Houston & Texas Central Railway Co. v. State

This action was brought by the State of Texas to recover of the Houston Texas Central Railway Company and F.P. Olcott 170,880 acres of land located and surveyed by virtue of certificates issued to the defendant company. Among the grounds upon which the recovery was sought were three: First, that at the time the sections of railroad were completed for which the certificates were issued, the law which authorized a grant of lands to railroads had ceased to be operative by its own limitation and had also been repealed by the Constitution of 1869; second, that the certificates, by virtue of which the lands in controversy were located, were issued for side tracks, and that the law did not authorize the issue of certificates for sidings; and third, that if the grants were valid, the title thereto had been forfeited by failure of the company to alienate them within the time prescribed by the statutes which authorized the grant.

The trial judge filed his conclusions of fact and held that the certificates were not authorized by law, but also expressly declined to pass upon the question of forfeiture. Judgment was rendered for the State for the recovery of the lands, and appeal was taken to the Court of Civil Appeals, errors being assigned to the trial judge's conclusions of law only. The Court of Civil Appeals held that the certificates were valid and reversed the judgment and remanded the cause for the trial of the questions of forfeiture. All questions of fact as to the time and manner of the construction of the railroad were settled by the findings of the trial judge and the approval of such findings by the Court of Civil Appeals. In passing upon these facts, the Court of Civil Appeals say: "The facts as ascertained by the lower court do not show failure in the construction of any part of the road, except such as is condoned by acts of the Legislature, relieving the company of a forfeiture of any part of its land grant by the State; and we conclude that there was no forfeiture on the grounds stated." The forfeiture here referred to is the forfeiture for failure to construct the several sections of the road within the time prescribed by the statute.

It is apparent from the conclusions of fact found by the trial court that the certificates upon which the surveys in controversy were made were issued wholly for the construction of side tracks, but at what time the sidings were constructed does not clearly appear. It does appear, however, that a portion at least were constructed after the Constitution of 1869 went into effect.

The logical order of the questions presented is: (1) Did the law in force at the time the work was done for which the certificates were issued authorize a grant of land to the Houston Texas Central Railway Company for the construction of its road; (2) if so, did the authority include a grant for side tracks; and (3) if both these questions be answered in the affirmative, have the lands been forfeited by reason of a failure to alienate them within the time prescribed by law?

But since, if it be determined that the company was in no event entitled to certificates for sidings, it would be unnecessary to determine the other questions, and since the discussion of that question involves, in a measure, a discussion of the first, it will be first considered. But before entering upon the construction of the statutes involved in the consideration of the point, it is useful to relate briefly a history of the legislation of the State which authorized a grant of land for the construction of railroads in general, as well as the legislation with reference to the defendant company in particular.

The Houston and Texas Central Railway Company was incorporated by act of the Legislature approved March 11, 1848, under the name of the Galveston Red River Railway Company. It was among the first special charters granted by the Legislature of the State. Like all similar charters granted by that and the succeeding Legislature, it was crude in its provisions and meager in its details. But with the Legislature which met in 1851, a marked change in the legislative policy with reference to railroad companies was manifested. No general law upon the subject was enacted at that session. But an act was passed by that Legislature amending the charter of the Galveston Red River Railway Company, and in the preamble thereto we find the following declaration: "And whereas it is desirable to preserve uniformity in the several acts establishing railway companies passed by this Legislature, the following provisions are hereby adopted," etc. Then follow certain general provisions relating to the rights and duties of the company with reference to the general public. These same provisions had been incorporated in the charter of one company which had been previously passed in precisely the same language and were incorporated in all subsequent charters granted at that session. Among them were provisions for the condemnation of lands for use of the respective companies, conferring the right to take lands by gift or purchase, requiring the respective companies to keep in repair all crossings of public roads, to draw the cars of other railroad companies, and fixing a maximum charge for the carriage of freight and passengers. This Legislature also inaugurated the policy of granting lands to encourage the construction of railroads; and, in accordance with its declared policy of uniformity of legislation with respect to railroad companies, in each of the charters authorizing the incorporation of such companies passed at its session, a grant of eight sections of the public lands for each mile of railroad to be constructed was authorized under certain conditions. The same provision as to the Galveston Red River Railway Company is found in the amended charter of that company passed at this session. The respective grants were not only the same in substance, but they are couched in precisely the same language. The following are the terms in which the respective concessions are made: "There shall be granted to said company eight sections of land of six hundred and forty acres each, for every mile of railway actually completed by them and ready for use; and upon the application of the president of the company, or any duly authorized agent thereof, stating that any section of five miles or more of said railway has been completed and is ready for use, it shall be the duty of the Comptroller of Public Accounts to require the State Engineer, or a commissioner to be appointed by the Governor, to examine said railway, and upon his certificate that said section of said railway has been completed in a good and substantial manner, and is ready for use, the Comptroller shall give information of that fact to the Commissioner of the General Land Office, whose duty it shall be to issue to said company land certificates to the amount of eight sections of land, of six hundred and forty acres each, for each and every mile of railway thus completed and ready for use; such certificates shall be for six hundred and forty acres each, and shall be located upon any unappropriated public domain of the State of Texas, within twelve months from the issuing thereof, which date shall appear upon the face of each certificate; and upon the return of the field notes of any survey made by virtue of any certificate thus issued, it shall be the duty of the Commissioner of the General Land Office to issue patents to said company in their corporate name; one-fourth of which said lands thus patented shall be alienated by the company in six years, one-fourth in eight years, one-fourth in ten years, and the other fourth in twelve years, so that the whole of the lands thus granted shall pass from the hands of the company within twelve years from the date of the patents thus issued."

