MOTION FOR REHEARING.
J. S. Hogg, Attorney-General, for motion.—The State now moves this court for a rehearing of the above entitled cause, and hereby assigns the following reasons therefor:
1. Contrary to the court's opinion, the Constitution expressly dedicated one-half of the public domain belonging to the State at the date of its adoption to the public free school fund, in addition to the alternate sections that the Legislature should, in the exercise of its discretion, reserve out of grants that might thereafter be made to railway or other corporations.
2. That the court erred in holding that said “one-half clause” was not self-executing, and that there was no provision requiring the Legislature to put it in force, for the reasons: *
(1) That all unqualified provisions of the Constitution are mandatory and require legislative and judicial obedience.
(2) That section 42 of article 3 thereof expressly provides that “ the Legislature shall pass such laws as may be necessary to carry into effect the provisions of the Constitution.”
' (3) That in pursuance of and in obedience to said constitutional provision the Legislature, as shown by Revised Statutes, articles 3703 and 4031, expressly appropriated “one-half of the public domain” of the State, and in addition thereto each alternate section reserved out of railway grants, to the use of the public free schools.
3. The court erred in holding “that the object of the clause granting one-half of the public domain to the school fund was to reach and hold beyond legislative control whatever portion of the public domain remained after the execution of the enumerated purposes,” for the reasons:
(1) This conclusion is based on the false premise that the Constitution required grants to be made to railways, or that they were made by that instrument itself.
(2) That, followed to the logical and practical result, it rendered the “one-half” clause inoperative, useless, and nugatory.
(3) That by it the said “one-half” clause, in itself an express grant without qualification, is made subordinate to and dependent on the contingent and qualified “alternate” clause.
*3904. The court erred in holding that the Governors, Land Commissioners, and the Legislatures of Texas had ever construed or acted on the Constitution agreeably to its opinion, for the reasons:
(1) That no other Governor except Hon. O. M. Roberts ever had an opportunity to construe said provision, as the law of 1876, granting lands to railways, was repealed by Act of April 22, 1882, on the ground that the public domain was exhausted; and he, on two occasions, in his in-, augural address and message to the Legislature, expressly declared that one-half the public domain of the State belonged, and should be set apart, to the school fund in addition to the alternate grants received from railway surveys.
(2) That in obedience to the said Governor’s recommendations, the Legislature in 1879 did appropriate one-half the said public domain for the public schools, in addition to the alternates theretofore reserved to the State by Act of 1876 out of railway grants.
(3) That the report of the engineer on which the certificates to railways were issued, the act of the Land Commissioner in issuing and signing them, the act of the county and district surveyor in locating them on public domain, their subsequent file in the Land Office and the issuance of patents (if any) thereon, were all ministerial, clerical, and not discretionary or judicial acts requiring serious consideration of constitutional provisions.
(4) That the court’s opinion is in conflict with its previous opinions on the same question, for that, in the case of Fannin County v. Riddle, 51 Texas, 368, rendered in 1879, it held that the Constitution “ unreservedly dedicated one-half of the public domain to the public free schools.” And in Day Land and Cattle Company v. The State, 68 Texas, 547, this court, in passing on the very question under consideration that arose under Act of 1879, held: “In so far as the act in question appropriated one-half of the unappropriated land in Greer County to this (school) purpose, it only carries into effect in the particular territory the mandate of the Constitution.”
Wherefore, in view of the premises, the State prays this court to have notice hereof duly served on E. P. Hill, Esq., counsel for appellant, who resides in Harris County, Texas, and that a rehearing of this said cause be granted, and the errors in the opinion heretofore rendered corrected.
ARGUMENT SUPPORTING MOTION.
In view of the fact that if the court’s opinion remains unchanged the State of Texas will lose 15,000,000 acres of land which it claims for the public free schools under the Constitution and laws, this case ought to receive more careful consideration than possibly could have ever been given it by overburdened judges at the last term. An overworked court *391is cause of public distress, which must be regretted, though it can be relieved; but an act, especially from a high judicial source, that besets a constitutional provision is a public calamity over which generations yet to come may mourn. Is the opinion in question correct? If it is, then it ought to stand, though by it the State should be pauperized. If it is not, then the steady nerves of a righteous court ought to pen a correction, though the consequences should bring grief even to the millions.
To the point: The contention of appellee is that by the Constitution of 1876 there was unconditionally appropriated to the public free schools an undivided one-half of- all the unappropriated public domain within the State at the time said Constitution was adopted, in addition to such alternate sections as should thereafter be reserved from grants to corporations. Lying within the following section of that instrument rests the issue:
“All funds, lands, and other property heretofore set apart and appropriated for the support of public schools; all the alternate sections of land reserved by the State out of the grants heretofore made or that may hereafter be made to railroads or other corporations of any nature whatsoever; one-half of the public domain of the State; and all sums of money that may come to the State from the sale of any portion of the same, shall constitute a perpetual public school fund.” Art. 7, sec. 2.
A majority of this court in its opinion here complained of denies the correctness of the State’s proposition, overrules the decision of the court below, reverses and renders the case in favor of appellant company, upon substantially the following grounds:
1. That said “one-half” clause is not self-executing, and there is no provision of the Constitution requiring the Legislature to put it in force.
2. “That the object of the clause granting one-half of the public domain to the school fund was to reach and hold beyond legislative control whatever portion of the public domain remained after the execution of the enumerated purposes.”
3. That the Legislatures, the Governors, and Land Commissioners had for a period of thirteen years uniformly concurred in a different construction from that contended for by the State.
Boiled down, the foregoing three points are about what may be culled from the court’s very lengthy opinion giving a meaning to the troublesome hyphenated two words “one-half” found in the article on “Education” in the Constitution. True the court quotes other provisions of that instrument, but in all candor it is submitted that neither of them is connected or in conflict with or have any interdependent relation to the one on which the question at issue pends. It also alludes to legislative and executive construction, but fails to cite the law, the acts, or the messages.
