Untitled Texas Attorney General Opinion

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: -237- 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 -238- 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. -239- 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." -240- 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: -241- 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 -242- 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. -243- 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 -244- 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: -245- 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." -246- 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: -248- 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, -251- 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 -252- 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. -253- . . 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 -254- . - 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 -255- - . 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 -258- _ ,. 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. -259- . _ 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-