Untitled Texas Attorney General Opinion

Hon. Bascom Giles, Commissioner General Land Office Austin, Texas Opinion No. V-7g2 Re: Authority of the School Land Board to sell or lease a 110 acre tract of land acquired by the State in the purchase of a site for Prairie View Normal and Industrial College ,DearSir: You have asked us whether a certain 110 a&e tract of land in Waller County vnow belongs to the Rub- lit Free School Fund under the Drovisionsof Article 5421~ of Vernon's Civil Statutes D e *,and does the School Land Board have authority to either lease or sell said land," We answer both questions in the neg- ative. The tract in question was conveyed in 1877 by deed to R, B, Hubbard, Governor of the State of Texas and his successors in office, when the site of Prairie View Normal and Industrial College was pur- chased, in considerationof the purchase of certain other land, The conveyancewas *to and for any and all uses and purposes to which the same may be appro- priated destinated or in any manner utilized by the grantee herein mentioned, o 0 .n The land was described in the deed as follows: ” 0One hundred and ten (110) other ac- a 0 res of land off of a three hundred and twenty (320) acre survey patented to the heirs of Sol- omon Smith No, 726, Vol, 11 the said one hun- dred and ten (110) acres lying on the south side of said three hundred and twenty (320) and ad- joining the said Law Survey and is described by Hon. Dascom Giles, Page 2 (V-782) metes and bounds in Decree of Tartition in Dis- trict Court of Austin County in Matters Pro- bate between Helen M. Kirby and the Estate of Jared E. Kirby, dec'd., to which reference is here made for more particular description." You have not furnished us with copies of the instrumentson file in your office relating to the lo- cation, survey and patenting of the Solomon Smith Sur- vey in tiallerCounty. Volume 1 of "Abstractof All Original Texas Land Titles Comprising Grants and Loca- tions to August 31 1941," prepared by you shows that tent No. 726, Vol. 11, for 320 acres of land in Wal- Fer County was issued on November 17, 1854, to the H&s of Solomon Smith. Since you raise no question,we take it that you deem the Solomon Smith Survey and patent to be valid and the 110 acre tract to be included therein. The Act to establishan Agriculturaland Me- chanical College of Texas for the benefit of the col- ored youths was approved August 14 1876, It provided' for the establishmentof such a college; authorizedthe Governor to appoint a Commissionto select a site, con- taining not less than five hundred acres of land suit- able for agriculturalpurposes; authorizedthis commis- sion to receive donations of land and money to aid in the erection and maintenance of the college; and placed the college,,when located and established,under the supervisionand control of the Board of Agricultural and Mechanical College. This Act appropriatedthe sum of twenty thousand dollars, or so much as deemed neces- sary to locate, erect furnish and operate the college. (See Acts 1876, p$ 136,) The deed in 1877 ~,toGovernor Hubbard,,previ- ously referred to, conveyed 800 acres in consideration of the sum of $12,000 in treasury warrants; and "in considerationof the sale of said eight hundred (800') acres," the grantors did "give, grant and donate" to the Governorand his successors 588 acres adjoining the 800 acres and for the same purpose, the 110 acre tract now in &aestion. It is clear from the deed and from the Act that the 110 acre tract was acquired by the State for the purpose of establishingand locating the contemplatedcollege. Though not expressly stated in the deed, title so acquired isin the State of Tex- as. Walsh v. University of Texas, 169 S,N, 2d 993 ('Xv, App., 1942, writ ref,) Hon. Bascom Giles, Page 3 (V-7821 According to your letter, this tract has nev- er been used by the State. In fact, it is recited in H,C.R. No. 4l of the 49th Legislature, 1945, that the tract has been within the enclosure of a private citi- aen and in constant use, by him, we presume, for more than twenty-five years, It is not stated whether such possession is adverse, under claim of title, or in rec- ognition of title in the State, We have been furnished no abstract from which we could determine whether or not the State acquired good title under its deed. Such title, if acquired could not be lost by adverse pos- session, Art. 551+, V. C. S, The college for which this land was acquired is under the control and supervision of the board of directors of the Agriculturaland Mechanical College, with the same powers and duties as conferredby law