The court’s argument that the “one-half” clause is not self-executing fails, because the principle is well settled in Texas that “ any provis*392ion of a Constitution is self-executing to the extent that anything done in violation of it is void.” See Watson v. Aiken, 55 Texas, 536; Hemphill v. Watson, 60 Texas, 679.
Besides this, the Constitution expressly provides that “the Legislature shall pass such laws as may be necessary to carry into effect the provisions of the Constitution.” Art. 3, sec. 42. If, therefore, the Legislature failed to pass a law putting the “one-half” clause in force, or if it passed a law contravening it, or if the railway company located on land appropriated by it, the act, in whole or in part, according to the facts, was necessarily void. By positive legislation, however, it has been put in force. Rev. Stats, arts. 3703, 4031.
In explaining the object of the “one-half ” clause the court contends that it was intended “to reach and hold beyond legislative control whatever portion of the public domain remained after the execution of the enumerated purposes.” What “enumerated purposes?” Where were they enumerated? What was the part of the public domain that this “one-half” clause proposed to “reach and hold beyond legislative control?” If any of it was to be held beyond legislative control, what was to become of it?
If this rule fixed by the court to give effect to the “one-half” clause in question can be put into operation, then failure is impossible. Certainly in speaking of the “enumerated purposes” that shall first be “executed” before that clause can take effect, reference is made to the Constitution. The “enumerated purposes” expressed in that instrument that must first be satisfied out of the public domain, therefore, should be reviewed and the court’s rule applied to them.
■ The first provision on the subject of public domain is in article 7, on “Education,” and is as follows:
“Section 2. School Fund, what Constitutes. All funds, lands, and other property heretofore set apart and appropriated for the support of public schools; all the alternate sections of land reserved by the State out of grants heretofore made or that may hereafter be made to railroads or other corporations of any nature whatsoever; one-half of the public domain of the State; and all sums of money that may come to the State from the sale of any portion of the same, shall constitute the perpetual school fund.”
Is there any “enumerated purposes” in this section that must be “executed” before the “one-half” clause shall be given effect? If so, what purpose is it?
. Under the article on education is it possible that the Constitution expressed a purpose to build railways or to aid other corporations? The will, the purpose, expressly set forth in it was to establish and endow a system of public free schools, and to make it “the duty of the Legislature of the State to establish and make suitable provision for the support and main*393tenance” of them. For this purpose it dealt only with the public domain, and in doing so, among other things, it, perhaps unfortunately, provided that “all the alternate sections of land reserved by the State out of grants heretofore made or that may hereafter be made to railroads or other corporations of any nature whatsoever * * * shall constitute a perpetual school fund.”
To contend that this quoted part of the section under consideration required the Legislature to aid railroads by granting them lands is to assert it also meant that all “other corporations of any nature whatsoever” should have a part of the public domain. The use of the words “ or that may hereafter be made to railroads or other corporations of any nature whatsoever” can by no rule of construction or of logic be grouped into the batch of “enumerated purposes” that denied the “one-half” clause full force. They certainly did not express the purpose of the Constitution to said railways, any more than salt companies, by land grants. So far as that clause is concerned the Legislature had as much power to grant public domain to corporations to construct turnpikes, canals, macadam roads, and the like, or to clean out rivers, run boats, or to navigate the air by balloons, as to donate them in aid of railways. By it there is no limit as to amount that might be given or the purpose for which it should be used. Under it 1,000,000 as easy as 10 acres to the mile of railroad could be given.
When it appropriated “ all the alternate sections of land reserved by the State out of the grants heretofore made ” to corporations, it gave something fixed and certain and placed it beyond legislative appropriation to other purposes, for under the Act of January 30,1854, page 11, there had been saved to the State out of the alternate grants to railways at least $1,000,000 worth of land. The schools got this. But when it granted “all the alternate sections of land reserved by the State out of grants * * * that may hereafter be made to railroads or other corporations of any nature whatsoever,” it gave nothing absolutely, for there was nothing from that source then to appropriate. It depended on several contingencies:
(1) That some kind of a corporation would ask for or want lands.
(2) That the Legislature might pass a law granting them.
(3) That the grants so made were in alternates.
If the corporations did not earn or should not be granted lands, or if so they were not alternates, or if in alternates they were not reserved to the State, then from this source the school fund could get nothing.
Certainly the “ one-half” clause did not have to wait for satisfaction on account of any “enumerated purpose” in that provision.
2. The second appropriation of land is to the University, which is “ 1,000,000 acres of the unappropriated public domain of the State, to be designated and surveyed as may be provided by law.” Art. 7, sec. 11.
*394Is this one of the “enumerated purposes” that is held to be superior to and must be satisfied before the “one-half” clause can be given effect? If so, it was only one-seventieth part of the public domain then in existence, and no law was passed until the adoption of the Revised Statutes in 1879 putting it in force. Rev. Stats., art. 4023.
By what rule can a grant of one-seventieth of the whole have precedence over that which gives one-half of it? It seems the Legislature took a different view from the court, for when it made the appropriation for the University is also expressly set apart “one-half of the public domain of the State” to public free schools. Rev. Stats., arts. 3703 and 4031.
3. The third and last constitutional appropriation was “3,000,000 acres of the public domain * * * for erecting a new State Capitol.” Art. 16, sec. 57.
Although the Constitution “ set apart” this land and required the Legislature to “pass suitable laws to carry the section into effect,” no action was taken by the Legislature to do so until February 20, 1879.
Perhaps this was one of the “enumerated purposes,” after the execution of which the “ one-half” clause was to receive vitality. Admit it, subtract it and the University 1,000,000 from the whole, and there yet remained 67,000,000 acres undisposed of. But why should an appropriation of one-twenty-third of the public domain have precedence over that of “"one-half?” The Legislature evidently did not think it had, for the same year by two different provisions it appropriated to the schools “ one-half the public domain” of the State. Rev. Stats., arts. 3703, 4031.
