Honorable Grainger McIlhany Opinion No. C-52
Chairman
Land Study Committee Re: Whether, In view of the
House of Representatives prohibitions, restrictions
Austin, Texas and reverters in H.B. 6,
Chapter 68, 36th Leg.; H.B.
164, Chapter 40, 47th Leg.;
and H.B. 492, Chapter 253,
49th Deg., the Glasscock
Fill Area, located in Corpus
Christi Bay, has reverted to
Dear Sir: the State and related questions.
You request an opinion of this office in regard to
"The Glasscock Fill Area located in Corpus Christ1 Bay and pre-
sently claimed by private individuals with a chain of title
from Corpus Christi." Your request presents the following ques-
tions, "in view of the prohibitions, restrictions and reverters"
in the Acts referred to in your letter, and herein.
1. Whether the Glasscock Fill Area has reverted to
the State.
2. Whether the Glasscock Fill Area, in view of the
restrictions as to the public use and benefit, can be lawfully
conveyed by the City of Corpus Christ1 for private use and
benefit.
3. If the land has not been forfeited back to the
State, what Interest the State of Texas and the general public
presently have in the above referred to land.
It occurs to us that the true answers to these quee-
tlons must be found In a correct Interpretation and construc-
tion of the legislative enactments herein referred to.
House Bill No. 6, Chapter 68, approved March 17, 1919,
entitled: "Granting to the City of Corpus ChI;isticertain land
lying under the waters of Corpus Chrlsti Ray, contained the
following provisions pertinent to the questions presented:
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Honorable Gralnger McIlhany, page 2 (C-52)
"Section 1. All right,tltle and interest
of the State of Texas to all the land herein-
after In this section described lying and being
situated under the water of Corpus Chrlsti Bay
and within the corporate limits of the City of
Corpus Christi, Texas, is hereby granted to the
said city for public purposes only; said land
so granted being described as follows: All
land west of the line beginning at a point in
the northern boundary line of the corporate
limits of said city of Corpus Christl, Texas,
one thousand feet (1,000) from the point of
intersection of said northern boundary line
with the present shore line of Cbrpus Christi
Bay; thence In a southerly direction to a point
in the Southern boundary line of the corporate
limits of said city one thousand feet (1,000)
east from the point of intersection of the said
Southern boundary line with the present shore
line of said Bay,
"Sec. 2. The city of CorpusChristi is
hereby granted the right, power and authority
to locate, construct, own and maintain withln
said territory hereby granted such sea walls or
break waters as may be necessary or desirable
into the waters of Corpus Christ1 hay, and to
fill in the space between the said main land and
the sea walls or break waters of Corpus Christ1
Bay, having first secured a permit from the
Federal Government therefor and all area formed
by such construction and filling in Is hereby
declared to be the property of the City of Corpus
Christi to be used by said city for public pur-
poses only, and said city shall have the right,
power and authority to construct such walks, drives,
parks and buildings for public purposes only on
all of such area as may be deemed suitable or
desirable for such public purposes, and any such
building or structure erected may be rented for
purposes of a public nature and all proceeds de-
rived from such rental ehall be paid into the
general fund of the city; provided, however, that
the city of Corpus Christ1 shall not have the
right to take from Corpus.Chrlstl hay .any sand,
dredge spoil or other material except such as may
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Honorable Grainger McIlhany, page 3 (C-52)
be necessary for the purpose of filling In
between said sea walls or break waters and
the main land, and provided that the City of
Corpus Christ1 shall not place or permit the
placing of any building other than for orna-
mental or civic purposes on said area, except
within the shipping district as hereinafter
defined.
"* * *
"sec. 8. All mines and minerals and
mineral rights including 011 and gas in and
under said land, together with the right to
enter thereon for the purpose of development,
are hereby expressly reserved to the State of
Texas.
"Sec. 9. This grant to the City of Corpus
Chrlsti is upon the express condition, that said
city shall within five years from and after the
passage of this Act, begin the construction of
said sea wall and shall within a period of ten
years complete same, and failure to do so shall
forfeit the grant.
"Sec. 10. Before the City of Corpus Christi
shall begin the improvement herein contemplated,
the Commissioner of the General Land Office shall
fix a price per acre upon the area herein granted,
and when the improvement herein contemplated shall
have been completed, a showing of that fact shall
be made to the Commissioner of the General Land
Office, and the said City of Corpus Christ1 shall
then pay to that officer for the benefit of the
public free school fund of this State, the total
sum due upon such acreage, and upon such showing
and payment the Commissioner of the General Land
Office shall issue a patent thereupon when furnished
proper field notes by the County Surveyor of Nuecee
County, Texas.
"Sec. 11. The right 18 hereby expressly re-
served by the State of Texas and the United States
Government to erect on the lands herein conveyed
such wharves, piers and buildings for State or
Government purposes as many hereafter be authorized
by law.