for the government of the Agriculturaland Mechanical College. Art. 2638, R.C.S.; Arta 2643b, Sec,2, V.C.S, Our opinion V-320, dated June 30, 1947, held that nei- ther the Local Board of Managers of North Texas Agri- cultural College, nor the Board of Directors of Texas Agriculturaland Mechanical College was authorizedto convey an excess tract of land except through act of the Legislature. Our opinion O-2417 dated June 24, 1940, held that neither such Board 0) Directors,the Land Commissioner,the Board of Coutrol, nor the At- torney General had statutory authority to execute a conveyanceof certain lands theretofore acquired by the Agriculturaland Mechanical College. We believe these opinions to be correct and therefore concludes that there is no statutoryauthority for the sale of the 110 acre tract of land in Waller County which was acquired for the State under the authority of the Act to establish an Agriculturaland Mechanical College of Texas for the benefit of colored youths, The Legisla- ture seems to have been of the same opinion, since in 1945 it attempted by resolution to authorize the Com- missioner of the General Land Office to sell this land. H, C, 8, No, 41, 49th Leg., 1945. There is no State official or board vested with general sales power over state-ownedlands. The Commissionerof the General Land Office is a ;;;stiF- tional officer of the Executive Department. Sec. 1, Constitutionof Texas. He is required tAnpek form such duties as are or may be required of him by Hon. Bascom Giles, Page 4 (V-782 1 law." Id. sec. 23. He has no .authorityexcept that which has been conferredupon him by law. 34 Tex., Jur. 31. The General Land Office itself is not a sales office. It is the office "&here ali land ti- tles which have emanated or Maryhereafter emanate from the State shall be registered. . . ." Art. XIV, Sec. 1, Const. of Texas; 34 Tex, Jur.28, 29. The power and duty to sell public school land is in the Legislature, Art. VII Sec. 4, Const, of Tex@. As stated in Schneiderv. tipscomb Co, N. F:L. Ass'n: "T&e Commissionerdoes not make the sale. It is aEcomplishedby the offer made by the State in the statute which prescribes the terms and conditions of the sale, and by the acceptance of the offer by the intending pur- chaser in his taking the several steps for purchase as set out in the statute." (202 S.W, 2d 832 at 836, Tex. Sup., 1947.) The Legislaturemay impose upon the heads of the Executive Departmentduties regarding such lands. Arnold v. Stat.e,71 Tex.'239, 9 S.W. 120 (1888). Between the abolition of the State.Land Board in 1887,and the creation of the School Land Board in 1939, the duty to pass upon applications to purchase was placed upon the Commissioner of the General Land Office. As stated by Mr, J. H. Walker in his 1934-1936Report: "The constitutionalfunctionsof the of-. fice of Land Commissionerare restrictedto the registrationof titles and activities in- cident thereto. The basic enactmentwas in line with prior constitutionsand legislation which imposed upon the commissionersonly min- isterial duties. The selling and granting of land were placed,withother authorities. NOW the Commissioneris at the head of a great bus- iness institution." (p. 4.1 The duties of the School Land Board are pre- scribed by Articles 5421~~3, 5421c-4 and 5421c-5,V.C.S, Hon. Bascom Giles, Page 5 (V-782) Like the Land Commissioner,the other members of the Board, the Governorand Attorney General are execu- tive officers performing "such other duties as may be required by law." See Art. IV Sec. 22, Const. of Texas. The Act creating this board requires, in sub- stance, that it advertise school lands for lease or sale and entertain and pass on bids therefor. H.B. 9, Acts 1939, pe 465. It has no powers not related to these functions or not otherwise conferredby law. Your letter refers to Article 5421c, V.C.S. Section 1 thereof reads as follows: "All lands heretofore set apart to the public free school funds under the constitu- tion and laws of Texas and all the unappro- priated and unsold public domain remaining in this State of whatever character,except riv- er beds, and channels, and islands, lakes and bays and other areas within tide water limits, are subject to control and sale under the pro- visions of this Act." It is, perhaps, this provision which has raised the question of the authority of the School Laz& Bprg t; sell the 'WailerCounty land. Article Ds sets apart and grants to the permanent scho;l &n;: n 0 all lands heretofore set apart under ihe"constitutionand laws of Texas, and all of the unappropriatedpublic domain re- maining in the State of whatever character, and wheresoeverlocated, includingany lands hereafter recovered by the State except that included in lakes, bays and islands along the Gulf of Mexico within tidewater limits.