4. Another mandatory provision that can not be called an appropriation or grant says: “To every head of a family without a homestead there Rhfl.11 be donated 160 acres of public land, * * * and to all single men of 18 years of age and upwards shall be donated 80 acres of public land,” upon certain terms. Art. 14, sec. 6.
But call this one of the “enumerated purposes” on which the court dwells with so much force, that must be complied with before the educational “one-half ” can be given life, then what is the result? Up to 1888 only 1,638,688 acres of land, as shown by the agreed statement of facts in this case, had been appropriated or claimed under that provision. Added to the 1,000,000 University and the 3,000,000 State Capitol grants it will show only 5,638,688 acres of laud included within the “enumerated purposes.” Deducted from the 71,961,277 acres of public domain unappropriated when the Constitution took effect on April 18, 1876, there yet remained 66,322,589 acres to be used for some unenumerated purposes, unless this court will concede that the “one-half” clause should rise to the importance and be classed among the “enumerated purposes ” to which it alludes. Though that provision may be considered one of the “enumerated purposes,” the Legislature did not regard it paramount to the school fund, as witness the Act of August 17, 1876, page 168, requiring the *395pre-emptor or homesteader in locating his home to survey an equal amount of land for the public free schools.
In determining, however, what the court meant by the “ enumerated purposes” that should be executed before this “one-half” clause “was to reach and hold beyond legislative control whatever portion of the public domain remained ” thereafter, the following quotation from the opinion will shed much light:
“There have always existed with the people of this State three prominent objects which through their constitutions and laws they have worked to accomplish by means of the public domain.
“Those objects were to secure immigration, promote education, and encourage the construction of railroads. It can not be disputed that the Constitution of 1876 had in view not one alone but all of these objects, and one of them no more than another can be disregarded when engaged in the task of ascertaining its true meaning.”
Without going beyond the present Constitution it is well to draw the court's attention to its mistake in the view thus taken of the “prominent objects” the people had in sight when they adopted that instrument:
1. To “secure immigration.” “The Legislature shall have no power to appropriate any of the public money for the establishment and maintenance of a bureau of immigration, or for any purpose of bringing immigrants to this State.” Const., art. 16, sec. 56. This is the only provision in the Constitution on that subject. Comment seems unnecessary.
2. To “promote education.” “A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.” Const. 1845, art. 10, sec. 1; Const. 1861, art. 10, sec. 1; Const. 1866, art. 10, sec. 1; Const. 1869, art. 9,- secs. 1-9; Const. 1876, art. 7, sec. 1.. See also Constitution 1836, General Provisions, sec. 5.
It prescribes also for the endowment and support of them, first, out of the public domain; second, by State taxes; third, local taxation; fourth, from sale of county school lands. Id., secs. 2, 3, 4, 5, 6. Certainly here is a very prominent object, and it speaks for itself.
3. To “encourage the construction of railroads.” “The Legislature shall have no power to grant any of the lands of this State to any railway company except upon the following restrictions and conditions: First, that there shall never be granted to any such corporation more than sixteen sections to the mile, and no reservation of any part of the public domain for the purpose of satisfying such grant shall ever be made. Second, that no land certificate shall be issued to. such company until they have equipped, constructed, and in running order at least ten miles of road,” etc. Art. 14, sec. 3.
*396“ The Legislature shall have no power to make any grant or authorize the making oí any grant of public money to any * * * corporation whatsoever.” Art. 3, sec. 51.
“The Legislature shall have no power to authorize any county, city, or town * * * to lend its credit or to grant public money or thing of value in aid of or to any * * * corporation whatsoever.” Art. 3, sec. 52.
“Ho county, city, or other municipal corporation shall hereafter *. * * make any appropriation or donation to any corporation.” Art. 11, sec. 3.
How this court can arrive at the conclusion that immigration, railways, and education stood side by side in importance with the people as the “ three prominent objects which through their constitutions and laws they have worked to accomplish by means of the public domain,” is difficult to comprehend in view of the foregoing quoted provisions. Aid to immigration is prohibited, encouragement of railways is permitted only, while the support of public schools is required. Howhere does that in-, strument expressly or by implication declare that immigration or railways either are “essential to the preservation of the liberties and rights of the people,” but by clear language it does so say as to “a general diffusion of knowledge.”
An investigation of the proceedings of the Constitutional Convention on this point would certainly be refreshing, if not instructive. To one who did not take part in framing that instrument the “signs” along the trackway of those honored delegates indicate that as to railways the “ oxcart” doctrine was difficult to resist; as to immigration the “ elbow-in-the-sea” sentiment held sway; and as to education the patriotic spirit of the fathers, so prominently shown since the Constitution of 1836, overwhelmed the convention, and culminated in laying the foundation for that which had repeatedly been solemnly declared was “essential to the preservation of the liberties and rights of the people.”
The “educational element” it^that body had the power, and dealt in concessions only to those who advocated “railway aid.” Ho grant was made to any kind of corporations. Hor was the Legislature required to aid them. It had the right to do so in the absence of constitutional prohibitions. So the convention placed limitations upon that power by saying that “not more than sixteen sections to the mile” should be granted, and that “no reservation of any part of the public domain for the purpose of satisfying such grant shall ever be made.” Art. 14, sec. 3.
A retrospective view of the past, an examination of the six Constitutions of Texas, without drawing on current events of the times that have ripened into history, will deny the correctness of the court’s proposition that “ there have always existed with the people of this State three prominent objects (immigration, education, and railways), which through their *397constitutions and laws they have worked to accomplish by means of the public domain.”
The Constitution of 1845 commanded the Legislature to make suitable provisions for the support and maintenance of public schools (art. 10, sec. 1) by taxation (art. 10, sec. 2) and by grant of lands to the respective counties for such purposes. Art. 10, sec. 3. Nowhere in it were railways or immigration mentioned.
