common-school lands, which belong to the state as fully as did they before they were appropriated to the public purpose declared by the section of the constitution to which we have referred. The purpose for which they are to be used, is declared by that section; and, if there were no other affecting the question before us, there can be no doubt that the people, through the legislature, might lease the lands for any period of time in order to raise funds for school purposes. The purpose of a state constitution is not to confer power upon the people which may be exercised through the legislature, but is to place limitations which the people desire to impose upon the exercise of power by the legislature and other departments of the government. The limitation found in the section of the constitution referred to consists in the withdrawal from ...