Hot being able to agree with the majority of the court in the decision of this case, I feel it due, not onlv to this *437court but to myself, to state briefly the grounds of my dissent. The magnitude of the case, involving, in its determination, vast interests for the distant future of the State, demands a careful consideration of every question legitimately presented by the record, and is a sufficient apology for the expression of an individual opinion in regard to the legal principles which determine the rights of the parties.
As the question of jurisdiction presented by defendant’s demurrer in the court below, was undecided in terms by that court, and as the appeal from the judgment of the lower court, and the assignment o.f errors, raise no question of jurisdiction, it is deemed unnecessary to notice that question for a proper determination of the cause, as presented by the record. Again, there is no attempt by these proceedings to question the corporate capacity of appellant, or to take away or abrogate any authority it may have had by reason of its charter. It is therefore deemed unnecessary, in order to a legal disposition of the case, to decide the question of the legal existence of appellant as a corporation. For the purpose of deciding this case it may be conceded that appellant is to all intents and purposes a corporation possessing a good and valid charter, granting and securing to it important rights and franchises, which are irrepealable and absolute so long as they comply with the terms of the charter. The question for decision in this case is not as to the validity of the charter creating the company, but as to the validity of a grant of land claimed to have been made by the State of Texas for the encouragement of the construction of railroads in Texas, and under which grant appellant claims a large quantity of land.
In January, 1854, the Legislature of the State of Texas passed an act granting to any railroad company constructing a section of twenty-five miles of road, sixteen sections of land for every mile of road so constructed; and by a supplemental act of the same date it is provided that “ no road benefited by this “ act, or the act to which this is a supplement, shall receive any “ donation of land under its charter, or under the act to which *438“ this is a supplement, for any work not completed within ten “ years after the passage of this act.”
This latter or supplemental act clearly demonstrates the intent and wisdom of the Legislature in encouraging railroad companies to push forward the construction of their roads with all possible dispatch, that the State might have the benefit of the constructed roads which had received land donations, in peopling the State and developing the resources of the country; and the grant might then have been considered as a compensation for the additional expense which would attend a rapid construction and completion of railroads.
In January, 1862, during the existence of the rebellion, the Legislature, assembled under the authority of the so-called Confederate States, passed an act extending the provisions of the act of 1854 until two years after the close of the war between the Confederate States and the United States of America. The chief and almost only object of this latter act, was to withdraw all the resources and energy of the country from the construction of roads and other improvements, and to apply the same to the prosecution of the war of rebellion. It is true that it was then difficult to procure the materials for constructing roads, and contractors might have suffered, but it is a notorious fact that at that time there was but little legislation for the benefit of corporations or persons, and if -the object of the act had been to benefit railroad companies, it would have been of equal force and benefit if passed after the close of the war.
The act of 1854 expired by its own express terms in 1864, unless the act of 1862 extended the same until two years after the close of the war. And it is believed that here is presented an important inquiry, in order to the proper determination of this cause, since, if the statute .of 1854 had expired by its own limitation, it then becomes a dead letter in the statute book, and could be revived only by a re-enactment of all its terms, conditions, and restrictions..
It is believed to be one of the fundamental principles of law, recognized by the highest authority, that an insurrectionary or *439rebellious province, or State, can make no laws which projprio vigore can have any binding force or authority, any longer than the physical force of the rebellion or insurrection exists; and especially can it not make any law, or enter into any contract, which shall be binding upon the legitimate sovereignty so soon as the rebellion is put down. (Halleck’s International Law, 825 et seq.) This is peculiarly the case where an attempt has been made to encumber or dispose of the public domain, or any portion thereof. A rebel or insurrectionary government has no title to the public domain. It may possess and use during the continuance of its belligerent power any portion of public lands, but has no right to alienate until the rebellion has proved successful. (Halleck’s International Law, 77, 122, 447.) Again, on page 448, Mr. Halleck says that “ the purchaser of any por- “ tion of the national domain of a conquered country, takes “ the risk of being evicted by the original sovereign owner, if “ he should be restored to "the possession of his domains.” If these are correct principles of international law, then the Confederate State of Texas had no power or authority during the rebellion to alienate, by grant or otherwise, any portion of the public domain, nor to pass any law in regard to the same, that could have any binding force or validity after the rebellion had been put down by the legitimate government. Indeed, it is claimed with much force by counsel in the case of The State v. White & Chiles, 25 Texas Supplement, 465, in regard to all laws passed by a rebel Legislature, that “ the only rule upon “ which the courts of a restored power can act with safety, is to “ limit the validity of the acts of the usurping government to “ the absolute necessities of society; and even in regard to such “ acts, and certainly as to all others, to exercise a sound judicial “ discretion.” And Chief Justice Chase, in delivering the opinion in that case, announced a similar rule by saying “ that “ acts necessary to the peace and good order among citizens “ must be regarded in general as valid, when proceeding from “ an actual, though unlawful government, and acts in further- “ anee or support of the rebellion, or intended to defeat the *440“ just rights of citizens, and others of a like nature, must in “ general be regarded as invalid and void.”