* We note that the wording of Article 5416 and that of Section 1 of Article 5421~ is very similar. It would be reasonable therefore to construeArticle 5421~ as placing on the market for sale only that part of the public domain belonging to the school fund. Indeed, this was the view taken in 1941 by Hon. George W. Barcus, then Assistant Attorney General and now a member of your department. In his brief in Hon. Bascom Giles, Page 6 (V-782) Ra v. State Mr. Barcus wrote as follows regarding the --=+i--’ aut ority under Article 5421~ to sell an alleged unsup- veyed area of public domain: "Upon examiningthe caption of the Act, we find the definite statement that the Act is one 'to regulate the sale and lease of lands set apart for the benefit of the public free school fund' and to provide for the dis- position and sale of minerals in certain coast- 61 areas and '811 unsold public free school lands, both surveyed and unsurveyed' d ser part in the caption, we find'tahzt%e Act is one 'providinggenerally the method and means for the sale of public school lands and the lease and development of the public school lands and coastal areas'.* (Emphasisin orig- inal.) "At no place in the caption do we find any mention nor any language used which indicates that any lands other than public free school land is included within the sale, provisions and regulations of the Act, or that any area other than public free schoollandand certain coastal areas are includedwithin the leasing provision. o .of the Act, with the exception of,a special class of e Q D land which is spe- cially treated in Section 5. "It is true that if Section 1 is consid- ered alone and without relation to the caption of the Act or to remaining sections the word- ing of such isolated section is broad enough to include any land in Texas except river beds and certain coastal areas. "Appellee in the case at bar contends that when all of the provisions of Article 5421~ are read as a comprehensivewhole and in connection with the caption of said Act Section 6 of the &zt must be construed to authoriae and dea$hFth the sale of unsurveyed school land ,only. land described in applicantrsapplicationnever having been appropriatedto the school fund, it follows that an intended sale thereof under Ar- ticle 5421~ is unauthorizedby law. o a 0n (Ap- pelleets brief, Ray v* State, 153 S.WO 2d 660, Hon. Bascom Giles, Page 7 (V-782) No. 8992 in Austin Court of Civil Appeals, 1941, error ref. W.M.) This constructionis supported by the terms of the Act. The "vacant and unsurveyed land" subject to sale or lease under Section 6 of Article 5421~ is now specificallydefined as "an area of unsurveyed school land. . . ." The surveyed land subject to sale is defined as: ‘1 , all tracts or parts of tracts l . heretofore surveyed either on the ground or by protraction,and set apart for the public school funds and which is unsold, and for which field notes are on file in the General Land Office or which may be delineated on the maps of said office as such. . . ." The School Land Board Act of 1939 likewise ;;pfTrt;h;hisconstruction. (H.B. 9, Acts 1939, p. s act sets apart the mineral estate in is- lands and certain submergedareas to the School Fund and provides (Sec. 5) that: "All lands set apart for the permanent free school fund and the several asylum funds by the Constitutionand the laws of this State and the mineral estate in river beds and channels and the mineral estate in all area* within tidewater limits. . . are subject to control and disposition in accordancewith the provisionsof this section and other per- tinent provisions of this Act and other laws not in conflict herewith. . D aIt (Art. 5421c-3, Sec. 1, V.C.S.) Chapter 498, Acts 1941, makes the same pro- vision, though in slightly different words. Under the previoue constructionby this of- fice as expressed in the aforementionedbrief, the crucial inquiry is whether the 110 acre tract patented in 1854 as part of the Solomon Smith survey and ac- uired by the State in the purchase of the site for airie View in 1877, has ever been set apart for the ilr public school fund. Under a broad constructionof Article 5421c, the inquiry is whether this tract is Qnappropriated . . . public domain." Hon. Bascom Giles, Page 8 (v-782) The lands set apart to the school fund under the Constitutionare the following: "All funds, lands and other property here- tofore set apart and appropriatedfor