The Constitution of 1861 also required the Legislature to provide for the support and maintenance of public schools in the same language and manner as that of 1845. Art. 10, secs. 1-4. Neither did it mention immigration or railways.
So did the Constitution of 1866 impose on the Legislature the same duty (art. 10, sec. 1), and endowed the schools out of the public domain (secs. 2-6), and provided for taxation in addition thereto. Sec. 7.
For the first time, however, the Legislature was required by it to aid and encourage railroads. Art. 7, sec. 36. How? By donation of public lands? No. It only conferred power on that department to “guarantee the bonds of railroad companies to any amount not exceeding $15,000 per mile,” on very restrictive conditions, among which was that “the State shall always be secured for all bonds guaranteed for any railroad company by a first lien or mortgage upon the road, rolling stock, depots, and franchises.” And it also gave the Comptroller authority “to take possession of any railroad in default of paying any bonds which may be guaranteed by the State.” It nowhere authorized or required the Legislature to aid such corporations by land grants; nor did it mention immigration at all.
This leads to a consideration of the memorable Constitution of 1869. Following up all the former ones, it spoke out on education, and also made it “ the duty of the Legislature of this State to make suitable provisions for the support and maintenance of a system of public free schools” (art. 9, sec. 1), and provided that the whole proceeds of sale of the public domain should go to that purpose, besides a large share of taxes. Secs. 6,7. But, as held by the court in this case, it “forbade the grant of land by the State to aid in the construction of railroads.”
However, it did provide for the encouragement of immigration. No doubt of this; but as a means of defraying the expense incident thereto it said: “The Legislature shall have power to appropriate part of the ordinary revenue of the State for the purpose of promoting and protecting immigration.” Art. 11, secs. 1, 2. It did not authorize the use of public domain in that way. For fear that “Castle Garden” would be turned in on Texas, or from some other cause, the people revolted at this “ immigration quickstep,” for they expressly prohibited the like by the provision of the Constitution of 1876 herein quoted.
Summarized the six Constitutions of Texas controvert the court’s as*398sertion as to the three leading objects of the people in disposing of the public domain, in the following particulars:
(1) All the Constitutions made it the duty of the Legislature to provide for the support and maintainance of public free schools, and the last three of them made appropriations of public domain therefor.
(2) Ko Constitution has ever made it tne duty of the Legislature to aid railways out of the public domain.
(3) Only two out of the six Constitutions authorized aid to railways —one by legislative guaranty of their bonds, the other by land grants— while one forbade the grant of lands to them, and three never mentioned them at all.
(4) Four out of the six Constitutions ignored the question of immigration ; one authorized legislative aid out of the general revenue to it; and the other expressly prohibited legislative efforts in that direction.
Without intending offensive repetition the question again arises, On what Constitution or law does the court base its declarations that “there have always existed with the people of this State three prominent objects (immigration, education, and railways) which through their Constitutions and laws they have worked to accomplish by means of the public domain,” and “ that the Constitution of 1876 had in view not one alone but all of these objects, and one of them no more than another can be disregarded when engaged in the task of ascertaining its true meaning?”
If in discharging the task of ascertaining the true meaning of the “one-half” clause of the Constitution of 1876 the court looks beyond the instrument itself into legislative acts to support the theory that the “three prominent objects” referred to were in view and were intended to be accomplished by means of the public domain when the people ■adopted the Constitution, it must also fail. The first general law granting lands in aid of railroads was passed January 30,1854. By its own terms it expired at the end of ten years. It was never revived, re-enacted, or ■extended according to constitutional requirement at any time. At any rate, it was by reason of conflict repealed by the Constitution of 1866, and intentionally so by the one of 1869. • The next and only other law similar to it, or in any way granting aid to railways, was that of 1876, expressly repealed in 1882. It is true an amendment to the Constitution was passed in 1873, authorizing the Legislature to grant land aid to railways, but there was no general law passed to give it force. This much for legislation on the subject.
The only law mentioning the subject of immigration that can be found was the act which established a “bureau” for that purpose, passed in pursuance of the Constitution of 1869.
On the subject of education no session of the Legislature has passed for many years in succession without it taking a prominent and sometimes the leading part in the proceedings. Laws after laws have been passed *399and amended until now they occupy more space in the statutes than those on most any other question. They have not been repealed, nor has public support of public free schools been withdrawn. Why? Because the Constitution, to say nothing about public sentiment, commands that they shall be supported and maintained, as they are essential to the rights and liberties of the people.
How about railway aid ? It has been long since withdrawn. Why? The Legislature was not commanded to aid them, and therefore, in the exercise of its discretion, with or without excuse, it repealed the law on the subject in less than six years after it was passed.
How then can the court give these “ three important objects” equal dignity and weight in construing any clause of the Constitution?
The court’s declaration that the Legislature' and Governors have for a long period of years given the “one-half” clause a different construction from the one contended for by the State is wholly unsupported by the laws and records on that subject. The opinion'in making this announcement fails to quote law to support it, or to notice several and in fact the most important laws and official utterances that contradict it. Examine them and see.
It is perhaps permissible to again draw the .court’s attention to the facts, verified by the records, that the first session of the Legislature under the present Constitution assembled on the 18th day of April, 1876, the day the Constitution took effect, and.the second convened on the 14th day of January, 1879. That on the 5 th day of May, 1876, the first Governor elected under that Constitution was promoted to the United States Senate, where he has ever since remained. Succeeding him under the law the Lieutenant-Governor became the Executive after the adjournment of the Legislature, of course under necessarily embarrassing circumstances. In the nature of things he could not do much more than “' hold the office ” and be responsible for the full execution of every constitutional provision, Avithout an opportunity to express his views in official form except as he retired from office.