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Honorable Grainger McIlhany, page 4 (C-52)
"Sec. 12. The fact that the great portion
of the business part of the City of Corpus Christ.1
and all of the shipping district is located on the
edge of Corpus Christi Bay only a few feet above
sea level and the fact that the waves are daily
eroding the shore line of said Bay and destroying
valuable properties, and the fact that a great
number of Texas people and a great number of
people living at Corpus Christ1 and a great num-
ber of visitors from the State of Texas and other
States are living in small houses on the Bay front
and located In such manner as to be wholly unpro-
tected from the gulf storms and the fact that a
great number of said houses and nearly all the
boats in the shipping district of Corpus Christ1
were destroyed by the storm of August 18th, 1916,
create an emergency and an imperative public neces-
sity that the constitutional rule requiring bills
to be read on three several days be suspended, and
that this Act take effect and be In force from and
after its passage, and It is so enacted."
The Glasscock Fill Area comprises approximately 22.47
acres of land, more or less, located on the bayfront at Corpus
Christl, Texas. Examination of the property on the ground shows
that most of It is filled in along the bayfront except for a
small strip of upland along Ocean and Shoreline Drives, being
the crest and toe of the Bluff on the westerly side of this
tract of land. Except for said strip of upland, the fill area,
or land in question, appears to be within the land granted by
the State of Texas to the City of Corpus Christi in the above
statute. It appears that substantial improvements have been
made to this land in the way of fill work and a concrete retain-
ing wall.
The State of Texas issued a patent on the 4th day of
January, 1924, granting to the City of Corpus Christ1 705.78
acres of land described therein embracing a portion of the
waters of Corpus Christi Bay east of Its shore line, and between
the northern and southern boundary lines of the City of Corpus
Christi, "bought and fully paid for on the application of City
of Corpus Christl, filed in the Geieral Land Office November 3,
1923, under Act of March 17, 1919, and providing "all mines
and minerals, and mineral rights Including oil and gas in and
under said land, together with the right to enter thereon for
the purpose of development, are expressly reserved to the State
of Texas."
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Honorable GraingerMcIlhany, page 5 (C-52)
The application for patent filed in the General Land
Office November 3,~1923, states:
" After the passage of the Act of 1919,
and in'the'year 1920, the City of Corpus Christ1
began the construction of a rip rap breakwater
in the waters of Corpus Christi Bay as contem-
plated by both Acts of the Legislature and for
which the funds were provided by the Act of 1917,
~,andhas completed said breakwater as contemplated,
having constructed 3900 feet of rip rap breakwater
at a cost in all to the City of something more than
$630,000 .oo. The seawall or breakwater contemplated
by the Act of 19;7 and the Act of 1919 has been
completed. . . .
A copy of a report dated January 4, 1963, by C. M.
Reynolds, Public Works Coordinator, City of Corpus Christi,
Texas, states:
" . . . Findings indicate with reasonable
certainty that the construction, referred to in
the patent to the City, was actually completed
and accepted, with final payment to the contrac-
tor approved, on 5 August 1921. Work completed
consisted of the first stage of the Breakwater,
being a portion of the Central Arc, as It now
exists. A review of the plans In our files indi-
cates the 3900 lineal feet to be approximately
correct. . . .'
The City of Corpus Chrlstl, Texas, by special warranty
deed dated March 15, 1937, executed by H. R. Giles, Mayor, con-
veyed to C. M. Gordon et ux, certain property in Corpus Christ1
Hay, being part of the land granted to the City of Corpus Chrlsti,
Texas, by H.B. 6, Chapter 68, approved March 17, 1919 (above).
The deed provided that:
" . . . Grantees shall, at his own cost
and expense, raise and fill thearea herein con-
veyed to city grade level and shall conform to
the Hay Front Improvement Plan of the City of
Corpus Chrlsti, when adopted, in the use and
improvement of the property conveyed to them In
this deed."
The deed further provided that:
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Honorable Grainger McIlhany,,page 6 (C-52)
”
Grantees and grantor shall cooperate
In se&&g a decree of the court or a legislative
act, or both, which will quiet the title to the
property herein conveyed as against claims of the
general public, if any, to said property. . . ."
The City Council of the City of Corpus Christi passed
and approved on the 7th day of April; 1937, a resolution author-
izing and directing the execution of a deed to this property
to C. M. Gordon et ux. The pertinent parts ,ofthis resolution
are as follows:
"A resolution authorizing and directing
the mayor of City of Corpus Christi
on behalf of the City to execute a
deed from the City of Corpus Christi
to C. M. Gordon and wife for the ex-
change of certain property rights In
connection with a tract of land situ-
ated within the city limits and
bordering on Corpus Christi Bay and
declaring fan emergency.
"BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
CORPUS CHRISTI:
"Section 1: That the Mayor of the said city
of Corpus Chrlsti, the Honorable H. R. Glles, be,
and he is hereby authorized and directed to exe-
cute a deed conveying the tract of land hereln-
after first described, to C. M. Gordon and wife,
Nrs. C. M. Gordon, of San Antonio, Bexar County,
Texas, in exchange for the property rights as
hereinafter secondly described, which said deed
shall be in substance in the same form as deeds
heretofore executed by the City of Corpus Christl,
to riparian property owners, for the exchange of
like property interests along the bay shore of
Corpus Christ1 Bay, adjacent to the City of Corpus
Christi, Texas, the land to be conveyed by the
City being situated In Nueces County, Texas and
described as follows, to wit:
1 % l *
"Section 2: The fact that the Bluff along
Ocean Drive in the city limits of the City of
Corpus Christi has been eroding and is subject to
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Honorable Grainger McIlhany, page 7 (C-52)
continued erosion, endangering the safety and
protection of Ocean Drive, along the west
boundary line of the lands herein referred to,
and that the exchange of such property rights
would encourage and enable the protection of
such property and Ocean Drive, and that the
protection of the properties involved creates
a public emergency and a public Imperative
necessity requiring the suspension of the
Charter rule providing that no Resolution or
Ordinance shall be passed finally on the date
it is Introduced, and that such Ordinance or
Resolution shall be read at three meetings of
the City Council, and that the Mayor having
declared that such public emergency and impera-
tive necessity exists, and requests that said
Charter rule be suspended, and that this Resolu-
tion take effect and be In full force and effect
from and after its passage, and it is accordingly
so ordained. . . ."
The land In question by mesne conveyances was deeded
to C. G. Glasscock, and then to Scotch Investment Company, a
private Texas corporation, and Is known as the Glasscock Fill
Area.
In 1941, the Legislature enacted House Bill No. 165,
Chapter 40, filed without the Governor's signature March 14,
1941, effective March 17, 1941, which is set forth as follows:
"CORPUS CHRISTI--TITLE GRANTED TO
CERTAIN SUBMERGED LANDS
"H.B. No. 165 CHAPTER 40.
"An Act granting to the City of Corpus Chrlstl,
Texas, all right, title and interest of the
State of Texas to certain land hitherto sub-
merged by the waters of Corpus Christ1 Bay;
ratifying and confirming exchanges and con-
veyances of property within the area to cer-
tain private owners; reserving the minerals
unto the State; declaring that the Act shall
be cumulative of former grants and authorities;
and declaring an emergency.
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Honorable Grainger McIlhany, page 8 (C-52)
"Be it enacted by the Legislature of the State of
Texas:
"Section 1. All right, title and interest
of the State of Texas In and to all land within
the area hereinafter mentioned, hitherto or now
lying and situated under the waters of Corpus
Christi Day, is hereby relinquished, confirmed,
and granted unto the said City of Corpus Christi,
its successors and assigns, for public purposes,
to-wit:
"Beginning at the northeasterly corner of
the city limits of the City of Corpus Christl;
thence southerly along said east boundary line of
said city to its southeasterly corner; thence
westerly along the south boundary line of said
city to its intersection with Ocean Drive; thence
northerly along Ocean Drive, Day View Avenue,
South Water Street, Water Street and the projec-
tion or extension thereof to the north boundary
line of said city limits; thence easterly along
said city limits to the point of beginning.
“Sec. 3.All mines and minerals, and the
mineral rights including oil and gas in and under
said land, together with the right to enter there-
on for the purpose of developing, are hereby ex-
pressly reserved to the State.
“Sec. 4. This Act shall be and is cumulative
of all former grants and authority from the State
of Texas to the City of Corpus Christi.
"Sec. 5. The fact that Chapter 68, Acts of
Thirty-sixth Legislature, 1919, granted to the
City of Corpus Christ1 all title of the State to
to the submerged lands within the area described
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Honorable Grainger McIlhany, page 9 (C-52)
In this Act but the field notes of the patent
issued pursuant thereto omitted certain submerged
tracts that had theretofore been filled; that
the City of Corpus Chrlsti has found it neces-
sary to exchange certain property and convey to
the owners of adjacent private property a portion
of the filled land within such area, In efforts
to quiet City's tit1 , d h private property
owners desire to be-&i%ed"~~ their title,
possession and use-bf::suchproperEy,so conveyed;
and that It is necessary to the completion of
the City's bay fron@ 9mprovementand storm pro-
tection project that its title be quieted, create
an emergency and an imperative necessity that the
Constitutional Rule requiring bills to be read on
three several days be suspended, and said Rule is
so suspended, and this Act shall take effect and
be in force from and after Its passage, and It
is so enacted." (Emphasis added.)
It is noted that the caption of House Bill No. 165,
Chapter 40, effective March 17, 1941, above, refers "to cer-
tain land hitherto submerged by the waters of Corpus Christi
Bay." Your letter states, and Investigation reflects, that the
Glasscock Fill Area was not filled in until deeded to C. G.
Glasscock in 19%.
In 1945 the Legislature enacted House Bill No. 492,
Chapter 253, effective May 28, 1947, confirming the original
grant in the 1919 Act above as to 'that filled in land lying
landward behind the seawall for public purposes." The pertinent
provisions of this Act are set forth as follows:
"An Act to grant, sell and convey to the City
of Corpus Chrlsti, Texas, all right, title
and Interest of the State of Texas to cer-
tain land In said City hitherto .submerged
by the waters of Corpus Chrlsti Bay; . . .
"Section 1. All right, title and Interest of
the State of Texas in and to all land within the
area hereinafter mentioned, hitherto lying and
situated under the waters of Corpus Christ1 Bay
for and in consideration of the sum of Ten Thou-
sand Dollars ($10,000) cash, Is hereby relin-
quished, confirmed and granted unto the said City
of Corpus Christl, its successors and assigns,
for public purposes, to-wit:
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Honorable Grainger McIlhany, page 10 (C-52)
"Being all of that filled-in land lying and
being situated fn Nueces County, Texas, landward
behind the seawall and easterly of the shoreline
of Corpus Christi Bay as shown in Survey No. 803
and in the patent from the State of Texas to the
City of Corpus Christi, Texas, said patent being
dated January 4, 1924, and being Patent No. 86,
Volume 21-A. . . ." (Emphasis added.)
