Tabor v. Comm'r of the Gen. Land Office

• Decision Date: 01 January 1866
• Citation: 29 Tex. 508
• Parties: JOHN TABOR v. THE COMMISSIONER OF THE GENERAL LAND OFFICE.
• Court: Texas Supreme Court

29 Tex. 508

JOHN TABOR

v.THE COMMISSIONER OF THE GENERAL LAND OFFICE.

Supreme Court of Texas.

1866.

Though it is apparent that, by the second section of the act of February 11, 1858 (Pas. Dig. art. 4423, note 990), and the amendment thereto of February 1, 1860, the legislature intended to bring into market the islands as well as the “reserved” sections therein mentioned, yet no mode has been expressly provided by these or any other enactments for the sale of the public lands upon the islands. The mode of sale established by the 4th section of the act of February 11, 1858 (Pas. Dig. art. 4425), is applicable only to the “alternate sections of land surveyed and reserved to the state,” referred to in the 2d section of the act, and has no application to the islands.

The failure to establish a mode for the sale of the public lands upon the islands appears to have been an oversight upon the part of the legislature, though it may be said with plausibility that it was intentionally left for future legislation.

A survey of public land made while the land was reserved to the state is void and unofficial, whether made by a public surveyor or a private person, there being no lawful authority for a survey of reserved lands. Pas. Dig. art. 4248, note 972; 3 Tex. 67;7 Tex. 76.

Quære? Whether the commissioner of the general land office is invested with discretionary powers, by virtue of which he is authorized to adapt to the islands the general plan of the state for the sale of her lands by the issuance of certificates, etc.?

If the commissioner has such discretionary power, his exercise of it will not be reviewed on an application for a mandamus.

The writ of mandamus will not be granted against a public officer, unless the right of the applicant be clear and unquestionable, and unless the duty of the officer be clearly defined and enjoined upon him by law, and be ministerial in its nature, and not involving any judicial function, discretion or alternative. 3 Tex. 51;5 Tex. 471;22 Tex. 24;28 Tex. 687.

Where a mandamus against the commissioner of the general land office is sought for the purpose of procuring title from the state to public land, and it appears that there are other claimants of the land who are not parties to the proceeding, that fact of itself furnishes sufficient reason for the refusal of the writ. The averment of the applicant, that the claims of such other persons are void, will not obviate the difficulty; for, whether void or valid, the courts will not undertake to adjudicate unless the claimants are parties to the suit. 2 Tex. 57;5 Tex. 484.

APPEAL from Travis. The case was tried before Hon. A. W. TERRELL, one of the district judges.

This case was an application made by the appellant for a mandamus to Francis M. White, as commissioner of the general land office.

The essential facts are stated in the opinion of the court, and need not be repeated here.

Commissioner White, in his reply to Tabor's application, after explaining his construction of the acts of the legislature involved in the question, proceeded as follows: “Then, as the law fails to point out the mode by which the islands can be disposed of, and as the making of surveys without a certificate authorizing the same is prohibited under heavy penalty, it remains to be seen whether the commissioner may exercise a discretion, in order to carry out the plain intent of the legislature, and in what way that discretion is to be exercised. If exercised at all, it should only be to carry out the evident intention of the legislature: it should be practical and uniform in its application. In regard to the exercise of a discretion in the premises, I presume that you deem it expedient and necessary, because your application begets that necessity, as the law is clearly inoperative when viewed strictly according to the letter. We have already adopted a plan, in the exercise of a discretion, which we believe meets the intention of the legislature, which is, to sell island scrip at $1.25 per acre, to be located upon any of the islands, under the general laws regulating surveys. I admit that this plan is the result of discretion, and not sustained by positive law; yet I can see no good reason for its abandonment in order to adopt a different discretion, which would be equally unsustained by law.

I therefore respectfully decline issuing the order, for the following reasons:

1. There has been no legal survey of the land, which is always necessary before a patent can issue.

2. The act under which you claim does not point out any mode by which the islands shall be sectionized, other than that adopted in ordinary cases where public lands are required to be surveyed. In the absence of any specific mode being pointed out, the office has adopted a plan corresponding with the usual mode in our state, and, I believe, better calculated to facilitate locators or purchasers, protecting the interests of the state, and different from the one which is proposed by you.