The act of 1862 most certainly was not passed for the preservation of peace and good order of society, but for the purpose of guaranteeing to private corporations—which had in many instances forfeited their charters in attempting to speculate off from-the necessities of the people—a very large proportion of the public domain ; and it is believed that there is no responsible published authority to be found, supporting the validity of that or any other similar law passed under like circumstances. Again, the act of 1862 was passed in recognition and in aid of the rebellion, and therefore “ must be regarded without validity and “ void ” (The State v. White & Childs, 25 Texas Supplement, 608); and like the stay laws of 1861, 1862, and 1863 (which suspends the collection of debts until two years after the close of the war), with which it bears a strong analogy in spirit and many of its provisions, it is “ in spirit and purpose contrary to “ public policy, in aid of the rebellion, and was and is there- “ fore void.” (Sequestration cases, 30 Texas, 707.) If, therefore, the act of 1862, extending the time for railroads to complete their work in order to be entitled to grants from the public domain, was void for the want of legitimate authority to pass such an act, and also because the same was a recognition of, and in support of the rebellion, then the act of 1854, granting land to railroads, expired by its terms in 1864, and on the 22d of October,. 1866, when appellant’s charter was passed, there was no general or special law of the State in force, granting lands -to railroads, and a simple charter, creating a corporation with certain rights, franchises, and privileges, was the only grant they received.
But it is contended that the act of the 13th of ¡November, 1866, extended the grants made by the act of 1854, for ten years from the passage of the latter act. This it is believed could not be done as attempted; for, if the law of 1854 had expired, then it could not become a law, or be extended as such, without going through all the formula of a re-enactment. And *441if the law of 1854 were in full force, then the act of 1866 would be plainly obnoxious to the constitutional requirement that no law should be revised or amended by reference to its title, but that in such a case, the act revised, or the section amended, should be re-enacted and published at length. And again, the act of ¡November 13th, 1866, is so uncertain and indefinite in its terms that it is believed no judicial construction or interpretation can properly be given it, and that therefore the same should be declared void for uncertainty, if for no other reason. But should this act be held valid at the time of its passage, it was simply an act making a naked donation, and no part of the contract embraced in the charter, if such a contract ever existed. This act was subsequent to, and independent of the charter, and if appellant by that latter act received a grant of land at all, it was as a simple gift without consideration. But this act was passed by a provisional Legislature called into being by the authority of the ¡National Executive alone, by virtue of his power as commander-in-chief of the army. That Legislature, without any constitutional recognition or legitimate authority, was emphatically what Congress styled it, “provisional only,” and its authority was limited to providing for the immediate necessities of the people, and also to prepare for the formation of a permanent, loyal, and constitutional government.
The act of Congress of -March 2d, 1867, but a few months after the passage of the act under which appellant claims, declared that there was no legal State government in Texas, and therefore provided for the enforcement of peace and good order in the State, until a loyal and republican government could be legally established. And in July of the same year Congress, for fear that the act of March might not be fully understood, passed a supplemental act, declaring that the governments then existing in the ten named rebel States, including Texas, were not legal State governments, and that if they were continued at all, they must be subject in all respects to the military commanders. And yet it is from this rebel government, and un*442constitutional and illegal Legislature, that appellant claims an exclusive franchise from the people of Texas, to continue for fifty yeai's, and a donation of hundreds of thousands of acres of the public domain.
It is said that the governments of Texas existing in 1866 and 1867 have been recognized by every department of national and State governments since that time, and therefore the courts now should sustain this princely grant, as binding upon the State and people. It is true that the existence of a government, or rather a provisional government, may have been recognized as a fact, the same as the war of 1861, 1862, and 1863 was recognized. But it may be most emphatically denied that any department of either State or National government has ever recognized the State government of 1866, or the Legislature which created the appellant a corporation, as a legitimate government, or Legislature, or as having any other than a provisional authority for a temporary purpose, and no power whatever to "bind the State or people against their will, one hour longer than that provisional government existed. The Legislature of 1866 being therefore an illegal body, it was clearly without authority to make any legal or binding contract with appellant, or other persons, which the people would be bound to respect or the courts to execute, and especially if that contract was made to be executed in the future, when their temporary authority shall have ceased.