It is noted that House Bill No. 492, Chapter 253,
effective May 28, 1945, referred to "all of that filled-in
land lying and being situated in Nueces County, Texas, land-
ward behind the seawall and easterly of the shoreline of Corpus
Ch i ti Hay )I Your letter states and examination on the ground,
iniizates that the Glasscock Fill'Area is not situated landward
behind the seawall.
The questions presented in your letter, stated above,
require a true and correct interpretation and construction of
the related statutes herein set forth. Black's Law Dictionary,
3rd Edition, defines "construction" thus:
"The process, or the art, of determining
the sense, real meaning, or proper explanation
of obscure or ambiguous terms or provisions in
a statute, written Instrument, or oral agreement,
or the application of such subject to the case
in question, by reasoning in the light derived
from extraneous connected circumstances or laws
or writings bearing upon the same or a connected
matter, or by seeking and applying the probable
aim and purpose of the provision. Quoted with
approval in Kox v. Schneider, 110 Tex. 369, 221
S.W. 880, 884.
Black's Law Dictionary, 3rd Edition, further stated
at page 1000:
"qConstruction' is a term of wider scope
than 'Interpretation'; for while the latter Is
concerned only with ascertaining the sense and
meaning of the subject matter, the former may
also be directed to explaining the legal effects
and consequences of the Instrument in question.
Hence interpretation precedes construction but
stops at the wrltten text."
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Honorable Grainger McIlhany, page 11 (C-52)
House Bill No. 6, Chapter 68, approved March 17, 1919,
set forth above, granting to the City of Corpus Christ9 certain
land lying under the waters of Corpus Christi Hay, including the
Glasscock Fill Area, #ranted the land "to the said city for
public purposes only. Section 9 of the Act provided th??t?"thls
grant t th Cit f Corpus Christi Is upon the express condl-
tlon, t:at zaid iizy shall within five years from and after the
passage of this Act, begin the construction of said seawall
and shall within a period of ten {ears complete same and failure
to do so shall forfeit the grant.
In 4 Lange, Texas Practice, Land Titles, Section 340,
it Is stated that:
"If the language imposes a duty on the gran-
tee to do something, or to refrain from doing some-
thing, or that only a certain use shall be made of
the property, then it may not be construed as a
special limitation and must be construed either
as a condition subsequent or as a covenant. Nor-
mally, also, there must be language of re-entry if
a condition subsequent is created, and language
of reversion or revesting of the property in the
case of a determinable fee. Further, as concerns
conditions, a forfeiture Is generally only decreed
if the grantee, his heirs, successors or assigns,
refuse to comply with such conditions.
". . . a breach of a condition does not
operate ipso facto as a forfeiture of the estate;
nothing short of an actual entry will serve to
defeat an estate upon a condition which has been
broken; . . ."
In Section 341, same volume, It is stated that:
"
. . . a condition subsequent Is one which
operates upon an estate already created and vested
and renders it liable to be defeated, but not as
a limltatlon of the grantee's title. Any doubt
as to the type of condition, whether precedent or
subsequent, is resolved In the view that such condi-
tion Is a condition subsequent rather than a condl-
tlon precedent. The remedy of a grantor upon
condition broken is by way of trespass to try title
action and not by way of suit to rescind or cancel
the deed. . . ."
-24-7-
Honorable Grainger McIlhany, page 12 (C-52)
In City of Dallas v. Etheridge, 152 Tex. 9, 253
S.W.2d 640 (1952). the Suureme Court, Chief Justice Robert W.
Calve?%, then Associate Justice, held that where condition in
conveyance of a tract of land to city provided that city should
use the land for park purposes only, that no building or other
improvements should be erected upon certain portion of the
tract, and that the violation of any of the provisions of the
conveyance would at grantor's option terminate the grant, the
condition was a condition subsequent, and hence, the construc-
tion by city of a street across such restricted portion was a
breach of condition which would entitle grantor's successors
in interest to exercise the option and to maintain trespass to
try title action to recover possession.
In Zachry v. City of San Antonio, 305 S.W.2d 558
(1957), the Supreme Court, Grlffl J tl held that where
land had been used as a public paik y:r g%e than 100 years,
and there was never any abandonment of the park, lease of a
protion of the park by the city to an individual for 40 years
for the construction of an underground parking garage was void.
The court said that "all such property (acquired for and
actually dedicated to the public use of its inhabitants) is
held by the municipality in trust for the use and benefit of
its citizens, and is dedicated to the use of the public, and
the corporation cannot divest Itself of title without special
authority from the Legislature. It is only where the public
use has been abandoned, or the property has become unsuitable
or inadequate for the purpose to which it was dedicated $hat
a power of disposition is recognized in the corporation.