3. There is a prior application, or applications, for the land, or a portion thereof, backed by surveys of the same, which I believe to be valid, and of which you had notice before making your application.”

The errors assigned are, that the court below erred in sustaining the exceptions of the defendant and in dismissing the plaintiff's petition.

Hancock & West, for appellant. The commissioner, in his letter, it will be perceived, admits (as indeed is plain) that it was the intention of the legislature to sell the islands; but he contends that they have failed to point out a mode, and that they cannot be identified and designated, and hence refuses to act.

The obscurity, or rather hiatus, that the commissioner supposes to exist, springs from a misunderstanding of the use of the word “sections;” that word occurring in both the 2d and 4th sections of the act, but not used in the sense and with the meaning attached to it by the commissioner.

It is equally clear to us (bearing in mind that it was the legislative intention not only to sell the alternate sections, but the islands also), that in the 4th section the words “section and sections” are used in their common and more enlarged sense, to wit, to mean six hundred and forty acres of land.

This view is confirmed by the phraseology of the 4th section itself; the language used is, one or more sections of the land treated of in the 2d section, to which it immediately directs the mind of the reader.

Had it been intended to restrict the words to the “alternate and reserved sections” treated of in the 2d section, the terms would have been “one or more of the sections referred to,” but no such restriction was contained, and it refers expressly to the “land” mentioned in the 2d section, manifestly including them all. Nor is this use of the word section, as synonymous, in this connection, with “six hundred and forty acres of land,” at all uncommon, in the sense in which we contend: it will be found repeatedly in our land legislation. Hart. Dig. arts. 1828, 1960 et seq.; 2011 et supra et seq.; 2231 et seq.; O. & W. Dig. art. 1666 et seq. In all of these instances the term section will be found to be a general term, with a meaning familiar to all. And in Webster's Unabridged Dictionary we find the word section defined to be, “in the public lands of the United States a tract of six hundred and forty acres of land.”

Furthermore, by reverting to a few elementary rules for the construction of statutes, our view will be found to be sustained by authority. If, for example, our view be rejected, and that of appellee be adopted, the law, so far as the sale of the island is concerned, will become a dead letter, clearly contrary to the intention of the legislature. And Smith on Statutory Construction, pp. 671 and 672, and § 527, lays down the rule, “that a statute should never be so construed as to render it a nullity,” and there fully illustrates and applies the rule. And again, on p. 673, and in § 528, he lays down the rule, that if a statute makes use of a word in one part of it susceptible of two meanings, the one favorable to and the other hostile to its principal design, the former should prevail and control the construction. Surely no rule of construction could be more in point than this. See as authority strongly in point, 2 Vatt. c. 2, p. 285. This rule of construction is sanctioned by our court. Randolph v. The State, 9 Tex. 521;Cannon v. Vaughan, 12 Tex. 401, see opinion of chief justice; Robinson v. Varnell, 16 Tex. 382;Brooks v. Hicks, 20 Tex. 666. Another rule is, that the true meaning of the statute is generally and properly sought for and ascertained from the purview and body of the act; that is, in construing the words and collecting from them the intention of the legislature, regard must always be had to the subject-matter. Smith, Comp. 709 and 710 Again, on page 633, Smith lays down the rule, “No statute should be so construed as to be of no effect; and the true rule is, that if many different interpretations present themselves from the language in which the law is expressed, and any one of them will enable us to avoid such an effect, that should be preferred which appears most agreeable to the intentions of the framers of the statute, for that would be most conservant to the true office of interpretation.” See also his remarks on page 634.

On page 828, and section 713, will be found a case forcibly and fully illustrating these principles. Furthermore, it will be perceived that the object of the sales was the beneficent one of increasing the school fund, and the court will hesitate long in such a case, when the object of the act is known and the intention certain, in adopting a construction that would render the statute a dead letter. But it is further argued by the commissioner, that he has no mode of pointing out and designating the land, and that to adopt the mode suggested by us would breed confusion. There is no force in this position.

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