the sup- port of public schools; all the alternate sec- tions of land reserved by the State out of grants heretofore made or that may hereafterbe made to railroads or other corporationsof any nature whatsoever;one-half of the public do- main of the State; and all sums of money that may come to the State from the sale of any por- tion of the same, shall constitutea perpetual school fund.". Article ~VII,Sec. 2, Constitution of 1876. see Hogue v. Baker, 92 Tex. 58, 45 S.W. 1004 (ld98,. It is ourconclusion that the above provision does not affect the status of a tract of patented land ;;q$r;d for a legislativepurpose by the State in 1877 The prior laws setting apart funds and lands to the &chool fund have been reviewed. None concern patented land reacquired by deed. See Constitutionof 1845, Article X, Sec. 2; Act of Jan. 31, 1854, 3 Cam. Laws 1461. Act of August 29, 1856 4 Gam. Laws 525; Act of Feb. 11, 1858, 4 Gain.Laws 1061; Constitutionof 1866, Article X, Sec. 3; Constitutionof 1869, Article I&sse;f76; and Act of March 18, 18'73$ 3 Sayles Early 9 0 The Solomon Smith Survey was not an "alternate section," Nor was this patented survey "public domain" in 1876. See Day Land and Cattle Co. v. State, 68 Tex. 526 at ,547,548 4 S.W. 865 (18871,; Kuechler v. Wright, 40 Tex. 600 at A46 ~~( 1874); Decourt v. Sproul, 66 Tex, 368 (1886); Mills v. Needham, 67 S.W. 1097. (Civ. App. 1902, err. ref.) Lands reacquiredby the State after 1876 did not automaticallypass to ,the school fund. State v. Powell, 132 S.W, 746 (Civ. App., 1,911). At this point our two lines of in uiry merge. The SettlementAct of 1900 (Acts 1900, 1st 2 *S., p. 29) set apart and granted to the school fund: " all of the unappropriatedpublic domain'rimiiningin the State of Texas of whatever character and wheresoeverlocated. 0 e 0" Hon. Bascom Giles, Page 9 (V-782 I "Unappropriatedpublic domain" within the meaning of this Act has been defined as ". . . land which in fact is not included within the bounds of any Weatherly v. Jackson, 123 Tex. 213, ;E?: id.23; at 265 (1934) The Act also applied to certain surveyed lands which'had lapsed into an un- appropriated status for failure of an individualto perfect his claim, Barber v. Giles, 208 S. W. 2d 553 at 554 (Tex. Sup., 1948). Areas reserved for the use of the govern- ment or the people, however, were "aocropriated"and therefore did not pass to the school fund. State v. Bradford, 121 Tex. 515 50 S.d. 2d 1065 (1932); Ander- son v. Polk, 117 Tex. 213 297 S.W. 219 (1927); see Taylor v. Hoya, 29 S.W. 340 (Civ. App., 1895). This is the necessary result of the rule stated in Roberts v. Terrell, 101 Tex. 577, 110 S.X~. 733 at 735 (1908) that: "Having once specificallyreserved or set apart or withdrawn certain lands . . . it is not to be supposed that by subsequent legislationthe Legislature intendedto au- thorize the aporopriationof them unless such intentionwas clearly expressed and it has therefore been held ina great number of cases that general laws authorizing locations or entries upon and surveys of public lands, or public domain, or vacant lands, do not apply to lands that have previously been so appro- priated, reserved, set aside, or withdrawn." See State v. Delesdenier,7 Tex. 76 at 107 (1851);.Kue- chler v. Wright, 40 Tex. 600 at 646 (1874); Gammage v, Powell, 61 Tex. 629 (1884); Day Land and Cattle Co. v. State, 68 Tex. 526 at 547 4 S.uJ.865 (1887); Landry v. Robieon, 110 Tex. 295 214 S.W. 819 at 820 (1920). Do- lan v. Walker 121 Tel;.361 49 S.uJ.2d 695 at 698, -State v. Bradhord supra, ai 1069; Lorino v. Crawf&d Packing Co., 142 '!ex.51, 175 S.W. 2d 410 at 413 (1943);". Wilcox v. Jackson 13 Peters 498 (U. S. 1839); Newhall V. Sanger 92 U. 6. 761 23 L. Ed, 769 [1875)*Opinion of 0. W. terrell AttorAey General of Republii to Pres- ident, January 25, 1842 (Land Office files); Opinion of Attorney General to Land Commissioner,dated May 19, 1874 (Land Office files); Opinions of Attorney General, Hon. Bascom Giles, Page 10 (V-782) Vol, 11 p. 667 (1886); Vol. 12 p. 342 (1888);Vol. g. LO (1891)* Vol. 14, p, 359 (1892); Vol. 24, it'8 (1911). Voi 39 p 63 (1914).Opinion No 2783 dated Augu& 21: 1429 to Hon.'J. H. Walked; Opinion No. V-741, dated Dec. 16, 1948, to Hon. Bascom Giles. The "ar~propriation~of land is not depen- dent on possession and use. Weatherly v. Jackson, supra. Non-user of the Solomon Smith 110 acre tract would therefore not render it subject to sale as uni appropriatedpublic domain. In the Ray case, supra, the appellants argued that an unused, filled-in por- tion of the Trinity River bed was unappropriated public domain and subject to sale under Article 5421c, saying that: n regardless of whether the land is par; if'the public school,fund still the sale was valid under the Act of 1431, Chap, 271, p. 452, and that statute provides for the sale of all unappropriatedand~unsold ublic d~omainremaining in the State. . . .