This is a suit by mandamus to compel the Commissioner of the General Land Office to issue-patents to the appellee, George W. Wright, to fractional sections Nos. 32, 36 and 46, in what is known as the Memphis, El Paso and Pacific Reservation.
The act to incorporate the Memphis, El Paso and Pacific Railroad, passed February 4, 1856, provides, in Section 15, that all the vacant public land within eight miles: on each side of the extension line of said road shall be exempt from location or entry, from and after the time when such line shall be designated by survey, recognition, or otherwise; the lands hereby reserved “ shall be surveyed by said company at their expense, and the alternate or even sections reserved for the use of the State; and it shall be the duty of said company to furnish the district surveyor of said district through which said road may run with a map of the track of said road, together with such field notes as may be necessary to the proper understanding and designation of the same.”
Sections 16 and 18 provide “for the issuance of certificates to be located upon the odd sections within the reservation; provided, sufficient quantity of land of said odd sections is to be found therein, otherwise upon any vacant and unappropriated lands of the State; and provided always, that the even sections shall be reserved exclusively for the State.”
It is admitted by the pleadings that said company, in compliance with Section 4 of supplemental act, surveyed, sectionized and numbered all the sections and fractional sections of vacant land within their reservation, from the eastern boundary of the State westward to the Brazos river, within four- years from and after the first of *606'March, 1856, and also in said time deposited a correct map of the said work in the General Land Office; and that fractional sections Nos. 32, 36 and 46, which are the subject of this litigation, were included in the said reservation, and were returned upon the maps as part of the said surveys.
The alternate or even sections when surveyed and delienated by the map lose the character of public land, and cannot regain that character “except by direct and express terms.” (State v. Delesdenier, 7 Texas, 108.)
,In the case of Wilcox v. Jackson, 13 Peters B., 498, it is said that an appropriation of land by the government is nothing more nor less than setting it apart for some particular use, and whenever a tract of land shall have once been legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of public- domain, and no subsequent law, proclamation, or sale would be construed to embrace it or to operate upon it, although no other reservation were made r.of it.
Were there, any doubt as to the effect of the language of the act appropriating the alternate sections to the use of the State, that doubt would be removed by Article 10 of the Constitution of 1866, which provides, in Section 3, “ that all the alternate sections of land reserved by the State out of grant heretofore made or that may hereafter be made to railroad companies or other corporations of any nature whatever, for internal improvements, or for the development of the wealth or resources of the State, shall be set apart as a part of the perpetual school fund of the State.”
This language is broad and comprehensive. The alternate sections of land reserved, by the State out of grants heretofore made or that may hereafter be made to railroad companies..are ..dedicated to. school purposes and *607placed beyond the power of the Legislature to divert them for any other purpose.
We do not stop to inquire the precise place the Constitution of 1866 occupies in .our political history; suffice it to say that it is recognized for many purposes as the Constitution-of the State until superseded by the Constitution of 1869.
Section 6 of Article 9 of our present Constitution provides that “all the funds, lands and other property heretofore set apart and appropriated, or that may hereafter be set apart and appropriated, for the support and maintenance" of public schools, shall constitute the public school fund, - * * and no law shall ever be made appropriating such funds for any other use or purpose whatever.” The act, therefore, of August 12, 1870, to regulate the disposal of the public lands of the State of Texas, does not authorize a homestead settlement or the location of a land certificate on the alternate or,even sections when once designated and surveyed under the railroad laws of the State.
Section 5, Article 10, of the Constitution does not either in terms subject the reserved sections to location and survey by any genuine land certificate; the plain import and meaning of this section was intended to open the odd sections within the reserve of such railroads as have not complied with the terms of their charters.
To construe this section so as to open the State sections-to location would not only do violence to the language, but to the spirit and policy of the Constitution itself. Therefore the judgment of the court below is reversed and the case dismissed.
Be VERSED AST) DISMISSED.
Opinion delivered August 29, 1872.