dissenting. —Magnitude of the interests involved in the question decisive of this case, and the broad divergence of opinion entertained by members of this court, must furnish my reason for stating what is believed to be the true construction of those parts of the Constitution on which the decision must rest.
In construing a constitution, or any other law, the object sought is the true intent of the law maker, which must be ascertained from the language in which the law is written, and in considering this it is always important to keep in view the object which the law maker intended to accomplish through its enactment.
The more intensely the law maker may be seen to have desired to accomplish the given purpose, the more weight should be given to the language used in a law looking to that end. When it is seen that the people of a great State have persisted throughout the entire period of their statehood—in prosperity and in adversity, in peace and in war—in the accomplishment of a purpose which they have declared again and again of the utmost importance to their welfare if not to their existence; when from time to time as occasion offered they have manifested their deep concern to accomplish it by increasing the fund with which this may be done, their language used in laws looking to that end ought not to be lightly weighed.
The first section of the article of the Constitution on which the decision of this case rests declares that “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 maintainance of an efficient system of public free schools."
*411This utterance is not new to the people of Texas. Before it became a separate nationality, in the face of an hostile army bent on subjugation, when the future was dark, the fathers of the Republic, in summing up the wrongs which drove them to seek refuge from oppression through revolution, declared that the Mexican nation had “failed to establish any public system of education, although possessed of almost boundless resources (the public domain), and although it is an axiom in political science that unless a people are educated and enlightened it is idle to expect the continuance of civil liberty or the capacity for self-government.”
The same men, in the Constitution then made, declared that “it shall be the duty of Congress, as soon as circumstances will permit, to provide by law a general system of education.” Const. Rep., Gen. Prov., sec. 5.
When it surrendered its nationality and entered the Union it preserved the fund now in question, and in the Constitution of 1845 first used the language found in the present Constitution before quoted. That Constitution preserved to the school fund all that had been donated by the Congress of the Republic, imposed upon the Legislature the duty “as early as practicable to establish free schools throughout the State,” and “ to set apart not less than one-tenth of the annual revenue of the State derivable from taxation as a perpetual fund.” Art. 10, secs. %, 4. It made other provisions in lands. The accumulation of that fund and the sources, from which it came may be traced through the legislation of the period. Again came devastating war, but the purpose was never abandoned; the fund though for a time partially diverted was restored.
In 1854 the system of granting aid through alternate sections of land to railway companies began, through which the State required 16 sections of land for every mile of railway built to be surveyed for the State. This land was reserved from location, entry, or pre-emption privileges; and when the people again met in convention to remodel their organic law they repeated the declaration before quoted, secured to the perpetual school fund all funds which had theretofore belonged to it, provided for taxation for school purposes, and in addition to this declared that “all the alternate sections of land reserved by the State out of grants 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 and resources of the State, shall be set apart as a part of the perpetual school fund of the State; provided, that if at any time hereafter any portion of the public domain of this State shall be sold, and by virtue of said sale the jurisdiction over said land shall be vested in the United States government, in such event one-half of the proceeds derived from said sale shall become a part of the perpetual school fund of the State; and the Legislature shall hereafter appropriate one-half of the proceeds resulting from all sales of the public lands to the perpetual school fund.” Const. 1866, art. 10, secs. 1, 7. It secured *412to counties the school lands theretofore granted to them, as did it secure the grants of money and lands theretofore made to found and support one or more universities.
The period of “reconstruction” came, and the Constitution of 1869 was adopted. That took from the Legislature the power to grant land to aid in the construction of railways or other like improvements, but provided that lands might be sold only to actual settlers in small quantities. In reference to education it contained the following provision:
“Section 1. It shall be the duty of the Legislature of this State to make suitable provisions for the support and maintenance of a system of public free schools for the gratuitous instruction of all inhabitants of this State between the ages of six and eighteen years.”
“Section 4. The Legislature shall establish a uniform system of public free schools throughout the State.”
“Section 6. As a basis for the establishment and endowment of said public free schools, all the funds, lands, and other property heretofore set apart and appropriated or that may hereafter be set apart or appropriated for the support and maintenance of public schools shall constitute the public school fund. And all sums of money that may come to this State hereafter from the sale of any portion of the public domain of the State of Texas shall also constitute a part of the public school fund. And the Legislature shall appropriate all the proceeds resulting from sales of public lands of this State to such public school fund. And the Legislature shall set apart for the benefit of public schools one-fourth of the annual revenue derivable from general taxation, and shall also cause to be levied and collected an annual poll tax of Si on all male persons in this State between the ages of twenty-one and sixty years for the benefit of public schools. And said fund and the income derived therefrom and the taxes therein provided for school purposes shall be a perpetual fund, to be applied as needed exclusively for the education of all the scholastic inhabitants of this State, and no law shall ever be made appropriating such fund for any other use or purpose whatever.”