Section 8, Article XI of the Texas Constitution reads
as follows:
"Sec. 8. The counties and cities on the Gulf
Coast being subject to calamitous overflows, and a
very large proportion of the general revenue being
derived from those otherwise prosperous localities,
the Legislature is especially authorized to aid by
donation of such portion of the public domain as
may be deemed proper, and in such mode as may be
provided by law, the construction of sea walls, or
breakwaters, such aid to be proportioned to the
extent and value of the works constructed, or to
be constructed, in any locality."
In Attorney General's Opinion No. o-6817 (1945), It
was held as follows:
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Honorable Grainger McIlhany, page 13 (C-52)
”
. . . When, as an engineering fact, it is
necessary to replace, raise, and strengthen the
Inside bulkheads of the retaining wall In order
to support the outside seawall, It is our opinion
based on th foregoing authorities that such
constructioi would constitute 'an &sentlal and
necessary and component part of th; seawall pro-
ject' at Port Lavaca, Texas. . . .
Attorney General's Opinion No. o-6817 (1945) cites
pertinent authorities as follows:
,I In the case of the First National
Hank of Port Arthur v. City of Port Arthur et
al, 35 S.W. (2d) 258, the Beaumont Court of Civil
Appeals said:
"'Counsel for appellees, in their brief,
call our attention to a number of general rules
of construction pertaining to constitutional
provisions. One of these rules Is that referred
to by our Supreme Court In Walker v. Meyers, 114
Tex. 225, 266 S.W. 499. The general rule there
referred to is that contemporaneous and practical
construction of constitutional provisions by the
Legislature in the enactment of laws should have
great weight and give rise to a natural presump-
tion that the legislative construction rightly
Interprets the meaning of the provision. In
connection with this general rule, counsel for
appellee in their brief direct our attention to
the several acts at different times of the Texas
Legislature granting aid to Gulf Coast cities
under section 8, article 11, of the Constitution.
One of these is the act granting aid to the city
of Galveston shortly after the destructive gulf
hurricane in 1900. Another is the act grantlv
aid to the city of Corpus Christi; another is+the
act granting aid to the city of Freeport; another
is the act granting aid to the city of Rockport;
another is the act granting aid to the city of
Port Lavaca; another is the act granting aid to
the city of Aransas Pass. In this connection
counsel contend, and undertake to sustain the
contention, that the Legislature in each of the
instances above stated gave a broad and liberal
-249-
Honorable Grainger McIlhany, page 14 (C-52)
construction to section 8 of article 11 of the
Constitution and that the Legislature in those
instances did not construe that section to limit
state aid to Gulf Coast cities for the construc-
tion of sea walls and breakwaters, that is, to
those physical structures themselves, but con-
strued section 8 in a broad way so as to give
aid to those Gulf Coast cities In the construc-
tion of works not actually a part of a sea wall
OP breakwater. We shall not dwell upon this
suggestion of counsel, though we are impressed
with the force of this suggestion and the argu-
ment in connection. Other general rules of
interpretation and construction may be said to
be the following:
"'1. The intention of the makers of the
Constitution will be ascertained, and when that
intention Is so ascertained, whether expressed
in plain language or not, such intent becomes as
much a part of the law as if it had been expressed
in plain and unequivocal terms. This was the rule
announced by our Supreme Court In Mills County v.
Lampasas County, 90 Tex. 606, 40 S.W. 403.
"'2. Legislation, organic or statutory, must
be reasonably construed and in a manner not repug-
nant to common sense. This rule Is announced In
Queen Insurance Co. v. State, 86 Tex. 250, 24 S.W.
397, 22 L.R.A. 483, and in St. Louis S.W. Railway
Co. of Texas v. Tod, 94 Tex. 632, 64 S.W. 778.
"'3. A public grant for a public advantage
should be liberally construed in an endeavor to
accomplish the purpose of the grant. This rule
was announced In Aransas County v. Coleman-Pulton
Pasture Co., 108 Tex. 216, 191 S.W. 553.
“‘4. In construing a law it will be presumed
that the creators of same are familiar with the
conditions to be relieved against and the condition
of the county to which the act Is applicable.
Winona & St. P.R. Co. v. Barney, 113 U.S. 625, 5
S.Ct. 606, 28 L.Ed. 1109.
-250-
.
Honorable Gralnger McIlhany, page 15 (C-52)
"'5 . If possible, that construction will be
adopted which will promote the public Interests
in accord with sound economic policy. This rules
was referred to in State v. DeGress, 72 Tex. 242,
11 S.W. 1029.
"'6. In the construction of Constitutions,
as well as statutes, the powers necessary to the
exercise of power clearly granted will be Implied.
This rule was referred to In Texas Cent. R. Co. v.
Rowman, 97 Tex. 417, 79 S.W. 295.
"'7. Where a general power Is conferred, every
particular power necessary for the exercise of same
is also conferred, whether expressly granted or not.
This is the rule laid down in Cooley's Constitutional
Limitations (8th Ed.) vol. 1, page 138.