On the assembling of the next Legislature the first duly elected Governor under that Constitution, who had ample notice and time for investigating all fundamental questions and maturing a line of policy, in his inaugural address on January 21, 1879, made use of the following language to the Legislature:
“ There are other obligations imposed upon the government of the State by the Constitution of equally as high a nature, Avhich are to devote one-half of all the public lands to the public school fund, and 1,000,000 of acres to the University fund, and 3,000,000 of acres to the building of a capitol of the State. Under the present policy of procrastination these obligations will not be met, and the people will have to be taxed to per*400form them.” Inaugural Address of Gov. O. M. Roberts, Jan. 21, 1879, House Journal, 1879, p. 112.
“The free-common schools have their foundation in the Constitution of the State. The mode and means of creating a permanent fund therefor, and of an available fund, with the manner of its distribution annually, are prescribed in the same instrument. It results in fixing it as a duty upon the government of the State, and not as a charity, to educate the rising generation.
“Its permanent fund consists of surveyed lands of about 21,000,000 acres, and half of all the vacant domain, making 15,000,000 acres more, set apart by the Constitution.” Message of Gov. Roberts, Feb. 10, 1879, House Journal, p. 342.
This “construction” is of no doubtful meaning, and its source will hardly be criticised as authority on such questions.
It was with prophetic ken that this faithful Governor called attention to the “policy of procrastination,” and as a result thereof predicted the necessity of taxation on the people, for in 1883 an amendment to the Constitution was submitted by the Legislature and adopted by the people requiring taxes to be levied to raise revenue to aid in supporting the public free schools.
As the preceding Legislature had only passed a law (August 17, 1876) recognizing the “one-half” clause to the extent of the territory embraced in that act, the one to whom this message was given proceeded in every conceivable way to give the Constitution full force as to that part now under consideration. The court's attention is therefore invited to several of the provisions leaning that way:
The first Legislature to give effect to this provision was in the Act of August 17, 1876, withdrawing from the mass of public domain certain lapsed railway reservations. Within said reservations no lands could be located after that act took effect, except the 3,000,000 acres for the State Capitol and such as pre-emptors should want for homesteads. As to the latter, the act expressly provided that “whenever a pre-emption survey of 160 acres or of 80 acres shall be made for any settler, a like quantity shall be made adjoining said pre-emption survey for the public free school fund of Texas. The settler having the pre-emption survey made shall pay to the surveyor the fees for both the pre-emption survey and the one for the school fund.” Acts 1876, ch. 104, p. 168.
This act was passed by the Legislature that met on the day the Constitution took effect, and is certainly a very clear recognition that the public free school fund was then entitled to “one-half” the domain, which even the pre-emptor must respect. It now appears as articles 3969 and 3970, Revised Statutes.
Hext in order is the Revised Statutes adopted at the next Legislature, in 1879:
*401“The constitutional provisions for public schools are hereby appended as a part of the school law of this State.”
Section 2, article 7: “All funds, lands, and other property heretofore set apart and appropriated for the support of public schools; all the alternate sections of land reserved by the State out of grants heretofore made or that may hereafter be made to railroads or corporations of any nature whatever; one-half of the public domain of this State; and all the sums of money that may come to the State from the sale of any portion of the same, shall constitute a perpetual school fund.” Rev. Stats., art. 3703, secs. 1, 2.
The court seems to have overlooked this law in its opinion. It will be seen that by the Act of 1876 each alternate railway grant was reserved to public free schools. The provision last quoted, adopted three years later, set apart to the schools “all the alternate sections of land reserved by the State out of grants * * * made to railroads,” and also “one-half of the public domain of this State.”
Here is legislative appropriation, constitutional construction, and execution. The Legislature did not stop here. It further provided, under the caption of “The Public School Lands,” as follows:
“All the alternate sections of lands reserved by the State out of grants heretofore made or that may hereafter be made to railroads or other corporations of any nature whatever, one-half of the public domain, and all other lands heretofore set apart or that may hereafter be set apart for the benefit of public free schools, shall constitute a part of the perpetual free school fund.” Rev. Stats., art. 4031.
Ho discussion of the foregoing law is indulged in by the court. Close observance of it will show that it is not a literal copy of the Constitution, as is article 3703, but is a transposition of it so as to leave off the first and fourth subdivisions of section 2, article 7, but to retain both the “alternate section” and that same troublesome “one-half” clause. Under the peculiar phraseology of this article it would not be amiss to say that it was a legislative appropriation of public domain, a legislative construction of the Constitution, or a legislative execution of a duty imposed on it by organic law. Let the court hold it to be either, and the effect and result is the same—the public free schools have set apart to them “one-half of the public1 domain” in addition to the railway alternates reserved by the Acts of 1876 and 1854 to the State. But it may be contended that this statute is also inoperative, for the reason that no rules are prescribed for its enforcement. The statute further says:
“All lands heretofore or hereafter surveyed and set apart for the benefit of the public free schools, the University, the Lunatic Asylum, the Blind Asylum, the Deaf and Dumb Asylum, and the Orphan Asylum shall 'be sold and leased under the provisions of1 this act.” Rev. Stats., art. 4038.
“After any such lands have been surveyed and subdivided in accordance *402with the provisions of the preceding article, and such surveys and subdivisions have been platted on the maps of the General Land Office, such lands may be sold for their real value, but in no case for a less price than Si.50 per acre.” Rev. Stats., art. 4043.
The “preceding article” referred to was article 4039, Revised Statutes, that required the school part of the public domain to be surveyed and subdivided into quarter sections with a view to their sale. It was repealed at a later day because of “the great expense that will be entailed upon the State if said articles remain in force.” Gen. Laws 1879, p. 169.
Mark the points: It was not repealed on account of the “one-half” appropriation, nor for the reason that all the school lands were to be surveyed on the “ alternate plan ” by the railway companies, nor that the Legislature regarded the railway surveys paramount to the school grant, but because, as expressed in the act, of the great expense that such surveys at that time would entail upon the State.
Moreover, this court has already held that a grant of this kind is a sufficient appropriation of the land, and amounts to a segregation of it from the mass of public domain so as to preclude its appropriation by others. Day Land and Cattle Company v. The State, 68 Texas, 536.
