Midland County v. Slaughter , 61 Tex. Civ. App. 328 ( 1910 )

I am forced to dissent from the conclusions of the majority and the grounds of my dissent are fundamental, involving a construction of the constitutional provision vesting the title to school lands in the several counties of the State. I concur in the conclusion, that since plaintiff in error has not sought to rescind or cancel the lease to Scharbauer, the judgment of the District Court must be affirmed unless the lease contract is absolutely void. The majority have held that the lease is void, not because it is a lease, but because of the option feature given to Scharbauer, authorizing him to purchase the land at the price and on the terms stated at any time within the period of his lease. To this conclusion I can not agree. Section 6, article vii, of the Constitution, vests in the respective counties of the State their school lands in the following words: "All lands heretofore or hereafter granted to the several counties of this State for educational purposes are of right the property of said counties, respectively, to which they are granted, and title thereto is vested in said counties and no adverse possession or limitation shall ever be available against the title of any county." The framers of the Constitution had the right, of course, to designate the manner in which the counties should handle, control, or deal with this property to the end that the purposes of the grant should be served, to wit: the creation of a trust for the benefit of public schools therein. This they have done in the following language: "Each county may sell or dispose of its lands in whole or in part, in any manner to be provided by the Commissioners' Court of the county." This, so far as my search has shown, is the only authority for, or limitation upon the management of the county lands by the Commissioners' Court, (save the provision concerning the prior right of actual settlers to purchase, in no manner pertinent to the question under consideration). Now, the county is expressly authorized to sell, and it may well be argued that this carries with it the power to give an option, since an option, at last, is only an incident of a sale. It is merely an offer of a sale continued by agreement for a definite time. In one sense, an option is included in every offer to sell, that is, the buyer is given a time, short or long, according to the exigencies of the situation, within which to accept. Can it be said that Midland County, having the express power to sell her school lands, is powerless to make an option of sale allowing the proposed purchaser a day, a week or a month in which to accept the offer? The ultimate logic of the majority opinion is to answer this question in the affirmative.

But the power of the county is not limited to sales. It "may sell or dispose of" its lands in whole or in part, in such manner as its Commissioners' Court may provide. Now, all the authorities agree that the power conferred by the use of the words "dispose of," is much broader than that conferred by the use of the word "sell." It is perfectly apparent that the framers of the Constitution meant to confer more power upon the county than the power to sell, otherwise, the expression "or dispose of" would be a superfluity, and meaningless. It is a rule of statutory construction which no lawyer will question, that an Act should be so interpreted as to give to every word a meaning, where that is possible, consistent with the purposes of the statute. I apprehend that it is by virtue of the county's power to dispose of its lands, rather than by virtue of its power to sell, that leases of the county's lands have been upheld. A lease is not within the power to sell, but is within the power to dispose of. Hill v. Sumner, 132 U.S. 118, 33 L. ed., 284; U.S. v. Gratiot,39 U.S. 526, 10 L. ed., 573. It has been held by eminent authorities that the power to dispose of lands, includes the power to make partition thereof, (Phelps v. Harris (U.S.) 25 L. ed., 855), to mortgage (Platt v. Union Pacific R. Co., (U.S.) 25 L ed., 424; Benz v. Fabian (N.J.), 35 A. 760; Faulk v. Dashiell, 62 Tex. 642), to exchange (Thurmond v. Faith,69 Ga. 832), and to manage (Sheffield v. Orrery, 3 Atk. [Eng.] 282).

With this general power thus conferred on the counties with respect to their school lands, having in view the beneficent purposes of the trust, to wit, the advantageous management of the fund for the creation of revenue for the benefit of the public schools, I see no reason for denying the counties the right to give an option in connection with an offer to sell the county lands. I am aware of the fact that the majority opinion does not expressly hold that the Commissioners' Court of appellant county did not have this power, but I think the conclusion actually reached necessarily involves this holding. The specific holding of the majority is, that the act of the Commissioners' Court in granting to Scharbauer an option to purchase the land at the price and on the terms stipulated at any time within the life of his twenty-year lease, was in excess of their power, and therefore, absolutely void as against public policy. The only authorities cited for this decision are those of Jay County v. Taylor (Ind.), 7 L. R. A. 160, and Millikin v. Edgar County (Ill.), 18 L. R. A. 447. I do not think either of these decisions is authority for the majority holding, for in neither of them was it necessary to hold the contract absolutely void, since in each, the action was between the original parties and the validity of the contract was thus directly attacked. It is true, in the case first cited the language of the court would justify the effect given to it by the majority. Furthermore, I doubt the soundness of those decisions. I think it is stating the rule too broadly, as is in effect done in the majority opinion, to say that the Commissioners' Court of a county in this State can enter into no contract concerning the county lands, that is binding on their successors in office. Every sale and every lease for more than two years, necessarily, would fall by such a rule. Indeed, if this rule is to obtain, the Commissioners' Courts would only be authorized to lease the county lands, or loan the proceeds of the same when sold, during their tenure of office, which might not extend beyond a few days or weeks, and the right to manage the same to the best interests of the public schools, would be seriously hampered.

My opinion is that the whole question in this case is, whether or not the contract under consideration was voidable, and if so, the remedy of appellant county was an action to set aside, and not one of trespass to try title. I do not think it can be held as matter of law that a lease for twenty years, including an option to buy county school lands within that time at the price and on the terms shown in this case, is void, but at most, the cause of action is of equitable cognizance for fraud, duress or unreasonableness. Such a contract is not necessarily unfair to the county, for the proposed price and terms may have been such, under the circumstances, as to be greatly in the county's favor. One could easily imagine such a case. Would it still be held void as contrary to public policy? Again, the agreement to give an option may have been a potent factor in securing to the country an advantageous lease.

Entertaining these views, so widely different from those of the majority, with respect to the powers of the County Commissioners, I deem it my duty to enter this dissent.

Writ of error refused.