It attempted to place the lands theretofore given to counties for school purposes under the control of the Legislature, the proceeds to be added to the public school fund, and further provided for local taxation for support of schools if found necessary.
By amendment to that Constitution the policy in reference to grants of land in aid of internal improvements was changed on March 19, 1873, but the day before the amendment took effect the Legislature set apart one-half of the public domain for the support of public schools. The act by which this was done evidently ivas prompted by the anticipation that lands would be appropriated to works of internal improvement, and secured to the school fund alternate surveys to be made under certificates theretofore or thereafter to he issued, and seems to have looked to that *413method for securing the one-half then appropriated. Gen. Laws 1873, p. 15.
After the amendment of the Constitution last referred to no general law was passed granting land to aid in the construction of railways until the Act of August 16, 1876 (Gen. Laws, p. 153), though after that amendment such aid was given in special laws contained in charters before the passage of the act last referred to, but grants were made in alternate sections as required by the Act of March 18, 1873, as well as by the Act of August 16, 1876.
Legislation from January 26, 1839, to the adoption of the present Constitution manifested the same deep interest in the cause of free public education shown in the organic laws to which reference has been made; and in view of this persistent and unfaltering purpose, not manifested for any other objects, must be read the language found in the present Constitution. Section 2, article 7, and so much of sections 4 and 5 of the Constitution as have bearing on the question involved in this case are as follows:
“Section 2. All funds, lands, and other property heretofore 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 a perpetual school fund.”
“ Section 4. The lands herein set apart to the public free school fund shall be sold under such regulations, at such times, and on such terms as may be prescribed by law; and the Legislature shall not have power to grant any release to the purchasers thereof.”
“Section 5. The principal of all bonds and other funds and the principal arising from the sale of the lands hereinbefore set apart for said school fund shall be the permanent school fund; and all the interest derivable therefrom and the taxes herein authorized and levied shall be the available school fund, which shall be applied annually to the support of the public free schools. And no law shall ever be passed appropriating any part of the permanent or available school fund to any other purpose whatever; nor shall the same or any part thereof ever be appropriated to or used for the support of any sectarian school; and the available school fund herein provided shall be distributed to the several counties according to their scholastic population, and applied in manner as may be provided by law.”
On the interpretation of section 2 rests the right of the parties, and in seeking for that we must look to the language used, remembering that the intent to be ascertained is that of the people who ratified the Constitution. As has been truly,said, “it is not to be supposed that they have *414looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding and ratified the instrument in the belief that that was the sense designed to be conveyed.” Cool, on Const. Lim., 80.
Courts are not at liberty to speculate as to what the people would have done under any given state'of facts when called upon to construe a constitution, but are bound to ascertain what they did—what they intended to do—and this from the language used in making known their intention. That ascertained, the only remaining duty is to give effect to that intention.
It is not claimed that there is a conflict real or seeming between the section of the Constitution in question and any other, and the sole inquiry is, what lands did the language used appropriate to and make a part of the perpetual or permanent school fund?
The first inquiry arising is, does this section make an appropriation of the several sources of revenue named in it?
A fund or property is said to be appropriated when it is reserved or destined by law for a particular named use or purpose.
The declaration that the specified funds together “ shall constitute a perpetual school fund” of itself leaves no doubt upon this question; for the word “constitute” as here used is the equivalent of the words “compose,” “make up,”'“be,” the unit composed of the several constituents, which it is declared shall be perpetual, continuing indefinitely, without cessation or interruption by any department of the government, and subject to diversion only by the will of the people which may be expressed in some future organic law.
All the lands referred to in the several clauses of section 2 are the same in their entirety as the lands referred to in sections 4 and 5—nothing left out or added. These last sections speak of these lands as “ the lands set apart to the public school fund,” and declare that “the principal of all bonds and other funds and the principal arising from the sale of the lands hereinbefore set apart to said school fund shall be the permanent school fund.”
As if to place this question beyond controversy, then follows the declaration that “no law shall ever be enacted appropriating any part of the permanent or available school fund to any other piurpose whatever.”
Property thus set apart as a permanent or perpetual fund for a named use, with power denied to the Legislature ever to divert it from that use, is appropriated as absolutely as the people had power to appropriate. ¡No more apt words could have been used to declare an appropriation than are used in sections 2, 4, and 5 of article 7, and it ought not to be assumed that the people did not understand the meaning of the vernacular, in no manner technical, used by themselves.
The question of appropriation will be more closely, considered in other connections.
*415If the Constitution appropriates to the school fund each of the items which make up the aggregate denominated in section 2 the “perpetual school fund,” when did that appropriation take effect? To this inquiry there can be but one answer. The people declared that the Constitution should become the law of the land on April 18, 1876, and from the mo-, ment it so became its provisions were binding upon the péople and upon every department of the government alike, and must so continue until changed by the people themselves.
The opinion of the majority is understood to hold that sections 2,4, and 5 of article 7 are not self-executing. Section 1 of that article makes it the duty of the Legislature to establish and make suitable provision for the support of an efficient system of public free schools, and while this is mandatory it is not self-executing. It rests with the Legislature to determine what the system shall be, and to provide for realizing from what is termed the perpetual fund an available fund and for the manner of its use. As to the system and best means for the conduct and support of the schools contemplated by the Constitution, much is left to the discretion of the Legislature. Without legislation on these subjects no system could exist, the Constitution having established none; nor could an available fund arise from the fund termed perpetual for the support and maintenance of any system of public free schools. In so far the Constitution is not self-executing.
It may be further conceded that, in a limited sense, so much of section 2 of article 7 as made alternate sections out of grants made to railroads or other corporations after the adoption of the Constitution a part of the perpetual fund was dependent on the action of the Legislature. Ho general law existed when the Constitution was adopted giving land to aid in the construction of railroads or other corporate enterprises. Whether such laws should be enacted depended upon the will of succeeding Legislatures, the Constitution not commanding the passage of such laws. In so far the appropriation made by the Constitution depended on a contingency, in that it rested on the will of the Legislature.
If, after the Constitution was adopted, no lands had been granted to railroads or other corporations, there would have been no “alternate sections of land * * * out of grants * * * that may he hereafter made” to become a part of the perpetual school fund. In this respect the Constitution did not absolutely secure to the perpetual school fund, by force of its own provisions alone, a single acre of land; but it does not follow from this that even as to such lands it is not self-executing.
Both parties to this appeal concede that the alternates of the sections of land in controversy belong to the school iund; and so simply because the Constitution declares they shall so belong. This is not by force of any act of the Legislature, but solely by reason of the self-executing provision of the Constitution which attaches whenever such grants are made. *416This being concededly true of the only item of the appropriation which had in it any element of uncertainty, where is to be found a secure resting place for the proposition that any part of section 2 of article 7 of the Constitution is not self-executing, in so far that it binds'every item that makes up the aggregate fund to it with chains so strong that neither one nor all the coordinate departments of the government can rend them. All other clauses of that section are absolutely self-executing in every sense having relation to the fact of appropriation, unless the power of the people to appropriate can be successfully denied.
If the Legislature had not established a system of public free schools, or should now repeal all laws in force providing for their establishment and management, or for realizing from the perpetual fund an available fund for annual use, the perpetual or permanent fund appropriated and put beyond the reach of the Legislature for purposes of destruction or diversion would continue to exist; and this would result solely from the fact that every one of the clauses of the appropriating sections are self-executing.
The act of appropriating this fund and placing it beyond the power of the Legislature to divert or destroy it is an instance of the exercise of a power by the people directly, completely, and absolutely in regard to a matter which might have been left to the Legislature; and the fact that they did this ought to be deemed of itself the strongest evidence of the intent of the people to make the law self-executing if the language in which the intent to appropriate is found left the question not free from doubt. The language used, however, bears no uncertain meaning unless we deny to the words used their ordinary and most obvious signification.
The instance before us is one in which the people exercised their own power, in so far as it was deemed expedient, to firmly and'broadly lay the foundation and furnish the means to erect, through details to be provided by the Legislature, a structure to last for ages. Such provisions in a Constitution are self-executing necessarily in so far as they determine and fix the fund with which public schools are to be maintained, for they deprive every department of the government of all power to diminish or to divert it.
The sections of the Constitution having direct bearing on the question involved in this case do not merely indicate a policy or announce a principle, nor are they advisory in character. They declare a right, give its measure, the subject matter to which it attaches, and assert it to be perpetual, and where this state of facts is found to exist the law which brings it into being is necessarily self-executing.
Several sections of the Constitution not bearing directly on the question involved in this case, but affecting the lands of the State, have been appealed to for the purpose of giving strength to the propositions that these m question do not make an absolute appropriation and are not self-executing, and these will be briefly noticed, for every provision of the *417Constitution having even a remote bearing is entitled to a candid consideration and to be given full weight in the search for truth and right. It has been suggested that if the people had intended to make the sections of the Constitution in question self-executing, and through them to make an absolute appropriation of all the lands specified in section 2, some such language would have been used as is found in section 6 of the same article. That section has application to county school lands, and declares that lands theretofore or thereafter to be granted to the several counties for educational purposes “ are of right the property of said counties respectively to which they were granted, and title thereto is vested in said counties,” This language was not necessary to appropriation, and could not with propriety have been used in relation to lands which were to continue the property of the State until sold to individuals.
The earliest grants of land for educational purposes were made to counties in pursuance of the policy foreshadowed by the Constitution of the Republic. Acts Jan. 26, 1839, and of Jan. 16,1850, Pasch. Dig., arts. 3464-3476.
The location and survey of these lands were paid for by the several counties, in whose ownership they remained without question until the adoption of the Constitution of 1869, whereby an effort was made to destroy the counties’ ownership, and to make the proceeds of such lands a part of the public school fund. Const. 1869, sec. 8, art. 9. In Milam County v. Bateman, 54 Texas, 153, that section of the Constitution was held inoperative because to give it effect would destroy vested rights.
That decision, however, had not been made when the present Constitution was adopted, and the language quoted from section 6, article 7, was doubtless inserted for the purpose of restoring to the several counties the lands which it was thought were taken from them by the former Constitution, or for the purpose of removing any doubt cast upon the title of the counties by that instrument. This was its purpose, and that language used to manifest that intent is not found in the section in question,-where it was not needed and would have been inappropriate, can not diminish the force of the words found.
The language of section 15, article 7, which makes, as all concede, an absolute appropriation of land for the University, is not more imperative and does not more clearly evidence an intent that it shall be self-executing than do sections 2, 4, and 5 of the same article in so far as they make or recognize an appropriation.
In the one case as in the other the lands are declared to be “set apart.” In respect to the University lands, however, it was declared that these should in part consist of lands “to be designated and surveyed as may be provided by law.” The appropriation was absolute without the words quoted, for no one would seriously contend that the Constitution did not secure to the University the number of acres named, and thus withdrew *418from the Legislature the power to defeat its right to them or to grant to others so much of the public lands as would defeat the University’s right.
The appropriation for the University, even with an express declaration that the land appropriated should be designated, was less certain than -was the appropriation of “one-half of the public domain of the State;” and the language found in section 16, article 7, can not with propriety'be invoked to sustain the proposition that the appropriation for the University was absolute, but that for public schools embraced within the words “ one-half of the public domain” was not intended to be so, nor to support the proposition that the one provision wras self-executing and the other not. This is especially true in view of the fact that the Constitution commanded the Legislature to “pass such laws as may be necessary to carry into effect the provisions of this Constitution. Art. 3, sec. 42. In the one case as in the other, segregation was necessary to designate the particular lands appropriated before they could be sold, but the appropriation in neither case depended on that.
Section 57, article 16, of the Constitution provided that “three millions acres of the public domain are hereby appropriated and set apart for the purpose of erecting a new State Capitol and other necessary public buildings at the seat of government, said lands to be sold under the direction of the Legislature; and the Legislature shall pass suitable laws to carry this section into effect.”
This language is no more emphatic than that found in the sections bearing on the question before us. Each in terms proposes to set apart lands for a particular purpose, and requires legislation to carry out the purposes for which appropriations were made. They all relate to lands set apart for named purposes, which it was known must be sold to realize means for carrying out the purposes contemplated. With a view to sales it was necessary that tiré appropriated lands should be segregated; but this was not necessary to the appropriation unless it be true that the people had not power to appropriate an undivided part of the public domain. To that point must those go who deny that the sections of the Constitution in question are not self-executing and do not absolutely appropriate a part of the public domain.
That the people through section 2, article 7, of the Constitution made some appropriation absolutely to the public free school fund neither party denies, and the vital question in the case is, what did the people thus appropriate?
That section enumerates in a general way the several items which make up what is therein termed the “perpetual school fund.”
Section 5 of same article terms the interest-bearing securities on hand and to be acquired with the proceeds of the sales of lands appropriated by section 2 the “permanent school fund.”
The words “perpetual” and “permanent” have practically the same *419signification, and the basis for the entire fund is found in section 2, for none other makes appropriation to that fund. The word “fund” as here used means the entire property from which money is to be derived for the maintenance of public free schools—the foundation on which rests the support of the system of schools which it is made the duty of the Legislature to establish and maintain. Each clause of section 2 makes an appropriation complete within itself when considered with its necessary connections, the one not dependent upon the other, and together constituting an aggregate which the people have declared shall constitute a perpetual, permanent fund. Looked to as an entirety, the section seems to be too clear to justify construction; if separated into its parts the same conclusion must be reached, unless we deny to words their most obvious and usual meaning. The first clause of the section with its necessary connection will read as follows: “All funds, lands, and other property heretofore set apart and appropriated for the support of public schools shall constitute [part of] a perpetual school fund.”
Looking to laws in force when the Constitution was adopted we readily perceive what funds passed by this clause of the section, the purpose of which was to preserve existing appropriations. Neither party denies that the fund covered by this clause was absolutely appropriated, nor is it claimed that legislation was necessary to give effect to it.
The second clause of the section, with its necessary connections, will read, “all the alternate sections of land reserved by the State out of grants heretofore made or that may be hereafter made to railroads or other corporations of any nature whatsoever shall constitute [part of] a perpetual school fund.” It is not denied that this clause made an absolute appropriation of the lands embraced in it, nor can there be ground for claim that legislation was necessary to the appropriation, even though the extent of the appropriation made by the last division of the clause was dependent on legislation and the acts of corporations thereunder to some extent.
The application of the first division of the clause is clear, and thereby it was intended to preserve and continue appropriations made by section 3, article 10, of the Constitution of 1866, continued by section 6, article 9, of the Constitution of 1869, as well as to preserve appropriations made by the Act of March 18, 1873.
The second division of this clause has application to alternate sections to be located after the Constitution took effect, by railway companies or other corporations, on certificates issued before or after that date, and if dissevered from its immediate associate, with its necessary connections, will read, “all the alternate sections of laud reserved by the State out of grants * * * that may hereafter be made to railroads or other corporations of any nature whatsoever * * * shall constitute [part of] a perpetual school fund.”
*420The third clause of the section, with its necessary connections, will read, “one-half of the public domain of the State * * * shall constitute [part of] a perpetual school fund.”
My brother who wrote the opinion of the majority, in construing the fourth clause of the section, asserts a proposition calculated to cast doubt on the unity of purpose of every clause contained in it, which in this connection it is proper to notice. That clause ¡irovides that “all sums of money that may come to the State from the sale of any portion of the same shall constitute [part of] a perpetual school fund.”
It is suggested that this appropriated all proceeds of sales of public domain to the school fund, and that it did not merely appropriate the proceeds of land appropriated to that fund. This clause, manifestly, has reference only to lands or other property which had been appropriated by preceding clauses of the same section, and the purpose of its insertion evidently was to leave no doubt that money to be realized from the sale of appropriated property should be considered as fully appropriated to the perpetual school fund as was the property from which it was to be derived. The word same used in the clause doubtless refers only to property by that section appropriated to the perpetual school fund.
This is its obvious construction, without reference to any other section of the Constitution; but if there could be doubt as to this it is removed by a consideration of the fifth section of the same article, which, with the-fourth, may not have been given in the disposition of this case that weight that should have been in construing the second section.
The fifth section declares that “ the principal of all bonds and other funds and the principal arising from the sale of the lands hereinbefore set apart for said school fund shall be the permanent school fund, and all the interest derivable therefrom and all the taxes herein authorized .and levied shall be the available fund, which shall be applied annually to the support of the public free schools.”
There are but two classes of school funds recognized by the Constitution, and it declares of what these shall consist. , One is the available fund, and the sources from which it is to be derived are declared by the Constitution. The principal of moneys derived from the sale of lands is not one of these sources.
■ The other is the fund termed “perpetual” and “permanent,” and in so far as it consists of proceeds of sale of lands is restricted to the “principal arising from the sale of lands hereinbefore set apart for said school fund.” The lands referred to as lands hereinbefore set apart are the lands appropriated by section. 2, for no other part of the Constitution undertakes to appropriate lands to the perpetual public free school fund.
Whether the Legislature might make other appropriations it is not now necessary to consider, there being no prohibition of such legislation, for the question now is, what did the Constitution appropriate?
*421Appropriations made by the first, second, and third clauses of section % are clearly cumulative, whether the construction of the one or the other party be placed upon them; appropriation made by one clause is in no manner made dependent on another, and at the time the Constitution was adopted the first, third, and first division of the second clause had application to things certain, then existing, and easily identified. As to them, the appropriation was as absolute as words most apt could make it, and the fact that no specific half of the public domain was appropriated ought not to defeat the intent of the people so clearly expressed. They knew that there had been no division of lands subject to the third clause into two parts when the Constitution was adopted, and with reference to the state of fact then existing made the appropriation, which then necessarily vested an undivided interest.-
It must be conceded that this was done with expectation that the Legislature would in some proper method segregate that part of the public domain appropriated to the school fund from that which should remain subject to appropriation by outstanding certificates, other valid claims thereafter to arise, of to such disposition as the Legislature might lawfully make of it. The power of the people to make such an appropriation can not be denied. The language used by them in doing this in a contract between individuals would receive but one construction.
A distinguished author truly said that “Every word employed in the Constitution is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify, or enlarge it. Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical or judicial research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them, the people adopt them, the people must be supposed to read them with the help of common sense, and can not be presumed to admit in them any recondite meaning or any extraordinary gloss.” Story on Const., 451.
Apply these rules to the declaration “ that one-half of the public domain of the State shall constitute [part of] a perpetual school fund,” and what intent or meaning can be drawn from them other than that the people intended absolutely to appropriate one-half of the unappropriated public domain to the school fund ?'
Where can be found in the context anything to require or justify a different meaning to be attributed to them than that which the words in their ordinary use convey?
The immediate context and the entire Constitution may be searched in wain for anything to justify varying their import.
If we are to indulge in speculation and conjecture to find reasons why *422the people did not intend what their words import, then constitutions will cease to he safeguards to rights of persons or property. As before said, the Constitution took effect in all its parts the very moment the people declared it should, and the appropriation of the then one-half of the otherwise unappropriated public domain became as absolute as it ever could. Any other proposition must be based on the theory that the people had not the power to appropriate one-half of an undivided whole, or that the failure of the Legislature to make the segregation would defeat the clearly expressed will of the people. What the Legislature could not do by an affirmative act could not be accomplished by its mere failure to act at all.
It is contended by appellant that the words “one-half of the public domain of the State,” used in the third clause, were intended only to embrace lands remaining, if any, after railroads and other corporations had received in alternate surveys what lands they might take; “that the expression 'public domain of the State’was not meant to embrace lands thereafter taken up under the law granting lands to railroads;” and the further proposition is made that “it was only through the operation of the law concerning grants to railroads and its practical application to the public domain that the school fund could receive any land under it. If the railroad got no land, the school fund could get none.”
It is certainly true that it was not intended that the appropriation made by the third clause of section 2 should embrace lands to be thereafter taken up under laws granting lands to railroads and other corporations in alternate surveys, but it does not follow from this that such corporations could thus appropriate any lands appropriated by that clause to the school fund. The proposition that it was only some remainder which might be found to exist at some future time, after railroads and other corporations had acquired through alternate surveys all the lands they desired or were permitted by the Legislature to take, to which that clause of the Constitution could have application finds recognition in the opinion of the majority, as does the further proposition that it was intended partition should be made only through the grant of lands to corporations through alternate surveys. The fallacy of both these propositions is evident from several considerations.
The proposition that the appropriation only applies to an uncertain remainder, to be ascertained at some future time after corporations had acquired all the lands they desired or that the Legislature would permit them to take, assumes that the Constitution does not deal with the public domain at the moment it became the law of the land, when there is nothing in the language of that instrument to justify such an assumption. It must be admitted that the people intended to place something denominated “one-half of the public domain” in the school fund, and to de*423prive the Legislature of the power to appropriate this something to any other use.
If by the words is not meant one of two equal parts of the whole public domain not otherwise appropriated by the Constitution, it .must mean something termed the “residue” or “remainder,” which simply means that left after a part is taken away. The remainder of one-half in the nature of things can not be equal to it. The word involves the idea of diminution, which can not exist unless some larger standard is once fixed, nor can diminution be made without a power to make it.
The words of the Constitution leave no doubt of the intent of the people to fix the measure of the appropriation made by the third clause at one-half of the public domain; and we must concede that they did so fix it with reference to the area of public domain existing unappropriated until this was done by the Constitution, or that they left its area to be determined by the Legislature at some future time, after a part of it had been appropriated by that body or with its consent to some use to which the people did not appropriate it through the Constitution. If the first proposition be granted all controversy must cease, for the Constitution declares that the Legislature shall not appropriate to other use that which the people through it appropriated to the school fund. If the last proposition be correct, then we are forced to the conclusion that the people made no appropriation at all when they declared that one-half of the public domain should constitute a part of the school fund; but this conclusion is not contended for, and it is admitted that the people did thus appropriate something that the Legislature could not take away.
This brings us to the question whether power was left in the Legislature to determine what this remainder—this something called in the Constitution “one-half of the public domain”—should be; for if it be conceded that the Legislature had such power, then it is too clear that it was clothed with power to declare that no part of the public domain should pass to the school fund by the third clause of the section under the words “one-half of the "public domain.” It must be remembered that no part of the Constitution required the Legislature to permit corporations or individuals to acquire lands through the alternate system except as this may have been done by the recognition of such claims then existing. In fact, it was left wholly to the discretion of the Legislature whether any lands should be granted to corporations except under claims existing when the Constitution was adopted and recognized by it; and it is evident that with reluctance the people left this power in the hands of the Legislature to be exercised in some cases only under prescribed restrictions.
From this it necessarily follows that the Legislature had power to refuse to grant lands in alternate sections, whereby, in so far, one-half of the public domain would enure to the school fund, as it is claimed was intended under the second branch of the second clause. In so far, then, the *424Legislature had power to refuse to secure to the school fund through alternate survpys under grants to corporations any lands whatever, and could thus defeat not only the method of partition claimed to have been intended, but also the acquisition of one-half of the public domain through such survey. If the Legislature pursued that course—and in considering its power it is not necessary to inquire what it did, but what it had power to do—it may be said that the State would still own the land, and therefore one-half of the public domain could be set apart to the school fund without reference to the alternate surveys.
That is all true; but it must again be remembered that the Constitution entitles actual settlers to land, and leaves it in the power of the Legislature to make other uses of public domain without limit, subject only to the specific appropriations made or rights recognized in the Constitution.
It must further be remembered that no period is-fixed when grants to settlers shall cease, but on the contrary the rights of such persons are recognized to exist so long as unappropriated land exists; and the Constitution imposes no limit or point of time within which the Legislature may make appropriation of land to any purpose not forbidden; nor does it. limit the extent of such appropriation except as this is done through appropriations made by the people themselves.
Thus it will be seen, if the contention of appellant that the Constitution does not appropriate one-half of the. public domain as it was at the time the Constitution was adopted is correct, that there is nothing to withdraw from the Legislature the power to hold open to actual settlers or other use every foot of public land for all time to come, which is not taken up by lawful claim, and the school fund thus be denied any part of the public domain under the third clause of the section in question, unless perchance some lands might be received through the second branch of the second clause, and thus become chargeable to the one-half of the public domain, as is contended would be the case. The existence of such a power in the Legislature with any vested right of the school fund to anything under the grant of one-half of the public domain, whatever the extent of that may be, is impossible; for it would be a power to destroy the grant, which is expressly denied to the Legislature—or, what is the same thing, to deny that the time had come when the residue to be held beyond legislative control was ascertained, or should be.
The proposition that the words “one-half of the public domain” are not to be given their ordinary meaning does violence to every recognized canon of construction applicable, for there is no word in the entire section which shows the slightest intention to limit the meaning of these words to less than one of two equal parts of the whole unappropriated otherwise than by the Constitution.
To make these words mean some residue of the public domain existing at some time after the adoption of the Constitution, when part had been *425granted away, is to make them mean something not expressed by any word used in the appropriating section.
The rule applicable here is, that “effect is to be given if possible to the whole instrument, and to every section and clause. If different portions seem to conflict the courts must harmonize them if practicable, and must lean in favor of the construction that will render every word operative rather than one which may make some words idle and nugatory.” Cool, on Const. Lim., 70.
That there is even a seeming conflict between any of the clauses of the Constitution on which the decision of this case must rest can not be successfully asserted, nor is it understood to be. But the proposition, in effect, is made that the second branch of the second clause of the section in question does not appropriate any land not embraced in the third clause; that the two together only appropriate one-half of the public domain not otherwise appropriated by the Constitution. If this was the intention, why the declaration that “all the alternate sections of land reserved to the State out of grants * * * that may hereafter be made * * * shall constitute [part of] a perpetual school fund,” when the declaration that “ one-half of the public domain of the State * * * shall constitute [part of] a perpetual school fund” would accomplish all that was intended by both? Ho good reason can be given for the insertion of the two other than that the people intended to appropriate all the lands that would be embraced in both—that the appropriation should be cumulative; and in the absence of an insufficient public domain to satisfy both and all other appropriations, there is no reason for placing on the words used by the people a meaning which neither their ordinary import nor the context justifies. If it had been intended that through alternate grants thereafter to be made to corporations one-half of the public domain should be secured to the school fund, it is incomprehensible why the people did not at least provide that such grants should be made instead of simply not denying the power to grant lands to corporations.
One-half of the public domain, however, could not have been segregated for the school fund through alternate grants to corporations unless there had been no other recognized claims for land; for under such grants the school fund would receive no more land than the corporations, which demonstrates the fact that it was not intended through such grants to secure to the school fund lands other than those it was entitled to receive under the clause appropriating alternate surveys to be made, and tends strongly further to establish that the appropriations were intended to be cumulative.
The proposition that it was intended to appropriate a part of the public domain to the school fund only in event lands were subsequently granted to corporations in alternate surveys does not require consideration. The Constitution revived land certificates barred by the former Constitution, *426and provides that “all unsatisfied genuine land certificates now in exist-: ence shall he surveyed and returned to the General Land Office within five years after the adoption of this Constitution or be forever barred; and all genuine land certificates hereafter issued by the State shall he surveyed and returned to the General Land Office within five years after issuance or be forever barred; provided, that all genuine land certificates heretofore or hereafter issued shall be located, surveyed, or patented only upon vacant and unappropriated public domain, and not upon any lan-d titled or equitably owned," etc. Const., art. 14, sec. 2. Section 6 of same article provides for homestead donations both to families and single men.