Keeping in view that same “one-half” clause, the Legislature, after giving it general effect, proceeds in various ways to recognize and enforce it, in each special instance calling into exercise its control and disposition of the “public domain.” Following are a few acts showing legislative recognition of it:
“ One-half to be surveyed by pre-emptors for the school fund.” Act 1876, p. 168.
“ One-half the unappropriated public domain in Greer County appropriated to the public school fund.” Act 1879, p. 16.
“One-half of the amount realized from the sale of the first 50,000 acres of land sold under this act shall be deposited in the treasury of the State to the credit of the common school fund.” Act Feb. 30, 1879, sec. 17, p. 11.
“One-half the net proceeds of sales under the provisions of this act shall be and are hereby set apart for the benefit of the public free schools of the State.” Act July 14, 1879, sec. 10, p. 49.
By the Act of March 11,1881, more territory was added to the reservation contained in the foregoing act.
One-half to be surveyed for school fund alternate with grants to Confederate soldiers. Act 1881, p. 133.
“ That one-half of the proceeds of the sale of public lands is declared to constitute a part of the common school fund, and not subject to appropriations herein made.” Act Feb. 33, 1883.
The Legislature even gives the school fund an equal division with the State University, for it says:
*403“The remainder of said land not to exceed 2,000,000 acres contained in the counties and territory specially mentioned by said acts (July 14,1879, March 11, 1881, February 23, 1883), or the proceeds thereof, * ^ * shall one-half thereof constitute a permanent endowment fund of the University, * * * and one-half thereof shall constitute a permanent endowment fund for the common free schools of this State.” Act April 10, 1883, p. 71.
Then follows a re-enactment of the school law, which also carries with it that ever-lasting, never-lost, perplexing “ one-half ” provision of the Constitution, as follows:
“Section 1. Be it enacted by the Legislature of the State of Texas: That the constitutional provisions for public schools are hereby appended as a part of the school law of this State.” “All funds, lands, and other property heretofore set apart and appropriated for the support of public schools; all the alternate sections of land reserved by the State out of grants heretofore made or that may hereafter be made to railroads or other corporations of any nature whatsoever; one-lialf of the public domain of the State; and all sums of money that may come to the State from the sale of any portion of the same, shall constitute a perpetual school fund.” Act Feb. 4, 1884, p. 38.
Without further pursuit of legislation on this subject it is well to recur to the Act of 1879, disposing of the public domain in Greer County. It says:
“ Section 1. Be it enacted by the Legislature of the State of Texas: That all the vacant and unappropriated public domain embraced in the territorial limits of the county of Greer be and the same is hereby appropriated, one-half thereof for public free schools for the education of children in Texas, without reference to race or color, and the other half for the payment of the State debt.
“Section 2. Said lands shall be surveyed and disposed of for the purpose of carrying out the provisions of this act in such manner as may hereafter be provided by law.”
Ho railways or immigration mentioned. The Act of 1876 granting lands to railways was yet in force, but this Legislature gave that “one-half” constitutional clause full effect in the particular territory of Greer County. If, therefore, “railway grants” were among the “enumerated purposes” referred to by the court, and if the “one-half” clause, as it says, “ was to reach and hold beyond legislative control whatever portion of the public domain remained after the execution of the enumerated purposes,” then, as a logical and judicial result, this act is unconstitutional. On this point, however, there can be no doubt, as this court has settled it to the contrary, for in the case of Day Land and Cattle Company v. The State, 68 Texas, 526, in considering the question the court used the following unambiguous language:
“In so far as the act in question appropriated one-half of the unap*404propriated land in Greer County to this [school] purpose, it only carries into effect in the particular territory the mandate of the Constitution.”
A rule that would apply to Greer County should also be good as to every other county, and for the whole State as well. So when the Legislature in 1879 adopted articles 3703 and 4031, Revised Statutes, which appropriated to the public free schools “one-half the public domain of the State,” it carried into effect in the whole territory of Texas “the mandate of the Constitution.” If not, why not? The appropriation in the one instance applied to a single county, and in the other to the whole State, without reference to counties or county boundaries. The only difference between the two acts turns not upon principle but upon geographical limits. The one appropriation is simply larger than the other. If the quality of the principle is good, it ought not to be weakened by reason of the quantity to which it applied. Really this Day case is stare decisis on the point involved in the one now before this court, but the opinion nowhere refers to, criticises, or overrules it.
In discussing an appropriation of part of the public domain to a county this court, at its Austin Term, 1879, said:
“ She (the State) had long before set apart for one of the most important purposes for which it was her settled policy that this very domain should be used, and to which one-half of the same under her present Constitution is unreservedly dedicated.” Fannin County v. Riddle, 51 Texas, 368.
But few if any cases in this State ever received as much attention, or were so ably argued, or had such thorough consideration, as the one that held the Act of 1879, appropriating to the schools one-half the public domain in Greer County, constitutional. Pertinent to the issue on which the present case pends the court very aptly said:
“ We are of opinion that the words ‘any of the public domain’ as used in the act mean the same as ‘unappropriated public domain.’ Such is the sense in which these words are used in the Constitution and laws, although in some instances the words ‘unappropriated’ or ‘vacant’ are used in connection with them, as will be seen by reference to their use.
“Section 2, article 7, of the Constitution, after declaring that ‘all the alternate sections of land reserved by the State out of grants heretofore made or hereafter to be made to railroads or other corporations of any nature whatsoever’ shall constitute a perpetual school fund, provides that ‘ one-half of the public domain of the State,’ among the other funds named, shall constitute a perpetual school fund.
“ The alternate sections set apart to that fund were, in a general sense, public domain, but it was not thought that these lands would be embraced under the general terms ‘public domain,’ hence they were specifically appropriated, as they had been by former laws, and an additional grant was made to the fund of ‘one-half of the public domain of the State.’ The words ‘public domain’ as here used, meant simply that one-half of the *405public domain then unappropriated to some use by the Constitution or some precedent obligation should be so appropriated.” Day Land and Cattle Co. v. The State, 68 Texas, 526.