In pursuance of the policy which had been previously pursued and for the further encouragement of the construction of railroads, the next succeeding Legislature passed a general law applicable to all railroads then chartered which enlarged the concession to sixteen sections of land to the mile and prescribed sundry conditions of the grant. So much of that act as is pertinent to the question under consideration we set out:

"Sec. 1. Be it enacted by the Legislature of the State of Texas, that any railroad company chartered by the Legislature of this State, heretofore or hereafter, constructing within the limits of Texas a section of twenty-five miles or more of railroad, shall be entitled to receive from the State a grant of sixteen sections of land for every mile of road so constructed and put in running order."

* * * * * * * * * *

"Sec. 12. That the provisions of this act shall not extend to any company receiving from the State a grant of more than sixteen sections of land nor to any company for more than a single-track road, with the necessary turnouts; and any company now entitled by law to receive a grant of eight sections of land per mile for the construction of any railroad, accepting the provisions of this act, shall not be entitled to receive any grant of land for any branch road; provided, this act shall not be so construed as to give to any company now entitled by law to receive eight sections of land, more than eight additional sections; provided, that no person or company shall receive any donation or benefit under the provisions of this act, unless they shall construct and complete at least twenty-five miles of the road contemplated by their charter within two years after the passage of this act; and such donations shall be discontinued in every case where the company or companies shall not construct and complete at least twenty-five miles of the road contemplated by their charter, each year after the construction of said first mentioned twenty-five miles of road; and further provided, that the proviso herein contained shall not extend to any railroad, the terminus of which is not fixed on the gulf coast, the bays thereof, or on Buffalo Bayou, and that nothing in this section shall be so construed as to extend the duration of any existing charter; and further provided, that the certificates for land issued under the provisions of this act shall not be located upon any land surveyed or titled previous to the passage of this act; and further provided, that this act shall continue in force for the term of ten years from the time it shall take effect and no longer."

Sections 2, 3, 4 and 5 contain provisions giving a right to a reservation of lands for locations by railroad companies, and such provisions were expressly withdrawn from the benefits conferred by the Act of November 13, 1866. The sections are therefore omitted. The other sections not copied throw no light upon the questions discussed in this opinion, save the sixth and seventh. They merely provide that the lands acquired from the State shall be alienated within a certain number of years, and in case of a failure to do so, for a sale by the Comptroller of Public Accounts.

By the special Act of January 23, 1856, the time for the construction of the Galveston Red River Railway Company was extended. That act contains the following provisions: "But said company shall be entitled to the rights, benefits, and privileges granted by an act approved January thirtieth, eighteen hundred and fifty-four, entitled ``An act to encourage the construction of railroads in Texas by donations of lands,' upon the completion of said twenty-five miles within said six months, and the rights, benefits, and privileges of said act shall be confined to said company; provided, it shall construct and complete twenty-five miles of road each year after the expiration of said time; provided," etc. Thus it is seen that by this act the benefits of the general law, granting to railroad companies the right to acquire lands, were expressly conferred upon this company, and its provisions engrafted upon its charter: At the adjourned session of the same Legislature, the name of the corporation was changed from that of the Galveston Red River Railway Company to that of the Houston Texas Central Railway Company. 4 Gammel Laws, 806. The time for construction was again extended by each succeeding Legislature until the period of the war, and during that term a general act was passed continuing the benefits of the law of January 30, 1854, until two years after the close of the war.

In September, 1866, a special act was passed, which was approved by the Governor on the 21st day of that month, and which reads as follows:

"Section 1. Be it enacted by the Legislature of the State of Texas, that the Houston and Texas Central Railway Company shall be entitled to receive from the State a grant of sixteen sections of land, of six hundred and forty acres each, for every mile of road it has constructed, or may construct, and put in running order, ``in accordance with the provisions of the charter of said railroad company;' provided, that the lands heretofore drawn by said company, by virtue of an act to encourage the construction of railroads in Texas, by donation of lands ``approved January 30, 1864' [1854] be deducted from the amount of lands granted hereby; and provided further, that the land certificates heretofore issued to this company on the three first sections of their road, by virtue of the act aforesaid, be included in the terms, benefits, and conditions of this act, as if issued by virtue of its provisions, and further provided, that said company shall construct and put in running order a section of twenty-five miles of additional road to that now built, within one year from January 1, 1867, or fifty miles within two years from that date; and such grant of land shall be discontinued when said company shall fail to construct and complete at least twenty-five miles of road contemplated by their charter each year after the construction of said first mentioned fifty miles of road; provided, that said road shall be put in running order to Bryant's Station, and cars run regularly thereon, by the first day of September, 1867.

