Weber v. Rogan , 94 Tex. 62 ( 1900 )

OPINION ON ORIGINAL SUBMISSION. 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, 1899, 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 $1 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. Stats., 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, 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 for settlement and sold to actual settlers only, under the provisions of this act; and all sections or fractions of sections in all counties organized prior to the first day of January, 1875, except El Paso, Pecos, and Presidio counties, which sections are detached and isolated from other public lands, may be sold to any purchaser, except to a corporation, at not less than two dollars per acre, upon such terms as the Commissioner of the General Land Office may prescribe." This section was amended by section 26 of the Act of May 4, 1895, but so much thereof as related to the sale of detached sections was left unchanged. Section 26 appears in the Revised Statutes of 1895 as article 4218y. It was amended in 1897, and, as so amended, was the law in force at the time the relator applied for the purchase of the lands in controversy. It thus appears that until this article was amended by the Act of 1897 the Commissioner had a discretion both as to the terms of the sale and as to the price, subject, however, to a minimum limit. The article so amended took away all discretion as to the terms of the sale by providing that the sale should be "upon the same terms as other public lands are sold under the provisions of this chapter." (The chapter meant is chapter 12a, of title 87.) And it is very clear to our minds that if it had not been intended to take away all discretion as to the price, the Legislature, instead of using the words "at one dollar per acre," would have said "at not less than one dollar per acre," — the form of expression used in the very article they were amending. By changing the language from the words "not less than two dollars per acre" to the words "at one dollar per acre," they must have intended not only to reduce the minimum to one dollar per acre but also to fix the price at that sum. Such seems to have been the construction put upon the act by the next Legislature, for in 1899 the article was again amended so as to read "at not less than one dollar," etc. Laws 1899, p. 235. This last act had not gone into effect when the applications to purchase in this case were made.

It is to be observed that the provision in question only applied to lands lying in counties which had been organized before January 1, 1875. Isolated sections and parts of sections of such lands had long been upon the market when the act which embraced this provision was passed, and had remained unsold. The presumption was that they were of little value and not marketable under the general provisions of the act. They were like the unsold remnants of a stock of merchandise, — not sold because not salable upon the terms and conditions upon which the bulk of the stock had been sold. This consideration doubtless impelled the Legislature to enact the special provision for the sale of detached lands. Therefore, in the original act, they removed all restrictions save as to a minimum price, and provided that such lands should be sold at such price not below $2 per acre and upon such terms as the Commissioner of the Land Office might prescribe. It was ten years after the passage of the first act which conferred this power upon the Commissioner that the amendment was passed which was in force when the relator made application to purchase the lands in controversy in this case. The consideration which led to the first action of the Legislature bore with greater force at the time the amendment was adopted. The Legislature doubtless then felt that the previous law had been inadequate for the disposition of these remnants of public free school lands, and that to effect a sale it was necessary not only to lower but to fix the price and to take away all discretion in the premises from the Commissioner. The history of the legislation and the circumstances surrounding its subject matter impel to the conclusion that the purpose of the Twenty-fifth Legislature, in passing the amendment of 1897, was to make it the duty of the Commissioner of the General Land Office to accept all bids for isolated sections and parts of sections of the school lands at a dollar an acre, upon the purchasers tendering the part of the purchase money and the obligation for the balance, as was required by the general law.

But it is urgently contended that the provision applies only to agricultural lands, and that since the parcels in question have been classified, the one as timbered and the other as grazing lands, the relator acquired no right by his applications. This contention is based upon the fact that the first provision in the article is expressly applicable to the agricultural lands. The argument is that this shows that in adopting the article in question the Legislature had in mind only the agricultural lands, and that therefore the words "all sections and fractions of sections" meant all sections and fractional sections of agricultural lands. We can not concur in the proposition. We attach no importance to the fact that the provision about agricultural lands and that about detached parcels are found in the same section of the law. It is undoubtedly the custom to embrace provisions relating to divers matters in the same section or article of a statute, and there can be no objection to the practice provided all relate to the same general subject named in the title of the act. In the provision in controversy, the Legislature says "all sections and fractions of sections," and the words mean, literally, all such sections and fractions without regard to their classification as agricultural, grazing, or timbered lands. We think they meant what they said. In the original act, the section which contains the provision as to isolated and detached lands is nearly the last. The previous twenty-one sections contained full regulations for the sale and lease of the free school and asylum lands. When this was done, there remained certain exceptions to be provided. The Constitution required the lands to be sold, and hence it was deemed proper to authorize such of them to be held for sale as were in immediate demand for actual settlement. Also, as has been previously shown, in order to effect a sale of "isolated and detached sections and fractions of sections" of the lands, it was expedient to except them from the general rule and to make special provision for the sale thereof. Not only was there no incongruity in providing for both of these exceptions in one section, but it seems to us that it was a natural and logical method of making the provisions. In the original section, perhaps the most important provision in regard to the isolated lands is that any person, not a corporation, could be a purchaser. All other lands were to be sold to actual settlers only. Surely the lands most desirable for settlement and most likely to be applied for by actual settlers were those adapted to the purposes of agriculture. It therefore seems to us that if the Legislature had desired to except either class from the operation of the provision, the agricultural lands are the last they would have excepted, for, so far as we can see, every consideration which impelled them to except the isolated and detached sections from the general rule laid down by the statute, applied with more force to the timbered and grazing lands than to the agricultural sections.

But as to the half section situated in Jefferson County, there is another question to be determined. After the Commissioner had declared that parcel forfeited, was it necessary that the forfeiture should be reported to the county clerk of the county in which the land is situated before it was again subject to purchase? The provisions in general of the chapter regulating the sale of the public school and asylum lands, do not apply to the "isolated and detached sections and fractions of sections." As already seen, they required no classification; nor was any appraisement necessary as a condition precedent to their sale. Before the amendment of 1897, the Commissioner fixed the price at not less than $2 per acre. Under that amendment, the law fixed it absolutely at $1, and directed that the lands should be sold upon the same terms as other public lands were sold, under the provisions of the chapter of which it was made a part. By "terms" are meant the times of the payment of the installments of the purchase money and the rate of interest on the deferred payments. It does not mean under the same regulations, because, as we have seen, no regulations were necessary. The law having fixed the price and terms of sale, all that was necessary to acquire an inchoate title was to make application to the Commissioner and to tender the proportion of the purchase money required by the law to be paid in cash, together with the statutory obligation for the balance. Jumbo Cattle Co. v. Bacon Graves, 79 Tex. 5.

We think the writ of mandamus should issue as prayed for, and it is accordingly so ordered.

Opinion delivered January 22, 1900.

ON MOTION FOR REHEARING.