It will be observed that the foregoing decision was not in a case between private parties, but was between the State government and a corporation, and directly involved more property rights than this one. It would seem, therefore, that the interpretation of this very clause of the Constitution thus authoritatively declared in so important a case would be accepted and regarded as conclusively correct for the guidance not only of this court but of all the departments, courts, and citizens of the State. It is now part of the law of the land; and while any judge would be excusable for acting upon his own view and understanding of the Constitution, yet that decision was upon the point involved in this case, is the highest evidence which the State has of the true meaning of it, and should be accepted as authority so long as it stands unquestioned, unreversed, and no attempt whatever is made to explain or modify it, or to show that the Constitution then was misunderstood or misapplied. Certainly this court can not set the precedent of treating so important a case as that with such indifference as not even to refer to it. What does it mean if it does not coincide with the State's contention as to the purpose of that “ one-half ” clause?
That opinion was by an undivided court; and also in passing upon the defendant's plea of estoppel, based on the theory that the issuance of patents and construction of the Constitution by the Governor and Land Commissioner concluded and were final as to the State’s claim, the court had this to say:
“ The State can not be estopped by the act of the Governor and Commissioner of the General Land Office in issuing patents to land in disregard of law. Like all other officers, their powers are defined and limited by law, and acts done in excess of the powers conferred on them are not official acts.”
Without referring to this decision, or to the articles of the Revised Statutes, or to the message of the Governor, or to several of the legislative acts quoted herein, this court, in concluding its opinion now complained of, says:
“It is proper to say, in conclusion, that no disregard of any mandate of the Constitution by either the legislative or the executive departments of the State government, however often repeated or long continued, can be for one moment tolerated by the judicial department as a reason for a like disregard by that department. But when, as in this case, seven successive ‘Legislatures have through a period of thirteen years acted upon a given construction of the Constitution; when the department entrusted with the immediate administration of the land system of the State has uniformly concurred in that construction; and when successive Governors *406of the State, eminent for their patriotism and intelligence (more than one of them having served with distinguished success in this court), have approved it, we feel that nothing less than an absolute conviction that they have all been wrong would justify us in so deciding. The duty to decide correctly was as incumbent on them as it can be on ourselves. The people who made the Constitution, -with the knowledge of the construction that was being given to it, have without protestation, year after year, sent up to the capital other Legislatures to pursue the same policy. The lands have been assessed, and taxes have been demanded and received by the State, and the people, with unhesitating trust in the intelligence and honor of the State government, have bought and sold them.”
In the great length of this opinion it fails to cite even a single act of the “seven successive Legislatures,” or of either Governor, that in any way supports the view it takes of the Constitution; nor do the agreed facts show that “the people, with unhesitating trust in the intelligence and honor of the State government (or in any other way), have bought and sold” the lands; nor is there anything to indicate the like disclosed by the record.
As to legislative construction, investigation of the Revised Statutes and legislative acts herein cited and quoted will prove beyond doubt that this court is wrong as to its own construction, and also in the one it seems to think the other departments of the government have so long concurred in.
As to executive construction, the court is mistaken, for the reasons that all the land grants to railways under the present Constitution were received between August 16, 1876 (when the law authorizing them was passed), and April 22, 1882, the date it was repealed.
Ho Legislature met after the passage of that law of 1876 until in January, 1879. During that period the record here fails to show the issuance of any patents at all, and there was no Legislature to receive a message from Hon. R. B. Hubbard, the Governor by succession. Hence “executive construction” could not have been given by him. On assembling of the next Legislature in January, 1879, Governor Roberts (who “sat with distinguished success in this court ”) delivered the inaugural address, and afterwards the message herein quoted, wherein he expressly told that body that “one-half the public domain” belonged, and should be set apart, to the public free schools. In 1882, while he remained Governor, the law of 1876 granting lands in aid of railroads was repealed on the ground that the “public domain was exhausted,” and the record here fails to show and the court does not judicially know that any patents issued during the succeeding administrations of Governors Ireland and Ross.
Then how can this court determine that more than one Governor ever gave this provision of the Constitution a construction at all? The only one who had a reasonable or valuable opportunity to give it any construction was Governor Roberts. Certainly he did not say,'as this court holds, *407“ that the object of the clause granting one-half of the public domain to the school fund was to reach and hold beyond legislative control whatever portion of the public domain remained after the execution of the enumerated purposes.” On the contrary, he seemed to think none of it was tobe held “beyond legislative control,” and told the Legislature that the Constitution imposed upon it the duty of setting apart .for the public free schools “one-half the public domain of the State.” In pursuance of his excellency’s recommendations the Legislature passed the laws herein quoted, giving the schools “one-half” in all special instances, and adopted the Revised Statutes which, as before stated, appropriated by two different articles “ one-half of the public domain” to them.
In giving effect to the Constitution a great deal of the work was left to the committee of codifiers who, between the adjournment of the Legislature of 1876 and the convening of the next one in 1879, prepared .the Revised Statutes, wherein most if not all the constitutional provisions were put in force. With this explanation the court’s attention is again invited to a consideration of articles 3703 and 4031 of said statutes, which were overlooked, or at least unnoticed in its opinion, with the hope that they will be explained.
Do they support the court’s construction of the “one-half” clause or the one contended for by the State?
An inspection of the provisions of section 2, article 7, and other sections contained in the five Constitutions will show the unvarying clamor of the people of Texas for public schools. By the two first Constitutions they resorted exclusively to taxation as the method of raising revenue to support them. In the one of 1866 they added a contribution of part of the public domain to taxation for that purpose. The one of 1869 gave all the proceeds of sale of the public domain, one-fourth of the general revenue, and authorized local taxation without limit for the cause of education. That of 1876, with a vast domain to be disposed of, kept apace with the times in protecting most of it as a perpetual school fund. It was the first and only one that had this “one-half” clause in it.