"Sec. 2. Whenever said company shall have completed and put in running order a section of twenty-five miles or more of its road, beyond the point which land has been granted and drawn, they may give notice of the same to the Governor, whose duty it shall be [to] appoint some skillful engineer to examine said section of road, and if, upon the report of said engineer, under oath, it shall appear that said road has been constructed in accordance with the provisions of its charter, and of the general laws of the State, in force at the time, regulating railroads, thereupon it shall be the duty of the Commissioner of the General Land Office to issue to said company certificates of six hundred and forty acres each, equal to sixteen sections per mile of road so completed, thereupon said company may apply to the district surveyor of any land district to survey any quantity of vacant land subject to location and entry in such district, not to exceed twice the quantity of certificates so issued, and may cause to be surveyed the land so designated into sections of six hundred and forty acres each, or half sections of three hundred and twenty acres each, which surveys shall be delineated upon a map or maps, the even and odd sections and half sections, and being differently colored and regularly numbered from one upwards, to the full number contained in the block, and the field notes of said survey and map or maps shall be by said company deposited with the Commissioner of the General Land Office, and it shall be the duty of said Land Commissioner to issue to said company patents for the odd sections and half sections of said surveys; and all the alternate or even sections and half sections shall be reserved to the use of the State until appropriated by law, and not liable to location, entrance or pre-emption privileges.

"Sec. 3. That surveys under the provisions of this act shall be made by deputies and district surveyors of the districts in which the land is situated, and the field notes shall be recorded in such district, and returned to the General Land Office, as other surveys; and said railroad company shall construct their road in the line heretofore prescribed by ``An Act for the relief of the Houston Texas Central Railway Company,' approved February 8, 1861."

On the 13th day of November, 1866, the Governor approved a general act for the benefit of railroad companies which reads as follows:

"Section 1. Be it enacted by the Legislature of the State of Texas, that the grant of sixteen sections of land to the mile to railroad companies, heretofore or hereafter constructing railroads in Texas, shall be extended, under the same restrictions and limitations heretofore provided by law, for ten years after the passage of this act.

"Sec. 2. That the time for the alienation of the lands acquired by railroad companies, heretofore, shall be extended to fourteen, for the alienation of one-half of such lands, and to twenty-one years for the alienation of the other half; and, in the event such alienation does not take place, the said lands shall be forfeited to the State; and companies hereafter acquiring lands shall alienate the same in fourteen and twenty-one years from the date of acquisition, under a like penalty of forfeiture.

"Sec. 3. That the benefits of this act shall not apply to any company hereafter that avails itself of the provisions of the second, third, fourth, and fifth sections of an act entitled, ``An Act to encourage the construction of railroads in Texas,' approved January 30, 1854, or of the act supplementary thereto, approved February 16, 1858.

"Sec. 4. That it is not intended by the preceding section to interfere with or impair the rights which have been heretofore acquired by companies under laws heretofore in force, but to preclude companies from hereafter taking advantage of the provisions of sections 2, 3, 4 and 5 of the Act of January 30, 1854, and the supplementary act thereto of 16th February, 1858; provided, that all tap roads over twenty-five miles long shall be entitled to the benefits of this act.

"Sec. 5. That this act shall be in force from its passage."

The two acts last quoted are those we are called upon to construe. In the case of Quinlan v. Houston Texas Central Railway Company, 89 Tex. 356, it was held that the Act of November 13, 1866, was constitutional and had the effect to revive or continue in force the Act of January 30, 1854. Unless that law was repealed by the Constitution of 1869, — a question hereafter to be considered, — then it was in force when the sections of railroad were constructed for which the certificates, by virtue of which the lands in controversy were located, were issued.

The questions, then, are: Did the Act of January 30, 1854, authorize a grant of land for sidings, and, if so, are its provisions repugnant to those of the special Act of September 21, 1866?