Again, appellant claims the performance of a contract for the grant of land. Halleck’s International Law, 447, 781, says that a de facto government may make or change any law at pleasure, but that such changes end with the power which made them, and that any defacto government may use, but have no power of alienation over the public domain. The government and Legislature of 1866 was provisional only; its authority was limited to the present necessities of the people ; and that authority, as well as - the binding effect of the same, must of necessity cease with that limited and temporary government. There was, then, no power in that Legislature to alien or grant *443land, or to make any binding contract in regard to the same. It is therefore contended that appellant has no binding contract with the State, for the reason that the parties had no legal authority to make such a contract, and that they had no right to contract for the grant of land belonging to the State, to be binding in the future.
Again, the State government of 1866 was organized under the Constitution of that year, and the Legislature which attempted to make a donation to appellant acted under and by virtue of the authority of that Constitution alone; yet that Constitution was wholly rejected by Congress, and its authority as a Constitution denied to the State.
The State government was finally displaced on account of its disloyal and illegal character, and the people again authorized to form another Constitution, for the better protection of all the people and the greater security of republican institutions. The Constitution of 1869 was formed by a Convention of the people, was accepted by Congress, and finally adopted by a vote of the people, and became the fundamental law of the State. That the Convention which formed the present Constitution had full power and authority to declare every legislative act since the passage of the ordinance of secession, null and void, there can now be no doubt. The right of secession may at one time have been considered an open and debatable question, but that question with all its attendant sequences has been snbmitted to the arbitrament of war, and so far as this country is concerned has been definitely settled, and it is now believed to be blit folly to contend for the right of secession, or the right of seceding States to make laws, or even contracts, which shall be binding upon the State and people in the future.
It is true that there may be acts relating exclusively to the preservation of society, and the regulation of the municipal affairs of the State, which should be respected, not because of the right of a rebellious body to pass such acts, nor because of any intrinsic force in the acts when once passed, to become binding upon the State, but simply because their observance would *444be more beneficial to the people than their abrogation; and the power of the Constitution to declare all laws made by an illegal government null and void, may and must remain unquestioned.
We have, then, only to inquire whether the present Constitution has in any manner, either directly or indirectly, repealed or annulled the act of 1866 under which appellant claims, in order to a final and legitimate settlement of the rights of the parties. Article 12, Section 33, of the present Constitution, declares the ordinance of secession, and all laws and parts of laws founded upon said ordinance, null and void from their passage, and that the Legislature which sat in the State from 1861 to 1866 had no constitutional authority to make laws binding upon the people. This clause declares directly that the statute of 1862, extending the time for railroads to complete their work until two years after the close of the war, is null and void, as that was clearly a recognition and in aid of the rebellion.
The latter clause of the same section of the Constitution declares “ that the Legislature of August 6th, 1866, was provis- “ ional only, and its acts are to be respected only so far as they “ were not in violation of the Constitution and laws of the “ United States, or were not intended to reward those who par- “ ticipated in the late rebellion, or to discriminate between citi- “ zens on account of race or color, or to operate prejudicially to “ any class of citizens.” It is claimed for appellant that this clause validates all the laws of 1866, excepting those specially excepted. This certainly cannot be a fair philological construction of the language used; on the contrary, it intends to declare certain laws null absolutely, and to leave the remainder to be respected or not as the Convention or Legislature might think proper, but it does not declare that any one law shall remain in force or be respected. But it may be admitted that this clause of the Constitution would leave the act of 1866, under which appellant claims, in full force, if indeed it was ever in force, but this certainly could not prohibit the Convention, in another clause of the Constitution, from directly or by *445implication declaring that act void. Sections 2, 3, and 4, of Article 10, were incorporated in the Constitution, evidently as preliminary provisions to a special dedication of all the undisposed of public domain, and to make a definite ascertainment of the same, on or before the 1st day of January, 1875. But if appellant’s claim be sustained, it will certainly defeat the object of the three sections referred to, as it would then be impossible to ascertain the quantity of the public land remaining undisposed of until 1877 ; as their claim, if valid, may run until that time. It is therefore believed that these sections of the Constitution show a clear intent to hereafter disregard all claims for grants of land to railroads.