* PAppellants'brief, p. 10, Ray v. State, 153' S.W. 2d 660). The Court held invalid the Land Commissioners' award of the area, saying: *We are of the view that no part of the land involved is unappropriatedpublic domain belonging to the permanent school fund or un- surveyed school land and subject as such to sale because all of the land is a part of the Trinity river bed, a navigable stream, the ti- tle to which is in the State for the benefit of the public at large. . . .* "If, however, we are mistaken in the view that the State has not abandoned the 32 acre tract as a part of the Trinitfr River bed and ,itis abandoned river bed, still it is not sub- ject to sale either aa unappropriatedpublic domain .oras unsurveyed school land in the ab- s.a~s~e~08 legislationauthorising such sale. . . .n (153 S.W. 26 at 662). . Hon. Bascom Giles, Page 11 (V-782) Our conclusion has other support. The phrase Vacant" or "unappropriateddomainI1has an ancient mean- ing in this jurisdiction. Under Spanish law, vacant lands meant the unappropriatedroyal domain. The %at- Ural" or Vacant" lands were the King's special prerog- ative, to be sold or granted as a reward of merit or as a matter of pure favor. Lands held by the government or its subdivisionsfor public purposes were, on the other hand, reserved from sale. Sheldon v. Milmo, PO Tex. 1, 36 S. W. 413, 415 (1886). The phrase "vacant domain" was used in the first general colonizationlaw that of March 24, 1825. Saylest Early Laws, Art. 40. Qubsequent laws relating to the dispositionof the.public domain spoke of vacant unappropriatedlands. See Act of Dec. 2, 1850, Sayles' Early Laws, Arts. 2164, 2374; Act. of Dec. 21 1853, Say- lest Early Laws, Art. 2577; Act of Feb. 4, 1844, Sayles' Early Laws, Art. 2381; Act of Feb. 13; 1854, Sayles' Early Laws, Art. 2427; Act of Feb. 11 1858 Sayles' Early Laws, Art. 2757. Acts of Feb. lb 1858 Jan. 1 1862, and March 4, 1863, Saylesl Early'Laws,'Arts.2'?57, 2977, 3055; Acts of Dec. 15, 1863 and Nov. 7, 1864 Sayles' Early Laws, Arts. 3122, 3182; Act of March io; 1875, Sp. Laws 14th Leg. p* 69; Act of Aug. 16, 1876, Saylest early hws Art. 4242; Act. of Feb. 20, 1879; and Act of July 14' 1879 amended by Act of March 11 1881, R. S. 1879, Art. 3b76a. The Articles of Annex:- tion spoke of ". . . all the vacant and unappropriated lands. . ." See Art. 5415, R. C. S., 1925. The Act of January 22, 1845, describes vacant public domain as land n* . . which has been neither filed upon, entered, lo- cated nor surveyed by virtue of some genuine, legal and valid certificate,or other evidence of title to land 0 . ." 2 Gam. bWS 1072. The tabulations prepared for the Settlement Act show that previouslytitled:Zandwas not included in the wunappropriatedpublic domain." See Report of Charles Rogan, Land Commissioner,dated.November1, 1899; Message of the Governor S. J. 1st C.S. 26th Leg., 1900, p. 14. .Whilesuch tabulations are not determinativeas'to a par- ticular tract (Eyl. v. Stat,e,84 S.ti.607 (Civ. App., 1904)), they indicate in general the lands intended,to pass to the school fund. State v. Bryan, 210 S.W. 2d 455 at 457 (Civ. App., 1948, error ref.,wEG;h;A); &is the legislative intent which controls. ker, 133 Tex. 255, 128 S.W. 2d 1138 (1939). l -, . Hon. Bascom Giles - Page 12 (V-782) You are, therefore, respectfullyadvised that the 110 acre tract of land out of the Solomon Smith sur- w in Wailer County, acquired by the State in 1877 as Dart of the site of Prairie Vie.w,does not now belong to the Public Free School Fund; and that, under present laws, the School Land Board does not have,authorityto.sell or lease said land. SUMMARY A tract of patented land acquired by the State in 1877 in the purchase of a college site is not subject to sale or lease by the School Land Board und;zr&",i- cle 5421~ or other present laws. tract, though not now used by the State, remains appropriatedto the purpose for which it was acquired pursuant to legis- lative authority and therefore is not un- appropriatedpublic domain and has never ps;edSto the school fund. Article 5421c, * Article 5416, R. C. S.; State v. Biadhori' 121 Tex. 515 50 S.W. 2d 1065. Roberts :. Terre11 1Oi Tex. 577 110 S:W. 733; Ray v. State,'153 S. W. 2d 660; At- torney General's Opinion V-741. Yours very truly, ATTORNEY GENERAL OF TJ&AS Assistant BHR:bt/g