"'In addition to the above general rules of
interpretation, we think that the rule announced
by our Supreme Court, through Chief Justice Phillips,
in Aransas County et al. v. Coleman-Fulton Pasture
Company, 108 Tex. 216, 191 S.W. 553, 554, where
section 52 of article 3 of our Constitution was
under construction, Is the rule of greatest appllca-
tlon to the facts in this case. It is as follows:
"qnThe spirit, purpose and scope of the
particular provision are all to be consulted in
the effort to determine with certainty the mean-
ing of its terms."
n'Applying that rule In this case, we have no
hesitancy in concluding that the expenditure by
the city of Port Arthur of Its bond money above
mentioned for the work done by the Central Con-
struction Company in constructing the Stllwell
Storm Drain was not prohibited and would not be
in violation of section 8, article 11, of the
Constitution. The spirit and the purpose that
actuated the framers of that article was mainly
the protection of the lives and property of people
in cities situated on the Gulf Coast and always
exposed to danger and hazard of the sea. Protec-
tion to those people and their property, we say,
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Honorable Grainger McIlhany, page 16 (C-52)
was the main and controlling thought, and in
addition to that, and as incidental to that,
was the benefit that would redound and accrue
to the people of the whole state of Texas by
protecting such of its citizens as live in the
exposed cities. It was known that many Texas
counties and cities were so situated upon the
Gulf Coast as to be constantly exposed to the
ravages and destruction of gulf hurricanes, and
the purpose of the framers of the article was
to give protection, as far as possible through
human skill and agency, to the lives and prop-
erty of our citizens exposed to such hazards~.
"'We think that the trial court, under the
evidence in this case, was correct in finding
and concluding that the construction of the
Stilwell Storm Drain, as contemplated, was an
essential and 'necessaryand component part of
the sea wall project at Port Arthur, and that
therefore the Stilwell Storm Drain when com-
pleted will be a part of the sea wall in the
sense in which that term Is used in section 8,
article 11, of the Constitution.' . . .ll
In the case of City of Aransas Pass et al. v. Keeling,
. 112 Tex.,339, 247 S.W. 818, the Supreme Court In the op+on by
Justice Greenwood stated:
"This suit is brought by the city of Aransas
Pass and by the mayor of said city against the
Attorney General of the state of Texas, for a
mandamus to compel the approval of bonds, issued
by the city in the principal sum of $213,000.
"The Thirty-Sixth Legislature, at its third
called session, passed an-act (Acts 36th Deg.
flg2g 3d Called Seas. c. 22) which became effec-
tive on September 17, 1920 entitled:
"'An act to aid the City of Aransas Pass
in constructing and maintaining sea walls, break-
waters and shore protections In order to protect
said city from calamitous overflows, by donating
to it the eight-ninths (8/g) of ad valorem taxes
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Honorable Grainger McIlhany, page 17 (C-52)
collected on property and from persons In San
Patriclo county for a period of twenty years,
providing a penalty for the misapplication of
the moneys thus donated, and declaring an
emergency.'
"* * *
"The Attorney General urges that the dona-
tion act is unconstitutional and void for the
following reason:
"* * *
"Second. That the act violates section 51
of article 3 of the Constitution, denying power
to the Legislature to make any grant of public
money to a municipal corporation.
"+ * I
"The act makes no grant of public money as
forbidden by section 51 of article 3 of the Consti-
tution. The state here bestows no gratuity. The
people of the state at large have a direct and
vital interest In protecting the coast cities from
the perlls of violent storms. The destruction of
ports; through which moves the commerce of the
state, is a state-wide calamity. Hence sea walls
and breakwaters on the Gulf coast, though of spe-
cial benefit to particular communities, must be
regarded as promoting the general welfare and
prosperity of the state. It is because of the
special benefits to particular cities and counties
that special burdens on property within their
boundaries, through taxation, are justified. But
the state, in promoting the welfare, advancement,
and prosperity of all her citizens or in aiding
to avert injury to her entire citizenship, cannot
be regarded otherwise than B;a performing a~
proper function of state government. Cities or
counties furnish convenient and appropriate agen-
cies through which the state may perform duties
resting on the state, in the performance of which
the cities or counties have a special Interest.
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. .
Honorable Gralnger McIlhany, page 18 (C-52)
The use of the cities or counties as agents of
the state in the discharge of the state's duty
is in no wise inhibited by the Constitution in
section 51 of artlcle,3. Bexar County v. Linden,
110 Tex. 344 to 348, 220 S.W. 761; City of
Galveston v. Posnainsky, 62 Tex. 127, 50 Am.
$p, ;17Q3;eaver v. Scurry County (Tex.Civ.App.)
. . .
"We have concluded that section 8 of article
11 of our Constitution expressly authorized the
Legislature to grant such aid to the counties and
cities on the Gulf coast In the construction of
sea walls and breakwaters, as was extended to
Aransas Pass. This section reads:"
Section 8, Article XI quoted above.
"+ * +
"While these words admit of the lnterpreta-
tlon that state aid to these works was to be ex-
tended only by donation of the public domain in
a mode to be determined by the Legislature, yet
they are obviously as susceptible of the meaning
that the Legislature was empowered to extend state
aid in any different manner adopted by the Legls-
lature. Viewed in the light of other related con-
stitutional provisions, we have no~doubt that the
latter Is the true meaning to be ascribed to the
section. The express wording of the section
recognizes a state interest and a state obligation
‘in the protection of coast settlements from Calamf-
tous overflows. It must have been known that before
many years the public domain would be exhausted.