Section 5 of the same article declares that all lands heretofore reserved for the benefit of railroads, shall hereafter be subject to location by any genuine certificate; clearly indicating a determined purpose to withdraw the many lavish grants and privileges which had been given to corporations, with the expectation that they would be used in the development of the resources of the State, but which had in most instances failed in accomplishing the object intended. Section 6, Article 10, prohibits the Legislature from hereafter granting lands to any person or persons. There can be no mistaking the language here used, and no doubt that all legislative grants of every character are prohibited. It maybe claimed that “person or per- “ sons ” does not include corporations. This doubt, or rather quibble, may be answered by the inquiry of what a corporation is composed if not of “ person or persons ? ” And further, who are to be beneficiaries of the grant to a corporation, if not a “person or persons?” But the authorities are abundant and clear on that question. Angel & Ames, on Corporations, page 3, says, “ A corporation is said to be a person for certain pur- “ poses, and the construction is that when persons are mentioned “in the statute, corporations are included.” (2 Kent, 215; 2 Black. Com., 37.) It may be contended that the Convention only intended to place this prohibition upon future legislation, but it would be a little surprising that a loyal Convention would *446prohibit future loyal Legislatures from granting lands, and, by its silence, in the same article sanction and revive grants not binding on the people or State, and made by rebel and illegal Legislatures.
But it is believed that Section 7 of the same article was intended to settle, and does settle all question, and all possible doubt in the matter. It provides that, “ All lands granted to “ railway companies, which have not been alienated by said “ companies in conformity with the terms of their charters re- “ spectively, and the laws of the State under which the grants “ were made, are hereby declared forfeited to the State for the “ benefit of the school fund.” If there could be any doubt as to the proper construction of this section, the history of the Convention, and its purposes and intents in that particular, are too well known to leave any doubt in regard to the matter. But it is believed that a proper construction of this section is not difficult, and that it has but one meaning, which is simply that all grants and donations, whether in certificates or legislative grants, .and which have not been alienated, are declared forfeited. Here is believed to be a most emphatic declaration.. that all legislation since the commencement of the war, in relation to the grants of land, are null and void ; and this of course would include the acts of 1862 and 1866, under which the appellant claims.
Section 6, Article 9, of the Constitution would seem to be a treble confirmation of the view of the Constitution here taken, since that is a solemn dedication of all the public domain to the support of the public schools of the State. This clause would become á farce, and the act of dedication worse than folly, if the statute of 1866 is declared binding upon the State; since the decision in this case will open the door for-the claims of almost numberless dead and dormant companies, whose voracious maws are now gaping to swallow up the last acre of all that is valuable of our undisposed-of public lands. It is, however, claimed that appellant is not a dormant corporation, .but that it has been very active and energetic in pushing *447forward its work to a final completion, and in extending to the people great facilities, which must result in the pecuniary and physical advancement of the best interests of the State ; and while this and even more maybe admitted, to the lasting credit of the company, yet it is believed that the courts are not warranted in making exceptions on account of merit, against the law.
Again, the statute of 1854, which appellant claims to have been extended in 1862 and 1866, restricts the donation of land to such companies as shall have completed twenty-five miles of road within two years from the passage of that act, and expressly provides that, “ Such donations shall be discontinued “ in every case where the company or companies shall not con- “ struct and complete at least twenty-five miles of road contem- “ plated by their charter, each and every year.” The charter in this case was passed in 1866, but it is admitted that up to 1870 (nearly four years), and a year after the adoption of the present Constitution, no part of the road had been completed. Of course, then, if appellant ever had any just claim to any portion of the public domain, that claim had wholly ceased, and the constitutional prohibition clearly attached to it, as well as all other companies; and should it be claimed for appellant that the disturbed condition of the country between 1866 and 1870 was such that capitalists would not risk an investment in this State, and that therefore that time should not be counted against it, it may be answered that Constitutions and laws were never intended to yield to the caprice or interest of capitalists. And besides, when appellant sought and obtained a charter, the condition of the country was as much disturbed, and as well known to be so, as at any subsequent period; and therefore appellant, in asking a charter at that time, with all the limitations and restrictions, tacitly agreed to abide by the terms, and take the risk, and therefore is not now entitled to any consideration in law or equity because of its failure to perform its contract ; and the constitutional Convention was fully authorized on this account in declaring the donation, if one ever existed, null and void.
(Reporter's Note.—In conformity to the opinions of the maj ority of the court, judgment was entered remanding this cause to the District Court. But, at a subsequent day of the term, the Commissioner, in view of the fact that the merits of the case had been fully presented and adjudicated, and in order that the State might not be subjected to further and unnecessary costs, submitted to such final judgment as this court might render ; and thereupon final judgment was rendered in favor of the appellant, awarding a peremptory mandamus according to the prayer of the petition.)For the reasons herein contained, I am of the opinion that there was no error in the judgment of the District Court in sustaining the demurrer of appellee, on the ground that there was no binding contract between the parties which should be enforced by the courts, and that the judgment should be affirmed.
Reversed and rendered.