State v. Rogan

• Citation: 54 S.W. 1016
• Parties: STATE ex rel. WEBER v. ROGAN, Commissioner.
• Decision Date: 22 January 1900
• Court: Supreme Court of Texas

Page 1016

54 S.W. 1016

STATE ex rel. WEBER v. ROGAN, Commissioner.

Supreme Court of Texas.

January 22, 1900.

Original petition for mandamus by the state, on relation of P. O. Weber, against Charles Rogan, as land commissioner, to compel him to award relator two parcels of school land. Granted.

M. E. Kleberg and Ashby S. James, for relator. T. S. Smith, Atty. Gen., and R. H. Ward, Asst. Atty. Gen., for respondent.

GAINES, C. J.

This is an original action for a writ of mandamus brought by the relator against the commissioner of the land office to compel the respondent to award to the relator two parcels of school lands which he had made application to purchase. The allegations in the petition are not denied. From these allegations, it appears that on the 11th day of August, 1889, the two tracts of land, one lying in Jefferson county, and consisting of 320 acres, and the other situate in Polk county, and embracing 640 acres, were unappropriated public free school lands, and were "isolated and detached," within the meaning of the act of May, 1897, with reference to the sale of the public free school lands, and that on that day the relator filed an application to purchase each of these parcels at the price of one dollar per acre. Each of these applications was in due form, and was accompanied by a tender of one-fortieth of the purchase money, and by the relator's obligation for the payment of the balance, as provided by the law then in force. It was also averred that the respondent had refused to award him the lands. The respondent, for answer, admits that the relator made application to purchase the lands, as averred by him in his petition, but avers, in substance, that, under the law in force at the time the applications were made, the section in Polk county had been classified as timbered land, and had been appraised at $8 per acre, and also that the half section had been classified as grazing land, and had been appraised at $2.50. He claimed that, because they were not agricultural lands, they were not subject to sale as "isolated and detached sections," under the law existing at the time the applications were made. In regard to the latter tract, it was also averred that it had previously been sold, but that he, as commissioner of the general land office, on the 20th of July, 1899, had declared the title of the purchaser forfeited for nonpayment of interest, and that he did not again place it upon the market until the 1st of September thereafter. He therefore claimed that, at the time of the application, the tract last mentioned was not subject to sale, for the reason that it had not been again placed upon the market. The allegations of the answer were excepted to, but were not denied.

At the time the applications to purchase were made, the following law was in force: "The commissioner of the general land office may withhold from lease any agricultural lands necessary for the purpose of settlement, and no agricultural lands shall be leased, if, in the judgment of the commissioner, they may be in immediate demand for settlement, but such lands shall be held for settlement, and sold to actual settlers only, under the provisions of this chapter; and all sections and fractions of sections, in all counties organized prior to the first day of January, 1875, except El Paso, Presidio and Pecos counties, which sections are isolated and detached from other public lands, may be sold to any purchaser, except to a corporation, without actual settlement, at one dollar per acre, upon the same terms as other public lands are sold under the provisions of this chapter." 2 Batts' Rev. St. art. 4218y. The determination of the case before us depends upon the construction of this statute. If by this law it is made the imperative duty of the commissioner of the general land office to sell all isolated sections and parts of sections of the public free school lands to the first applicant, without regard to their classification, then the writ here applied for should be awarded; otherwise, it should be denied.

Upon first impression, we were inclined to the opinion that the provision in question was directory, and not mandatory. We recognize the rule announced by the late Chief Justice Stayton in Smisson v. State, 71 Tex. 236, 9 S. W. 112, in the following language: "The word `may,' in the connection used in the sixteenth section, was doubtless used in the sense of `shall,' and therefore was mandatory. Such is the settled construction, where the subject-matter is one in which the public have an interest to be protected or promoted by the exercise of a power or performance of a prescribed duty by a public officer, unless the context shows that the word was used in its primary signification." The difficulty with the article is that the context tends in some degree to show that the word "may" in the last provision was used in its primary sense. The article begins by using the same word in the sense of permission, then it uses the word "shall,"—an undoubted word of command,— and then returns to the use of the word "may." If we had nothing but the letter of the article to throw light upon the intention of the legislature, we therefore think it would be difficult to say that the word "may" was not used in the same sense in the second instance as it was used in the first. But when we review the history of the provision, the difficulty disappears. The provision for the sale of the "isolated and detached" sections or parts of sections of the public free school lands first appeared as section 22 of the act of April 1, 1887, in relation to the classification, lease, and sale of the state's lands set apart for the benefit of the free schools, the university, and the asylums of the state. That section reads as follows: "The commissioner of the general land office, under the direction of the governor, may withhold from lease any agricultural lands necessary for purposes of settlement, or, in his discretion, he may lease such agricultural lands in small quantities for a less period than five years, as the public interest and development of the country may seem to require; and no agricultural lands shall be leased if in the judgment of the commissioner they may be in immediate demand for settlement, but such lands shall be held...