In the first section of the Act of 1854, the grant is declared in these words: "Any railroad company chartered by the Legislature of this State, heretofore or hereafter, constructing within the limits of Texas a section of twenty-five miles or more of railroad shall be entitled to receive from the State a grant of sixteen sections of land for every mile of road so constructed and put in running order." The first part of the twelfth section is evidently intended to define more accurately the limitations of the grant by construing the language used in the first section. We quote this language again: "The provisions of this act shall not extend to any company receiving from the State a grant of more than sixteen sections of land, nor to any company for more than a single-track road, with the necessary turnouts; and any company now entitled by law to receive a grant of eight sections of land per mile for the construction of any railroad, accepting the provisions of this act, shall not be entitled to receive any grant of land for any branch road; provided, this act shall not be so construed as to give to any company now entitled by law to receive eight sections of land, more than eight additional sections," etc. The purpose of the first provision we have been unable to ascertain. We have not found any provision of law under which any railroad company in the State could at this time have claimed more than sixteen sections per mile. But this is unimportant. The meaning, however, of the provision, "nor to any company for more than a single-track road with the necessary turnouts," is in part clear. That is, a company which should build a double track road was to be entitled to claim lands but for a single track. But the question, what is meant by the words "with the necessary turnouts," is not free from difficulty. See Railway v. State,81 Tex. 572. Was it their purpose merely to describe the kind of road for which the lands should be granted? Did the Legislature conceive it probable that any company would construct a road without the necessary side tracks? It would seem not. Besides, by the first section, the lands were to be given only for a section of twenty-five miles of railroad "constructed and put in running order." Clearly a section of twenty-five miles of railroad is not in running order without side tracks. Therefore, it would seem that to construe the phrase as merely descriptive of the character of the railroad to be constructed would be to give it a meaning which adds nothing to what had been previously expressed. On the other hand, the word "with," in one of its primary senses, is a word of addition, meaning "in addition to," and in that sense, it is in common and frequent use by the best writers as well as by people in general. Construing the word in that sense, the phrase would mean that in estimating the mileage of the railroad track for which certificates were to be issued, the side tracks were to be included. In the construction of grants by the sovereign, the rule is to resolve a doubt in favor of the government when the question can not be satisfactorily determined otherwise. But for this rule there should be no difficulty in applying the latter construction to the language in question. And in view of the fact, as found by the trial judge, that this has been the construction acted upon by the Governors and other officers of the State, whose duty it was to execute the law, we are of opinion that such construction ought now to prevail. Especially after a long lapse of time and after the claims of innocent third parties may have intervened, it is only in a very clear case that the courts would be justified in overriding the action of successive administrations in issuing certificates and granting patents to the public lands.

This brings us to the question of the construction of the special Act of September 21, 1866, and of its effect upon the general law of November 13th of that year. It has been held that the latter act did not apply to railroad companies thereafter chartered. Quinlan v. Railway, supra. But that by its literal terms it embraced all companies then chartered is not to be denied. But whether, by reason of the fact that the special act made provision for the Houston Texas Central Railway Company, that company was intended to be excluded from its benefits, and whether, if so, the two acts are inconsistent in any important particular, are matters to be considered.

The Legislature which met in 1866 was the first which convened after the close of the war. During the whole time of that eventful conflict all the energies of the people of the State were directed to the maintenance of the Confederate government, and all railroad construction was suspended. The Legislatures which met during the war had, as we have seen, passed acts for the benefit of the railroad companies of the State, extending the time prescribed for the construction of the several sections of these roads so as to prevent a forfeiture of the charters and of their rights to acquire lands under the Act of January 30, 1854. But when the government of the Confederate States had been suppressed, the States which composed it were treated by the United States as having been in rebellion against its authority, and hence grave doubts existed as to the validity of the acts passed during the war by the Legislatures of the seceding States. When peace was restored, there was no railroad company in the State which had completed its line and none which, but for the relief granted during the period of the war, was not in default for failure to construct in accordance with its charter and the general law which provided for a grant of lands. Under these circumstances, it was but natural that they should be solicitous to remove all questions as to their rights in the premises, and, in order to accomplish this end, to have the Legislature not only confirm their concessions as to past and future acquisitions, but also to extend the time within which their respective roads should be constructed. Nor is it to be doubted that the people of the State were equally desirous of encouraging the completion of the lines which had been partially constructed as well as the construction of the new roads. Accordingly we find that at an early day of the session of the first Legislature which met after the close of the war, the bill was introduced which resulted in the passage of the special Act of September 21, 1866. We are aware of the rule that in construing a statute it is not permissible to consider the proceedings of the Legislature antecedent to its passage. But as illustrating the prevailing sentiment upon the matter of the encouragement of the construction of railroads, we quote the reasons given by the committee of the house who recommended the passage of the bill: "Among the many reasons which actuated your committee with such cordial unanimity, they are of the opinion that this bill, in effect, only confers a vested right conferred upon the company by previous laws of the State, some of which were passed during the period of secession, the validity of which, perhaps, may be questioned in the States and countries where the company may deside to use its credit. This bill will, if it becames a law, relieve the company from all such embarrassments, and will greatly aid in effecting such negotiations as are necessary to facilitate the further extension of the road at this time." A few days after the passage of this law, another special act granting like relief to the Eastern Texas Railroad Company was enacted. So far as we have been enabled to discover, these were the only special laws of a like character passed at this session. But before the passage of either, a bill had been introduced which was intended to grant lands to all railroad companies then chartered or thereafter to be chartered by the Legislature. This bill finally passed the two houses, but was vetoed by the Governor upon the ground that it was too liberal and that it departed in important particulars from the policy of the general law of January 30, 1854. A special objection urged by the Governor in his veto message was that it made no provision requiring the alienation of the lands to be acquired. After the veto and very near the close of the session, another bill was introduced, extending, in the main, the privileges of the Act of 1854, but requiring the alienation of the lands within certain periods under the penalty of forfeiture. This bill passed both houses and was approved by the Governor and is the law of November 13, 1866, hereinbefore referred to and quoted. It is a sound rule that "Ordinarily, if there are a general statute and one local or special, on the same subject, in conflicting terms, neither abrogates the other, but both stand together; the former furnishing the rule for the particular locality or case, the latter for the unexcepted places and instances." Bishop on the Written Law, sec. 112b. But it is to be presumed that different acts passed at the same session of the Legislature are imbued by the same spirit and actuated by the same policy, and they should be construed each in the light of the other. It is readily seen that those who were desirous of encouraging the completion of a road already partially constructed may not have deemed it prudent to take the chances on the enactment of a law for the relief of all the companies, and have urged the passage of a special act granting special relief to the particular company. Therefore, it would seen that because a special act was passed for the benefit of the Houston Texas Central Railway Company at the same session at which a general law was enacted conferring similar benefits upon all the then existing companies within the State, the former should not be viewed as conferring any special privilege upon such company or as restricting the rights conferred by the general law. On the contrary, for the reason that it is to be presumed that a continuity of policy prevailed throughout the same session of the Legislature, we should expect to find that substantially the same benefits were intended to be conferred and the same restrictions imposed in the special law as in the general.