It would be unreasonable to assume that the framers
of the Constitution did not intend to make,it possible
for the Legislature to discharge anobligation which
would be just as binding after as before the exhaus-
tion of the public domain. The provision for state
aid immediately follows provision for the construc-
tion by coast cities and counties of sea walls and
breakwaters through taxation and bond Issues. By
section 10 of Article 8 the Legislature was ex-
pressly empowered to entirely release state and
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. -
Honorable Grainger McIlhany, page 19 (C-52)
county taxes 'in case of great public calamity.'
Can sound reasons be given for asserting that it
was intended to authorize the state to extinguish
all obligations in certain subdivisions of the
state for the payment of state and county taxes,
for such period as the Legislature might deem
necessary, because of great public calamity, and
yet not allow relief to the sufferers from such
calamity and benefit to all the people of the
state through the utilization of the same taxes
in building protective works? Any doubt as to
the Intent of the Constitution to authorize the
grant of public money in case of public calamity
is removed by the language of original section 51
of article 3 of the Constitution. For it expressly
provided that the denial to the Legislature of the
power to make 'any grant, of public money' should
'not be so construed as to prevent the grant of
aid in case of public calamity.' Keeping In mind
these related provisions of the Constitution, It
seems clear to us that It was the design of sec-
tion 8 of article 11, when it was adopted, toem-
power the Legislature to give the state's aid, by
grant of the public domain or state taxes, or in
any other appropriate manner, to the construction
by coast cities and counties, through bond issues,
of protective sea walls and breakwaters; and that,
In the exercise of this power, the Legislature was
not limited by the terms of section 6 of article
8, forbidding the appropriation of publlcnmoney
for a longer period than two years. . . .
(Emphasis added.)
In 1930 the Legislature passed House Bill No. 90,
Chapter 42, "CONFERRING AUTHORITY ON CITY OF CORPUS CHRIST1
RELATING TO CHANNEL AND SHIPPING DISTRICT."
Section 1 provided:
"That section 6 of Chapter 68, General Laws
of the 36th Legislature, Regular Session, 1919,
be amended so that said Section shall hereafter
read as follows:
n 'The city of Corpus Christ1 Is hereby
authorizdd'to adjust by suit.or otherwise or adopt
compromise by ordinance, determining, defining and
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- .
Honorable Grainger McIlhany, page 20 (C-52)
fixing the boundary line between the area patented
by virtue of said Chapter 68'and the private prop-
erty and the rights and claims of property owners
along the shore line of Corpus Christ3 Bay and
thereby adjust and quiet the title to said
patented area for the purposes designated in
said Chapter 6B ) .and adjust and quiet the title
of said private property owners.'"
House Bill No. 165, Chapter 40, supra, passed by the
Legislature In 1941 covered the area where the Glasscock Fill
is located, as shown in the description of the property covered
by the 1941 Act. It is true that the caption of the 1941 Act
refers to "certain land hitherto submerged by the waters of
Corpus,Christi Bay."
Webster's New International Dictionary, 2nd Edition,
Unabridged, defines the word hitherto as, %p to this time; as
yet; until now." Black's Law Dictionary, 4th Edition, defines
the word hitherto as, "in legal use this term always restricts
the matter In connection with which it Is employed to a periot
of time already passed. Mason v. Jones, 13 Barb. (N.Y.) 479.
Section 1 of the 1941 Act refers to "all land within
the area hereinafter mentioned, hitherto or now lying and situ-
ated under the waters of Corpus Christi Bay."
As stated above, the Glasscock Fill Area was not
filled in until 19%. Accordingly, it is consistent that the
1941 Act included the Glasscock Fill Area even though it was
submerged at the time of the Act. As shown above, the City of
Corpus Chrlsti, Texas, conveyed the area now known as the
Glasscock Fill Area, to C. M. Gordon et ux by deed dated March
15, 1937.
Section 2 of the 1941 Act, supra, provides:
"All exchanges of property and conveyances
hitherto made by the city of Corpus Christ1 to
property owners within the area described In Sec-
tion 1 are hereby ratified; and such property is
confirmed, relinquished, and granted unto the
respective assignees of the City of Corpus Christi,
and to their heirs, successors and assigns, with-
out limitation as to use thereof to be made by
them."
-256
Honorable Grainger McIlhany, page 21 (C-52)
It Is therefore apparent that this section of the 1941
Act Is applicable to the Glasscock Fill Area conveyed by~the
City of Corpus Christi to C. M. Gordon et ux on March 15, 1937.
As shown above, Section 2 of the resolution by the
City Council of the'City of Corpus Christl, approved April 7,
1937, authorizing this conveyance to C. M. Gordon et ux, pro-
vided:
"The fact that the Bluff along Ocean Drive
in the city limits of the City of Corpus Christ1
has been eroding and is subject to continued erosion
endangering the safety and protection of Ocean Drive,
along the west boundary line of the lands herein re-
ferred to, and that the exchange of such property
rights would encourage and enable the protection of
such property and Ocean Drive, and that the,protec-
tion of the properties involved creates a public
emergency and a ublic Imperative necessity . . .'