In passing on the question here there seems to be no necessity for appealing to rules of construction to ascertain the meaning of the section of the Constitution upon which this case depends. Its words possess a natural signification; they embrace a definite meaning and involve no absurdity or contradiction in expression or import requiring the application of subtle rules to give them effect. All it has ever needed or now requires is impartial obedience and enforcement. Embodying as it does several conditional appropriations, it possesses only one absolute, positive dedication, and that is in plain English language, susceptible of only one meaning. “ One-half” means one-half the world over, whether it is expressed in the past, present, or future tense. The Constitution in granting “ one-half of the public domain ” spoke not as to past conditions nor future *408contingencies, but with reference to what then existed. To read it as it is written in suitable divisions can produce no conflict or confusion, but will give a clearer conception of the harmony, consistency, and independence of each provision of that section:
1. “All funds, lands, and other property heretofore set apart and appropriated for the support of public schools.”
2. “All the alternate sections of land reserved by the State out of grants heretofore made or that may hereafter be made to railroads or other corporations of any nature whatsoever.”
3. “One-half of the public domain of the State.”
4. “And all sums of money that may come to the State from the sale of any portion of the same shall constitute a perpetual school fund.”
It would be impossible to convey thoughts in plainer language.
As an able writer says: “In interpreting clauses we must presume that words have been employed in their natural and ordinary meaning. The framers of the Constitution and the people who adopted it must be understood to have employed words in their natural sense, and to have understood what they meant. This is but saying that no forced or unnatural construction is to be put upon their language.” Cool, on Const. Lim., 72.
Another said: “My rule has ever been to follow the fundamental law as it is written, regardless of consequences. If the law does not work well the people can amend it, and inconvenience can be borne long enough to await that process. But if the Legislature or the courts undertake to cure defects by forced and unnatural constructions, they inflict a wound upon the Constitution which nothing can heal.” Oakley v. Aspinwall, 3 N. Y., 568.
Each of the four provisions of said section 2 is independent of the other' and can stand alone. Strike out the first, and the second is good. Eliminate the first and second, and the third would stand. Leave all those three out, and the last can not be affected. Let them all remain, and consistency and harmony prevail.
Adherence to the plain words of the Constitution and statutes uoav in force and consideration for the unclouded intent to be found in them would give to the perpetual public free school fund of Texas, in addition to its alternate sections, one-half interest in every foot of land held by any private corporation under the State acquired since the present Constitution took effect.
Even in the result of the court’s own rule by which the “ one-half” clause was intended to be given effect, the school fund was greatly the loser; for the opinion says: “ This calculation leaves the school fund 5,282,153 acres short of one-half of the public domain not consumed by specified appropriations under the direction of the Constitution.” In view of this admission by the court, and of the declaration by the Legislature in 1882, Avhen it repealed the law granting lands to raihvays “because the public domain *409has been exhausted,” it might again be pertinently asked, what does the court mean when it says, “That the object of the clause granting one-half of the public domain to the school fund was to reach and hold beyond legislative control whatever portion of the public domain remained after the execution of the enumerated purposes?”
As the school fund by the court’s rule gets 5,000,000 acres less than nothing from the “one-half ” clause,'then it is difficult to understand what is left for that provision “to reach and hold beyond legislative control.” The opinion argues that it has been ignored by the Legislatures, Executives, and Commissioners; that they have maintained a different construction from the one contended for by the State, and it advances a rule by which that clause shall be put in force.
By that rule the “one-half” clause is inoperative, useless—of no effect. The “enumerated purposes” of “railway grants,” “homestead grants,” the State Capitol, and University grants were not satisfied until the public domain was exhausted, according to the declaration of the Legislature in 1882, when the law authorizing aid to railways was repealed, and there was no public domain left for it to “reach and hold beyond legislative control.”
In passing on another provision of the Constitution in this case (not raised by the pleadings or facts) this court says: “It ought to be given some effect rather than to make it meaningless and surplusage.” According to results, has not that important “one-half ” clause been made “meaningless and surplusage?” If not, has effect been given it; and if so, how and in what way? Counsel for the State can not propose an answer.
Doubtless, however, this question is effectively answered by a declaration of the court in concluding its discussion of the division on the “one-half” plan, wherein it says, “It will be conclusively presumed that through such division the school fund has acquired all of the public domain that it was entitled to under the Constitution.” The right to “one-half” in the beginning is admitted, and 5,000,000 acres loss, by the court’s rule, is declared in the end. The amount now to be forever settled by the conclusive presumption of the court! In behalf of justice, of every rule and principle of equality and reason, why could not such presumption be indulged in behalf of the public free school fund?
In the fountains of patriotic hearts the spirit of public education was enshrined, consecrated. From the minds of prophetic statesmen it leaped forth and took shape in the thought of Texas manhood. It was laid as a corner stone among the bed rocks of the Republic upon which the structure of a great State was to rest. Deeply set in the organic instrument that gave protection to all that were to follow, it has ever so remained unmoved, and by all admitted as the one grand foundation in which “the preservation of the liberties and rights of the people” took succor and found life. Year after year it has grown, without a graceless hand to smite *410it or a rancorous breath to blight it; but now, at the threshhold of its vigorous maturity, when it demands rights under the Constitution, other claims are made paramount to its cause.
Equality, justice, law, and principles of constitutional supremacy invoke yet recognition of its pristine purity in its demands for what of right belongs to it.
Most respectfully submitted, with the confiding hope that this court will take all the time demanded by the importance of the issue to review each of the constitutional and legislative provisions and the executive and judicial interpretations herein referred to, so that what is law may be declared by an undivided bench in this case.
L. D. BrooJcs, Esq., also filed a written argument in support of the motion.
May 2, 1890, motion overruled, Chief Justice Stayton dissenting and filing the following dissenting opinion: