Upon the motion for rehearing in this case, the defendant in error presents the question for our consideration, that if the grant made to Rafael de Aguirre in Williamson County be void, it is nevertheless such title as is protected from the claim of plaintiff in error under the Constitution. We have therefore concluded to submit to counsel for both parties the following questions, to be argued orally or in writing, as they may choose:
1. Assuming that the grant under which defendant in error claims was issued after a prior valid grant had been made to the same party under the same authority, and that it is therefore void, is it, titled land, or is it equitably owned under the provisions of article 14, section 2, of the Constitution?
2. If it comes within the terms of the Constitution as to the location of certificates, will the prohibition therein apply to the claim of plaintiff as a pre-emptionist or claimant of a homestead under the Act of May 26, 1873, entitled "An act for the benefit of occupants of the public lands?"
Arguments allowed herein will be confined to the foregoing questions, and will be heard on such day as counsel may agree upon, or that may be hereafter fixed by the court in case no agreement is had.
Delivered April 11, 1895. *Page 403
ON REHEARING. A.S. Fisher, for plaintiff in error. — Counsel discussed art. 18, Plans and Powers of Prov. Gov. of Texas, 4 Sayles' Stats., 145; Const. 1845, art. 7, sec. 21; Const. 1861, art. 7, sec. 21; Const. 1866, art. 7, sec. 21; Const. 1876, art. 13, sec. 5; Const. 1876, art. 16, sec. 18, in connection with sec. 2, art. 14, Const. 1876; Pasch. Dig., art. 809; Adams v. Railway, 70 Tex. 272; Summers v. Davis,49 Tex. 541; Truehart v. Babcock, 51 Tex. 169 [51 Tex. 169]; Westrope v. Chambers, 51 Tex. 178 [51 Tex. 178]; Galloway v. Finley, 12 Pet., 293; Jackson v. Clark, 1 Pet., 636; Taylor's Lessees v. Myers, 7 Wheat., 26; Lindsey v. Miller, 6 Pet., 675; Arthur v. Dunn, 7 How., 270; Winsor v. O'Connor, 69 Tex. 571; Day Land and Cattle Co. v. The State, 68 Tex. 525; Railway v. Locke, 74 Tex. 370.
A study of these cases will show, that no case has been decided by this court which holds that the effect of section 2, article 14, of the Constitution, is to confirm a grant which at such time was absolutely void.
We maintain, that it was not the purpose of the constitutional convention by this section to grant any land, or to do other than confirm an imperfect right then in existence, or a grant voidable only.
When there is an absolute want of authority in the person assuming to act, he is neither a de jure nor a de facto officer; in other words, he is a mere usurper, whose acts confer neither right nor color of right, neither an apparent right in law, nor a colorable right in equity.
To hold that this pretended grant was confirmed, would be to hold that it was granted. If it was void, it was never granted, because it was not an act of Coahuila and Texas, but it was the act of Lesassier, acting without any authority whatever. There being no authority in him to grant, it can not be said to be either titled or equitably owned under color of title, as the term, sovereignty of the State, has reference to both title and color of title.
The Constitution, section 2, article 14, makes no distinction between lands titled and equitably owned under color of title; they both stand upon the same plane, and to come within the protection of article 14, section 2, there must either be in law a title or in equity a title.
A pretended grant extended to a person without right in him to take, and without semblance of authority in the officer assuming to extend, can not be said to be either "titled land or land equitably owned," when no title whatever passes either in law or equity.
As said by Justice Robertson, in the case of De Court v. Sproul, 66 Tex. 370: "A void grant is a mere vacuity; its issuance leaves the title in the State."
It is said by Justice Brown, in the case of Dawson v. McCleary, 87 Tex. 524: "If the corporation had performed all of these acts, the surveys made, without the certificate being issued by the Commissioner of the General Land Office, were without authority and void. The *Page 404 defendant had no right, legal or equitable, in the land. It is suggested by the Court of Civil Appeals, that this land being equitably owned' by defendant Skinner, was not subject to location under section 2, article 14, of the Constitution of 1876. The claim here presented does not come within the provisions of the Constitution. Adams v. Railway, 70 Tex. 272 [70 Tex. 272]. In the case last cited, the court say: 'It must not only be claimed under such color of title, but the facts which give color of title must also give equitable ownership, or the provision of the Constitution does not give protection.' This was an attempt to appropriate land without any lawful authority, and could not constitute color of title. The land was subject to location by plaintiffs."
The following cases hold that avoid title is neither title nor color of title, and confers no right, and will not even support a defense of limitation under the three years statute. Smith v. Power, 23 Tex. 30; Marsh v. Weir,21 Tex. 97; Bryan v. Crump, 55 Tex. 11; Parker v. Bains, 59 Tex. 15.
Does the prohibition as to the location of certificates apply to pre-emptionists or claimants of homesteads under the Act of May 26, 1873?
Section 6, article 14, of the Constitution of 1876, is as follows: "To every head of a family without a homestead there shall be donated 160 acres of public land, upon condition that he will select and locate said land and occupy the same three years, and pay the office fees due thereon. To all single men of eighteen years of age and upward, shall be donated eighty acres of public land, upon the terms and conditions prescribed for heads of families."
This section of the Constitution contains no proviso such as that contained in section 2, article 14, of the Constitution, evidently showing it to be the intention of the framers of the Constitution not to embrace within the terms of the proviso of section 2, pre-emptionists and claimants of homesteads. These terms, certificates, pre-emptionists, and claimants of homesteads, have had, since the beginning of our governmental land system, well defined, separate, and distinct meanings, which have always been recognized by every department of government since its first organization. Evidently, therefore, it was the purpose of the framers of the Constitution, in using the term "certificate," to give to it not only its technical meaning, but its meaning as commonly accepted and understood, and not to enlarge the proviso so as to include any other mode of acquiring land than by certificate.
It has been for years the policy of Texas to encourage the settlement of its lands by actual settlement, as well as to limit the right of acquiring lands by location of certificates. Johnson v. Eldrige, 49 Tex. 523.
It is not claimed that the exception or the proviso contained in section 2, article 14, includes eo nomine pre-emption and homestead claims. If such are to be included, it is so alone from construction.
We understand the rule to be, when the lawmaking power has prescribed a general rule with special disabilities or privileges affecting *Page 405 a particular class of things or persons, these can not be enlarged or extended to objects not embraced in the exception by mere implication or from parity of reason, and the affirmative description of the class of persons or things embraced within the exception must necessarily exclude all not comprehended within its literal meaning. Tyson v. Brittain,6 Tex. 222; Snoddy v. Cage, 5 Tex. 107 [5 Tex. 107]; Roberts v. Yarboro, 41 Tex. 450.
The Howell pre-emption, the one in controversy in this suit, was surveyed May 4, 1876, under the pre-emption laws then in force. Subsequently, article 3936 of the Revised Statutes was enacted, as follows: "No person shall settle upon or occupy, nor shall any survey be made or patented under the provisions of this chapter (pre-emption), upon any land titled or equitably owned under color of title from the sovereignty of the State, evidence of the appropriation of which is on the county records or in the General Land Office; or when the appropriation is evidenced by the occupation of the owner or of some person holding for him."
Article 3951, Revised Statutes, prescribes the same in reference to homestead donations. The Revised Statutes, however, did not take effect until the 1st of September, 1879; therefore this article can have no effect upon the rights of Howell, as his right had attached prior thereto.
We do not think that it can be held that section 2, article 14, of the Constitution, is intended in any sense as a grant of land, and to make that a title which was before not a title, but void. It is but a reservation, if that. It does not operate upon the land, only in so far as it has relation to land certificates, fixing thereupon a limitation as to time and as to character of land upon which they may be located; and as pre-emption and homestead claims are not expressly inhibited from location, and are not expressly included within the terms of the proviso, they can not be said to be included by construction, unless such claims must be held to be certificates, or unless the effect of the proviso is to absolutely grant land which was not before granted.
Walton Hill, for defendant in error. — 1. On the first point we have to say: (1) If a grant originate through an officer of a former government, who, under the laws of such government, could be authorized to do the act he purports to perform, and he acts in the capacity of one who could do the act, then the validity of such act must be tested by the face of the documents which constitute this act, and no evidence aliunde the face of such documents can be received, save when such act is attacked by the State.
(2) That this rule has long existed in Texas and has become a rule of property, and the question taken the status of stare decisis.
(3) Section 2, article 14, of the Constitution of 1876, is but a declaration making organic law what the law had been by an unvarying line of decisions for full fifty years. *Page 406
In the case of the Texas-Mexican Railway Company v. Locke,74 Tex. 402, this court, after the most exhaustive investigation and elaborate opinion on the question before the court, lays this down to be the law of this State in regard to land titles emanating from a former government:
Many titles in this State would be uprooted if the law upon this subject [attacks on Mexican titles] was as contended for by appellant [who occupied the position of plaintiff in error in the case before the court], and in view of the course pursued by the Governor of the State and other officials [of the former government], who must be presumed to have understood their powers, and in good faith acted upon them, nothing short of a law clearly showing an usurpation of power would justify our holding that their acts were invalid. We therefore hold that the court did not err, in view of the other evidence [documentary and from the former government] in this case, in refusing to exclude the documents offered, on the ground that the commission of Soto had been annulled before he issued the titles."
The case quoted from, if it be not overruled, is decisive of the point now under discussion, both in and out of the presence of section 2, article 14, of the Constitution.
In that case, Fortunato Soto occupied the same position, viz., commissioner to distribute titles to the colonists in the colony of Beales and Grant, that Luke Lesassier did in the colony of Austin and Williams — only this, Lesassier was alcalde in addition to being commissioner. The court, in another part of the opinion, uses this very significant language, adopting what was said in Jenkins v. Chambers,9 Tex. 234, viz: "The instructions to commissioners were repealed only so far as they were opposed to the provisions of the law of 1834 — Decree 272, article 29, Laws Coahuila and Texas. Those [instructions] of the 4th September, 1827 [Id., decree, p. 70, under which Lesassier acted], were doubtless mainly intended for the government of commissioners for the distribution of lands to colonists proper. But their terms are sufficiently comprehensive to embrace, and the were made to embrace, other cases of concessions made under the law of 1825." The reason of the law which required the colonization contract should be carried out in accordance with the law of 1825, undoubtedly applied with equal force to the concessions in this case. 441. We construe the court to say, and to mean to say, that under the instructions of 1827 the commissioners for the distribution of lands to colonists had authority to issue titles on concessions, that is, concessions made for lands to Mexicans who were not colonists. Colonists did not receive concessions. They were simply domiciled in the colony, and received titles to their lands by virtue of their being so domiciled, and reckoned in the number of settlers the colonial contractors had bound themselves to introduce to entitle them to their premium lands. Concessions were granted only in sale under article 24 of the colonization laws of 1825. Laws of Coahuila and Texas, 19. So when the court says, "But their *Page 407 terms [instructions] are sufficiently comprehensive to embrace, and they were made to embrace, other cases of concessions made under the law of 1825," it did say, and meant to say, that commissioners for the distribution of lands to the colonists were vested with authority to extend titles to those who were not colonists, but purchasers in sale by concessions from the Governor, under article 24, aforesaid.
Again, the court says as to void titles: Grounds for forfeiture for noncompliance with conditions [conditions precedent] may exist. It may have been the intent of the grantees and Beales to acquire for him [under article 24] more land than the law permitted to be held by one person, and that on this ground forfeiture might be claimed by the State, or the holder of prior title or color of title; and it may be, and doubtless is true, that the commissioner issued title to lands not within the limits of the colony for which he was commissioner, and the grants in so far may be void; and it may be that the grants are situated within the limits then recognized by the authorities to be in the department of Bexar; but it does not follow, if all these things be true, that any of them can inure to the benefit of appellant.
"The concessions which conferred the right to purchase, if the record speaks the truth, were valid, and Soto had power to issue titles, if the instrument evidencing his authority be not false; and however much he may have exceeded his authority, the lands are nevertheless, within the meaning of article 14, section 2, of the Constitution, 'titled lands;' " citing Truehart v. Babcock, 51 Tex. 177; Westrope v. Chambers,51 Tex. 187; Summers v. Davis, 49 Tex. 541 [49 Tex. 541]; Winsor v. O'Connor, 69 Tex. 571 [69 Tex. 571]. All of which cases we referred to in our original brief, on this motion for rehearing.
The court adds: "However defective the titles through which appellee's claim may be, they show such facts as deprive appellant of the right of mandamus." The hands were vacant and subject to location, or they were not vacant, but appropriated, and protected by the Constitution. The court says, that though the titles were void, because the commission of the officer had been annulled, because illegal and in violation of article 24, and because extended to lands outside the jurisdiction of the officer, yet the lands embraced therein come under the designation of "titled lands," and are protected from certificate location by the Constitution. So we read the decision, not because we so wish to read it, but because the language used is susceptible of no other reading.
The case of Massey v. Railway, 7 Texas Civil Appeals, 650, construes article 14, section 2, of the Constitution. In 1858 the Texas Legislature passed an act relinquishing title to certain claimants under a Mexican title, providing therein, that the beneficiaries should cause surveys of the relinquished lands to be made in all respects conforming to the metes and bounds designated in the original grant. A survey was made, but embraced more land than was contained in the boundaries of the original grant. Location was made on lands inside *Page 408 the survey, but outside the metes and bounds of the original grant; and the issue in the case was as to whether the land so surveyed, but outside original metes and bounds, was protected from location by the article of the Constitution before named. The court held the locations bad; and further, that the land was protected, on the ground that it was equitably owned, etc., under the survey; and this notwithstanding patent had issued on the location. Citing Winsor v. O'Connor, 69 Tex. 571; Adams v. Railway, 70 Tex. 253.
In Groesbeck v. Harris, 19 Southwestern Reporter, 850, the court rules: "Where certain surveys were located, and field notes returned to the General Land Office, though not recorded in the county where made, they would be protected by section 2, article 14, of the Constitution."
Our conviction is, that the Constitution under discussion was ordained with an eye single to the quieting of land titles, in simple but full harmony with the rule of property long established, and in entire accord with stare decisis. One decision, well considered, and concurred in by an unanimous bench, on a specific subject matter, erects the bar of stare decisis. The rule is not inflexible, but should be adhered to, and not disregarded but on the fullest consideration and the conclusion reached that the law had been settled wrong. Sydnor v. Gascoigne, 11 Tex. 455; Smith v. Power,23 Tex. 32; Burns v. Ledbetter, 56 Tex. 284.
But whether we be right in this, we doubt not that the first question submitted by the court is answered and settled by the authorities we have cited. We come fully under both clauses of section 2, article 14, of the Constitution.
(1) We have a title — written, valid on its face — whereby the government — taking the face of the title to be true — has parted with all its right in, fee to, and dominion over, the territory embraced within the boundaries set out in the grant.
(2) The land embraced in the grant is equitably owned by defendant in error, through a regular chain of title by grant from the sovereignty of the soil, by successive links of conveyance down to his ancestor, and by inheritance from him, covering a period of almost sixty-three years; and all this time no political step or proceeding in court has been taken by the State to annul, set aside, escheat, or cancel the title, she through all those years receiving taxes from the claimants on the land.
We believe the Constitution covers, guards, and protects us, and that we were protected by the law before the Constitution was adopted. If there were no other points in the case save those submitted by the court for argument, we should, from the standpoint of authority, confidently maintain that the shield of the Constitution interposes itself between us and the aggressions of certificate holders. If the State had attacked the title within a reasonable time, before private and innocent rights had grown up, the question for decision would have been materially *Page 409 different. But even then, we should not at all have been hopeless of maintaining the title even against sovereignty itself.
2. Conceding that the title of defendant in error is void, but, coming under the designation of "titled land," is protected from certificate location under section 2, article 14, of the Constitution, is it also so protected from invasion and appropriation by pre-emption and homestead claimants under Act of May 26, 1873, entitled An act for the benefit of the occupants of the public domain?"
(1) Without express legislative declaration, we see no reason in law, and as little in morals, why a donation should take precedence over or stand on a higher plane than the payment of an honest, genuine debt; that is to say, there is lack of reason in the idea, that where the State gives her public domain away, the donee should take more privilege than the holder of a genuine land certificate who is entitled to resort to the public domain as a creditor to obtain satisfaction of his debt against the State. In the one case, the donee receives a gift; in the other, the holder of the certificate has value invested, either purchase money, services performed, or title by inheritance from one who had value invested. But if the law so enacts, that ends the matter, and we must deal with it as a legal fact. In this instance, however, we do not consider that the law itself so enacts, or that such a conclusion can be logically drawn from the words of the enactment.
(2) There is a legislative construction of section 2, article 14, of the Constitution, in regard to the rights of pre-emptors and occupants of public domain, viz., article 3936, Revised Statutes, as originally adopted. It is there declared, "No person shall settle upon or occupy, nor shall any survey be made or patented, under the provisions of this chapter, upon any 'titled land,' " etc., referring in the margin to the said article of the Constitution as basis for the enactment. Of course this was subsequent to the Act of 1873, but the substance (if not in hac verba) of that act was carried into the chapter of which article 3936 forms a part. The same prohibition is applied to homestead donations. Id., art., 3951.
(3) There are no specific or even general words or phrases in the Act of May 26, 1873, which indicate a preference to pre-emptors or homesteaders over certificate holders. In other acts of the Legislature such preferences have been expressed; for instance, in chapter 52, Session Acts 1879, page 48, whereby lands in certain counties were set apart for sale, the proceeds to be applied to designated purposes, the first section contained this clause: "The provisions of this act shall not be so construed as to prohibit the right of pre-empting within the bounds of the reservation here made;" and giving pre-emptors the same right to enter the reservation that they had to appropriate the land before it was made. In the Act of August 17, 1876, page 168, the actual settler has the right reserved to him to enter where the certificate holder may not go. The enactment is, "That all reservations of the public domain for the benefit of any railroad or railroad company heretofore made *Page 410 by law, and the right to which reservation has lapsed since January 1, 1872, or may hereafter lapse, are hereby declared then to have been severed from the mass of the public domain, and in the event of a forfeiture to the State, are by this act expressly reserved from location, except the three millions of acres of lands reserved for constructing a new State capitol and other public buildings, and to actual settlers under the pre-emption laws," etc. There are other reservations which contain exceptions in favor of the pre-emptor, actual settler, and homesteader, but those named show the policy, idea, and practice of the lawmakers on this subject, viz., that when a class of persons is to be favored, or excepted from the general rule, the favor or exception is made in express words by affirmative enactment.
The Act of May 26, 1873, "An act for the benefit of actual occupants of the public lands," page 101, is lacking in express words that take the occupants mentioned out of the general rule, and we take it that they must abide in the status where the law leaves them. The first section is a mandatory order, requiring occupants at that date to return field notes within the time therein named, and regulating how patents may be obtained on the field notes so returned. The second section gives a right to make application for a homestead under the then existing law regulating that subject matter, and upon conditions named. Section 3 is a regulation as to the survey, and exempting the homesteader from any character of payment, save fees due the surveyor's office and the General Land Office. Section 4 visits a penalty on the surveyor if he fail or refuse to make a survey, etc. The last section repeals all prior laws in conflict with the act.
(4) The keynote to the right of the occupants named in the law just mentioned comes out of the words "public domain," as used in sections 1 and 2. These words are not preceded by the words "vacant and unappropriated," that are used in the Constitution, but we do not deem that omission to be of any material significance. The virtue rests in the words "public domain," whether prefixed by one term or another, unless the prefix embodies a preference or a prohibition. And this act embodies no prefix of one kind or another.
We then come in a simple and honest spirit to the consideration of the question as to what is the meaning of the words "public domain," under the Constitution and laws of Texas.
The best legal discussion as to what these words "public domain" mean, that we have seen, is made in the case of Day Land and Cattle Company v. The State, 68 Tex. 526, et seq., and the cases therein referred to, holding the term equivalent to "unappropriated public domain."