(Emphasis added.P
As above stated, the deed by the City of Corpus
Christi, Texas, to C. M. Gordon et ux, provides:
" . . . Grantees shall, at his own cost and
expense, raise and fill the area herein conveyed
to city grade level and shall conform to the Bay
Front Improvement Plan of the City of Corpus
Chrlsti, when adopted, in the use and improve-
ment of the property conveyed to them In this
deed." (Emphasis added.)
In the First National Dank of Port Arthur v. City of
Port Arthur, et al case, supra, the opinion states:
Counsel for appellant and the Attorney
General in-this connection direct our attention to
the definition of the term 'sea wall,' as given by
the New Century Dictionary, volume 4, page 411.
As there ~defined, a sea wall is:
"'A cliff by the sea, a wall formed by the
sea; a strong wall or embankment on the shore
designed to prevent encroachment of the sea to
form a breakwater. An embankment of stone
thrown up by the waves on a shore.'"
-257-
Honorable Gralnger McIlhany, page 22 (C32)
It Is clear, therefore, that the exchange and the
conveyance by the City of Corpus Christi to C. M.,Gordon ex ux
of the area now known as the Glasscock Fill Area, as part of
the exchange, was for public purposes In connection with the
Pay Front Improvement Plan of the City of Corpus Chrlstl, and
was In exchange for land needed by the City of Corpus Christ1
for Its Bay Front Improvement Plan, as contemplated by the
statutes, and therefore was for a public 'purpose.
In view of the above authorities and reasons stated,
It is therefore clear that this conveyance by the City of
Corpus Christ1 to C. M. Gordon et ux of the area comprising the
Glasscock Fill was for a public purpose and therefore is not In
violation of Article 3, Section 51 of the Constitution of Texas,
which provides:
"Sec. 51. The Legislature shall have no
power to make any grant or authorize the making
of any grant of public moneys to,any individual,
association of lndivlduals, mu$clpal or other
corporations whatsoever; . . .
and Is not in violation of Article 3, Section 44 of the Consti-
tution of Texas, which provides:
“The Legislature shall . . .'nor grant, by
appropriation or otherwise, any amount of money
out of the Treasury of the State, to any indlvid-
ual, on a claim, real or pretended, when the same
shall not $ave been provided for by pre-existing
law; . . .
and is not contrary to the holding of the court in State v.
Perlstein, et al, 79 S.W.2d 143 (Civ.App. 1935, error dlsm.),
which held under the facts in that case a conveyance of State
land to a private Individual void '. . . because the officers
executing it had no authority in law to do so. . . .'
Therefore, in view of the above authorities, when
this land was originally granted to the City of Corpus Christ1
under the 1919 Statute, supra, the grant was made with the
condition subsequent that the seawall be completed as pro-
vided In the statute. It appears that the seawall or break-
water has been completed as contemplated by the statute and
thereafter a patent was issued by the State of Texas to the
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_ ,.
Honorable Gralnger McIlhany, page 23 (C-52)
City, providing that the land was bought and fully paid for on
the application of,City of Corpus Chrlsti. Even in the event
of a condition broken,~the remedy of a grantor Is by way of
trespass to try title action to recover possession and not by
ipso facto reverter. The exchange was for public purposes and
in furtherance of the State's Interest and the State's obllga-
tlon to protect coast settlements from calamitous overflows,
in connection with the Corpus Chrlsti Ray Front Improvement
Plan, and the conveyance was for land needed by the City as
contemplated and authorized by Section 8 of Article XI, and
as authorized and confirmed by the statutes. The 1930 Act
authorized the exchange for such public purposes and the 1941
Act validated It, and the Legislature stated in the Act that
the exchange was %ecessary to the completion of the City's
bay front Improvement and storm protection project." This ex-
change of properties asauthorized and later ratified by the
Legislature was clearly for the purpose for which the original
grant was made.
Therefore, your first question is answered that the
Glasscock Fill Area has not reverted to the State. Your second
question Is answered that the Glasscock Fill Area has been law-
fully conveyed by the City of Corpus Chrlsti, as it was for ex-
change of land needed to further the State's interest and the
State's obligation to protect coast settlements from calamitous
overflows, and such exchange was for a State public purpose.
Your third question Is answered that the State of Texas presently
owns all mines and minerals, and mineral rights including oil
and gas in and under the Glasscock Fill Area, together with the
right to enter thereon for the purposes of development.
SUMMARY
1. The Glasscock Fill Area has not reverted
to the State.
2. The Glasscock Fill Area has been lawfully
conveyed by the City of Corpus Christl, as It was
for exchange of land needed to further the State's
interest and the State's obligation to protect
coast settlements from calamitous overflows, and
such exchange was for a State public purpose.
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. _
Honorable Grainger McIlhany, page 24 (C-52)
3. The State~of Texas presently owns all
mines and minerals, and mineral rights lncluding~
oil and gas in and under the Glasscock Fill Area,
together with the right to enter thereon for the
purposes of development.
Yours very truly,
WAGGONER CARR
Attorney General of Texas
BY I
Ben M. HCrrisod
Assistant
BMS:afg
APPROVESD:
OPINION COMMITTEE
W. V. Geppert, Chairman
H. Grady Chandler
J. S. Bracewell
Edward Moffett
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone
-260-