We quote again the first part of the first section of the special Act of September 21, 1866; "That the Houston Texas Central Railway Company shall be entitled to receive from the State a grant of sixteen sections of land, of six hundred and forty acres each, for every mile of road it has constructed, or may construct, and put in running order ``in accordance with the provisions of the charter of said railroad company.'" This language is capable of two constructions, depending upon the question whether the clause, "in accordance with the provisions of the charter of said railroad company," was intended to qualify the words, "receive a grant," or only the words, "constructed or to be constructed." If the former be the true construction, then the meaning is that the same amount of lands are to be granted as is provided in the charter, subject to the same conditions and limitations, except as is otherwise provided in subsequent provisions of the act. If the clause is to be construed as qualifying only the words, "constructed or to be constructed," then the act provides for an absolute grant of land of sixteen sections per mile, subject to the condition only that the road shall be constructed in the manner and the periods of time provided in its charter. Since by the amendment to the company's charter which became a law in 1856, as we have seen, the benefits of the general law of January 30, 1854, were specially conferred upon it, and since that act thereby became a part of the charter, the former construction would give to the special act a meaning in harmony with the general law of November 13, 1866, which extended the operation of the general law of 1854 with some qualifications. The latter statute, in effect, repeals, as to companies availing themselves of its benefits, the second, third, fourth, and fifth sections of the Act of 1854, which sections made provision for reservations of public lands to satisfy the concessions. The second section of the special act has the same effect, for it provides merely for the issue of certificates for the lands and for their location by an official surveyor in alternate sections upon any part of the unappropriated public domain. The general law of 1866, it is true, provided that the lands should be forfeited to the State upon failure to alienate them in certain definite periods after their acquisition. The Act of 1854 provided merely for an enforced alienation, — that the Comptroller should sell them, — in case they were not alienated within the times prescribed by the act. Both imposed upon the railroad companies the obligation of alienation, but there was a difference in the penalty for the failure to perform the duty. This suggests that after having passed the special act, when the Legislature came to consider the general act for the relief of all railroad companies then chartered, it was deemed best to provide a more efficient remedy in order to secure a sale of the lands by the companies. The general policy of the two acts, as we construe them, seems to us to be the same. The fact that the Governor approved the special act, when at the same session he vetoed a bill for a general law granting lands to railroad companies for the reason, among others, that it did not require an alienation by the companies of the lands, indicates that he construed the special act as it was construed by the committee of the house, which recommended merely as confirming, under certain restrictions, the concessions provided for in its charter, and not at all events relieving the company of the obligation to alienate the lands as prescribed in the previous laws.

We will add upon this branch of the case, that it seems to us that the language of the early charters and the first section of the Act of January 30, 1854, are both capable of the construction that lands were to be granted for sidings. That of the former is, that "there shall be granted to said company eight sections of land of 640 acres each for every mile of railway actually constructed and ready for use." Since a mile of said track is a mile of railway, the language is certainly broad enough to include sidings. The language of the first section of the Act of 1854 is as follows: "That any railroad chartered by the Legislature of this State heretofore or hereafter constructing within the bounds of Texas a section of twenty-five miles or more of railroad, shall be entitled to receive from the State a grant of sixteen sections of land for every mile of road so constructed and put in running order." Those words suggest a reason for a more restricted construction. The grant is made dependent upon the construction of a section of twenty-five miles. It would seem that the section was to be a section of twenty-five miles in lineal extension; and that, therefore, but for the construction placed upon the language by section 12 of the same act, it might be held not to include side tracks. But section 12 shows that the Legislature deemed the language of section 1 as being capable of a construction which would grant lands, not only for a single track and sidings, but also for a double track. Therefore they limited it to a single track and sidings. It seems, therefore, that section 12 indicates, in some measure, that the contemporaneous construction of these early charters was that they authorized a grant of lands for sidings; and that when the Legislature used the words "for every mile of railway constructed," they meant every mile of side track and main track. We can see no good reason why, if the Houston Texas Central Railway Company sought relief at the hands of the Legislature, so as to exonerate it from suspicion of a forfeiture of its rights, it would have asked a diminished grant; nor, on the other hand, do we see why the Legislature should have desired to refuse that company a concession for side tracks, when it granted, at the same session, such concession to every other company in the State. Our conclusion upon this matter is, that by the Act of September 21, 1866, the Legislature extended to companies, under a specific condition, the rights previously conceded to the Houston Texas Central Railway Company; and that by the Act of November 13, 1866, they intended to grant substantially the same relief to all railroad companies then existing in the State. The language of the latter act is broad and embraces all railroad companies theretofore and thereafter constructing railroads in the State, and makes no exception of the Houston Texas Central Railway Company. Section 3 does, however, except all companies that should thereafter avail themselves of the second, third, fourth, and fifth sections of the Act of January 30, 1854. Therefore, we think that the Houston Texas Central Railway Company could either have availed itself of the special act by an acceptance of its provisions, or could have earned the lands under the general law of November 13, 1866.

It follows from what we have said that in our opinion the Houston Texas Central Railway Company were entitled to the certificates by virtue of which the lands in controversy were located, unless the laws which authorized their issue were repealed by the Constitution of 1869. This brings us to the question, whether the effect of that Constitution was to repeal all laws previously enacted which authorized a grant of lands for the construction of railroads. The contention that they were is mainly based upon section 6 of article 5 of that Constitution. It reads as follows: "The Legislature shall not hereafter grant lands to any person or persons, nor shall any certificates for land be sold at the Land Office, except to actual settlers upon the same and in lots not exceeding 160 acres." In reference to the construction of Constitutions, Judge Cooley says: "In interpreting clauses we must presume that words have been employed in their natural and ordinary meaning. As Marshall, Chief Justice, says: ``The framers of the Constitution, and the people who adopted it, "must be understood to have employed words in their natural sense, and to have intended what they have said."' This is but saying that no forced or unnatural construction is to be put upon their language; and it seems so obvious a truism that one expects to see it universally accepted without question; but the attempt is made so often by interested subtlety and ingenious refinement to induce the courts to force from these instruments a meaning which their framers never held that it frequently becomes necessary to redeclare this fundamental maxim. Narrow and technical reasoning is misplaced when it is brought to bear upon an instrument framed by the people themselves, for themselves, and designed as a chart upon which every man, learned and unlearned, may be able to trace the leading principles of government." Cooley, Const. Lim., 71. This would seem to apply with especial force to a Constitution which was framed for submission to a vote of the people and which was only to take effect after a majority of the legal voters in the State had cast their votes in its favor. Clearly the section quoted prohibited the Legislatures thereafter to be convened from making a direct grant of land to any one or more individuals or corporations. It has also been ruled, — as we think, correctly, — that it also prohibited future Legislatures from granting certificates to any person for past or future services or from conceding a right to railroad companies to acquire lands by the construction of railroads. Bacon v. Russell, 57 Tex. 409; Railway v. Quinlan, 89 Tex. 356. But at the time the Constitution of 1869 was framed and at the time it was adopted by the popular vote, there were railroads in the State which were constructing their roads, with the right, under the laws then existing, to acquire, subject to certain restrictions, sixteen sections of land for every mile of railroad to be constructed. The question then recurs, — was it the intention to repeal these laws? There is nothing in section 6 of article 10 which indicates such a purpose. To the ordinary mind it imports merely a prohibition upon future legislation. It makes no mention of existing laws; and we fail to see how an inhibition against future laws of a certain character is to be construed as having any effect upon past legislation. If there be any such rule of construction — and we know of none — all doubt of the meaning of the provision in question is removed by the insertion of the word "hereafter." What could have been its purpose but to give emphasis to the idea that it was intended to apply only to the action of future legislatures? According to the familiar rule that the mention of one thing excludes another, the emphatic declaration that "the Legislature shall not hereafter grant," etc., indicates that the laws then in existence which authorized grants of land were not to be affected. In our opinion, the section means the same as if it had declared in so many words that "Existing laws making grants of land are not hereby repealed, but the Legislature shall not hereafter grant," etc. For the obvious reason that when a legislative body desires to repeal a law it is easy to express that purpose, repeals by implication are not favored; and the later law, whether found in a Constitution or an act of a Legislature, does not repeal another which is consistent with it, in the absence of some language indicating such intention. There is no inconsistency between prohibiting the passage of new laws providing for the grant of lands and leaving existing laws of a like character still in force.

The construction which we give to the section in question is sustained by the fact that when the framers of the Constitution came to make provision with reference to usury laws, they spoke in no uncertain terms. Section 44 of article 12 reads as follows: "All usury laws are abolished in this State, and the Legislature is forbidden from making laws limiting the parties to contracts, in the amount of interest they may agree upon for loans of money or other property; provided, this section is not intended to change the provisions of law fixing rate of interest in contracts where the rate of interest is not specified."

The ordinances which were passed by the convention which framed this Constitution also tend to show that it was merely the purpose of the section to prohibit the Legislature from providing for future grants. That convention, during its session, passed sundry ordinances incorporating railroad companies and providing for land grants to encourage the construction of their roads. It also passed an ordinance for the relief of the Eastern Texas Railroad Company which expressly "renewed and revived" all the rights, privileges, and immunities conferred upon that company by its original charter and the acts amendatory thereof. By its original charter, the privileges of the Act of January 30, 1854, with reference to grants of land to railroad companies were expressly conferred upon that company. These ordinances not having been submitted to the popular vote, did not become laws (Quinlan v. Railway, 89 Tex. 356); but they were passed as laws and with the intention that they would become such without being passed upon by a vote of the people. They show the policy of the convention as clearly as they would have shown it had they taken effect as laws. They indicate that it was not the policy of the convention to withdraw altogether from the railroad companies of the State the right to acquire lands by the construction of their lines. The theory seems to have been either that the privileges already conferred by existing laws, together with those conferred by ordinance of the convention itself, would be sufficient to secure the construction of such lines of road as would justify the grants; or that the State could afford to grant no more lands than would likely be acquired under existing laws and the ordinances of the convention. Either, as it seems to us, was a sufficient reason for the action of the convention in calling a halt and in prohibiting future Legislatures from making such grants. It does not seem to us reasonable to suppose that the convention intended to take away from existing companies then constructing important lines of railroad the privilege of acquiring lands by such construction, and at the same time grant with no stinted hand the same privileges to new companies proposing to construct lines of far less importance. We conclude, therefore, that it was not the purpose of the convention, in enacting section 6 of article 10 of the Constitution of 1869, to repeal existing laws which provided for the acquisition of lands by railroad companies, and that the people who voted for the adoption of that Constitution did not so construe the section.

We have thus far treated this as an original question; but in the case of Railroad v. Kuechler (36 Tex. 382) the point came before the court and it was decided in accordance with the opinion we have just expressed. But, on the other hand, it is urged by counsel for the State that this decision is in conflict with subsequent decisions of this court. We can not, however, yield assent to the contention, and will briefly notice the cases upon which counsel rely.

The first is Bacon v. Russell, 57 Tex. 409. In that case, title to 640 acres of land was claimed by Russell by virtue of a special act of the Legislature passed in 1873, which purported to grant him "a land certificate for 1280 acres for his services one year in the army of Texas during the years 1835 and 1836, and a further certificate of 640 acres for his participation in the campaign against Bexar in 1835." A certificate for 640 acres was issued under this act and was located upon the land in controversy in that suit. A patent issued to Russell by virtue of such location. He was plaintiff in the trial court and the question arose as to the validity of the grant. In order to maintain the constitutionality of the special act, it was urged in his behalf that the certificate was not intended as an original grant, but that the purpose merely was to secure a right existing under previous laws awarding lands to those who served in the army of the Republic, and that therefore the act was not prohibited by section 6 of article 12 of the Constitution of 1869. In passing upon the question the court held, first, that since it did not appear that the services for which this 640 acres were granted to Russell were the same as those which entitled a soldier to 640 acres of lands under the previous laws, "the inception and sole basis for his right rests upon the Act of February 19, 1873," and that therefore it was void. But in the opinion the court say further, in effect, that even if the services had been the same, the plaintiff would have been in no better position; and proceed to show that if he had ever had any rights under the former laws, they had been lost. In concluding upon this point, the court say: "In the absence of the constitutional provision referred to, the Legislature might have removed the bar and have given further time and means to acquire the certificates, as had been so often done before; but the right having ceased, and the Constitution having declared that the grant should not be made, the Legislature was powerless to revive the right which had once existed, but had been lost by the failure of the party to apply for and receive the same from some of the officers of the government authorized from time to time to issue the certificates." Since it was distinctly held that if Russell had ever had any right under the former laws, that right had been lost, we fail to see how the question of a repeal of such law was involved in the case. If the court had intended to hold that the Constitution of 1869 repealed all existing laws providing for grants of lands to individuals and to railroad companies and thereby to overrule the decision in the Keuchler case, it seems to us they would have so declared. Such a ruling would have been decisive of the case before them and would have rendered unnecessary the somewhat lengthy discussion in the opinion as to the question whether the act was merely intended to confirm a right previously granted, or whether its purpose was to make simply an original grant. The gist of the opinion is that, in any aspect, the special act was an original grant and was therefore prohibited by the Constitution.

In White v. Martin, 66 Tex. 340, an act of the Legislature passed in 1873 directed the Commissioner of the General Land Office to issue to "Absalon P. Joyce 640 acres, headright, in lieu of No. 162, issued in Shelby County, without the conditional," and the question of the validity of this act arose in the case. In determining the point, the court say: "The special act of the Legislature directing a certificate to issue in lieu of it was but, in effect, a direction to issue a land certificate as a donation. Such legislation would be the first and most important step in making a legislative grant of land. This, under article 10, section 6, of the Constitution then in force, it has been held, the Legislature then had no power to make," citing Bacon v. Russell, supra, and Holmes v. Anderson,59 Tex. 482.

In Holmes v. Anderson, supra, the appellant claimed under a certificate granted to one Holmes by a special act of the Legislature passed also in 1873. In reference to the act, the court say: "If, at the time of the adoption of the Constitution of 1870, there existed a valid unsatisfied certificate to Willett Holmes for a league and labor of land, and it had been lost, and it became necessary to have such evidence of that fact as would authorize Willett Holmes or his assignees to appropriate so much land, or if, for any other reason, it became necessary to issue to Holmes a certificate to evidence a right which he had, through a valid unsatisfied land certificate existing at the time of the adoption of the Constitution of 1870, then the Legislature had the power to direct a certificate to issue to evidence such right, although a duplicate might have been obtained under the general law.

"If, however, there was no valid unsatisfied certificate in favor of Willett Holmes for a league and labor of land in existence potentially, although the evidence of it may have been lost or destroyed, at the time the Constitution of 1870 was adopted, then the Legislature had no power to grant to Willett Holmes a land certificate for a league and labor of land as a headright, although at some past time the facts may have existed which would have entitled him to a certificate for that quantity of land. Bacon Bates v. Russell, 57 Tex. 415.

"After the adoption of the Constitution of 1870, so long as it continued in force, the Legislature had no power to authorize the original issue of such land certificates as issued to Willett Holmes by reason of any equity or right which he, at some former time, may have had." The judgment was accordingly reversed and the cause remanded in order to give appellant the opportunity of proving that a valid certificate for a league and labor of land had been issued to Holmes and that it had been lost.

The case of Railway v. State, 81 Tex. 572, is also relied on in behalf of the State. In that case, the railroad company claimed the lands in controversy by virtue of the general law of 1876 and for the construction of a line to San Antonio. The right to construct this line was not embraced in its original charter, but was conferred by a special act passed in 1870. The general law of 1876 expressly denied its benefits to such companies as had failed "to comply with the terms of their charters with reference to a completion of portions of their roads in stated times." In endeavoring to show that the case did not fall within this restriction, the court use this language: "The Buffalo Bayou, Brazos Colorado Railway Company had by special acts and by the general law of 1854 the right to receive lands for each section of twenty-five miles of railway constructed, but by a special act of February 4, 1854, it was restricted to an extension of its road to Austin, and to a line extending thence to a connection with any road running north of Austin to the Pacific Ocean. Spec. Laws 1854, pp. 69, 70. The privilege of constructing a railway to San Antonio was conferred by the special Act of 1870, which recognized the present corporation as the successor of the Buffalo Bayou, Brazos Colorado Railway Company, and authorized the change of name. At the date of that act, the power to grant lands in aid of the construction of railways had been taken from the Legislature by the Constitution of 1870, and all laws making such grants impliedly repealed except as to existing rights. It follows that until the Act of 1876 went into effect, the appellant had never had any right to acquire lands from the State by the construction of its line to San Antonio, and consequently there was no right in that respect which but for the proviso in question would have been renewed." The point decided was that after the Constitution of 1869 went into effect the Legislature could not, by authorizing a railroad company to change its line, confer upon it a right to acquire lands by the construction of such new line. The theory was that this was not the confirmation of a right to acquire land under a law existing when the Constitution of 1869 took effect, but that it was an additional and a new concession, and was therefore prohibited by the section under consideration. The Act of November 13, 1866, conferred the right to earn land upon all companies then chartered or thereafter to be chartered. The effect of the ruling was to hold that the Legislature, after the adoption of the Constitution of 1869, could not charter a new road and thereby give it a right to acquire lands, nor could it give such right to a chartered company for the construction of a new line. This was all that was meant by the expression in the opinion upon which counsel seem to lay stress, — that "all laws making such grants were impliedly repealed except as to existing rights." Clearly the companies existing at the time of the adoption of that Constitution, which had complied with their charters and the Act of November 13, 1866, had the existing right to acquire lands by a further construction in compliance with these laws. What the Constitution repealed was so much of the Act of 1866 as gave the right to all companies to be chartered in the indefinite future; and the effect of the section in question was to limit the operation of that act to such companies as had been chartered at the time when the Constitution went into effect.

Upon the question of forfeiture the Court of Civil Appeals say in their opinion: "The record does not furnish the data from which a computation could be made ascertaining what amount of the land in controversy should be forfeited for failure to alienate. Were it not for want of this precision in the proof, we could here render judgment; but, in the present state of the record we can not do so." We concur in this conclusion, and since the determination of the question of the right of the State to forfeit the lands in controversy involves many difficult points, we do not feel called upon to enter upon a discussion of the matter. We suggest, however, that it may be well, upon another trial, to make it appear whether the Houston Texas Central Railway Company accepted under the special Act of 1866. It may be that if it did so accept, the State's right would be confined to an enforced alienation. Since we are of opinion that it was entitled to the lands granted under either the special or the general law, the taking of the lands does not alone show an acceptance of the former act.

We conclude, upon the whole case, that the judgment of the Court of Civil Appeals, which reversed that of the District Court and remanded the cause, is correct and that it should be affirmed. It is accordingly so ordered.

Affirmed.

DISSENTING OPINION.