An argument is based on these provisions of the Constitution against the proposition that by the terms of the Constitution one-half of the public domain not otherwise appropriated by it was appropriated to the school fund in addition to alternate sections thereafter to be granted. The argument is that if such an appropriation was made, until the school lands were segregated it was unlawful for the holder of a valid land claim or an actual settler to locate lands, because his act would be in violation of so much of the Constitution as forbids the location of appropriated lands; and that while he was thus prevented from exercising his right, time would destroy it altogether, without his fault. It is said that the people never intended that such a state of affairs should exist, and that therefore they did not intend to appropriate absolutely one-half the public domain to the school fund by the clause in question. It must be conceded that the people never contemplated that there should be any unreasonable delay in the segregation of the school lands, nor that persons or corporations having valid claims for land should for an unreasonable time be delayed in realizing on them or have them destroyed by lapse of time without their fault. The Legislature, however, had ample power, which it was commanded to-exercise, to prevent the occurrence of any such state of affairs; and when we come to inquire as to the intent of the people as expressed in language found in a constitution, we ought not to look for that from the standpoint of after events which the people had no reason to expect would occur.
It does not necessarily follow because the Constitution requires land certificates to be located only on unappropriated lands, that locations made on lands in which the school fund has an undivided interest would be void except as to that interest. But if for the purposes of this case it be conceded that all locations made on lands so situated are absolutely void, it is not seen that this would better the position of appellant in the matter of construction. The power of the people to appropriate one-half of the public domain to the school fund, and to withhold the balance from location until that should be segregated, can not be questioned. Certificates revived by the Constitution or issued after its adoption certainly took their existence and their owners’ rights in subordination to all the provisions of that instrument. Those holding valid claims when *427the Constitution was adopted, even if they had vested rights which the people could not destroy, would have had no ground for complaint because of the appropriations made by the Constitution, for there was more land than was necessary to satisfy all such claims, as well as all the appropriations. If such delay in segregation continued that certificates would be barred under the terms of the Constitution before they could be located and returned to the General Land Office, this would not annul the Constitution. Segregation would not have been difficult, though it might have involved some expense.
If the Legislature had segregated the school lands in solid bodies it is not seen that there could have been any constitutional objection to that course, for the remaining lands left subject to the claims of all having valid claims for land could not be deemed a “reservation of any part of the public domain for the purpose of satisfying” grants to railway companies, which the Constitution forbade. Const., art. 14, sec. 3.
The Legislature might have required all certificates or claims for land entitled under the general law to be located as headlights were to be located with alternate surveys for the school fund, as it will be hereafter seen was done in reference to homestead donations in one instance by the first Legislature that met after the adoption of the Constitution. Thus in so far would the school fund have received one-half of the public domain.
When certificates required to be surveyed with alternate sections were surveyed the Legislature might have required four sections to be surveyed under each certificate instead of two, one of them to belong to the corporation or person owning the certificate and three to the school fund. This would have secured to the school fund, in so far, all the State claims under both clauses of the section in question, and segregation could have gone on without interruption or hurtful delay. If necessary, the increased expense of this surveying could have been provided for by the State.
When the Legislature had ample power to have thus or otherwise made the segregation, and when the people must be supposed to have intended this to be done, and even went further and declared that “ the Legislature shall pass such laws as may be necessary to carry into efEect the provisions of this Constitution,” what is the argument last noted worth on the matter of construction? That the Legislature may not have done all that ought to have been done, and what the people expected and commanded to be done, can have no bearing on the question of their intent to make or not to make the appropriations claimed by the State to have been made. To ascertain the intention of the people we must look to the language used by them to make their.intent known-—-must look to the subject matter to which the intention relates, and may look to all contemporaneous facts; but the future action of the peopled representatives *428or their failure to act is entitled to but little weight on the question of the people’s intention.
If it be conceded that appropriations to the school fund were made as claimed by the State, and if it be further conceded that for want of segregation of the school lands no laud in the State since the adoption of the Constitution has been in such condition that valid locations and surveys could be made by persons or corporations holding valid land claims, even then it could not be held that the appropriations made by the people were not valid and entitled to full recognition by every department of the government. To hold otherwise1 would be to assert that by failure to enact necessary laws to enable persons fully to enjoy their rights the Legislature could annul a provision of the Constitution. If injuries to legal rights have resulted to individuals or corporations from failures of such character, then it may be that those so injured have claims on the people that in honor and conscience they are bound to recognize; but neither the Constitution nor appropriations legally made through it can be thus annulled. Whether any such rights may possibly exist, it is neither necessary nor proper now to consider.
If under the plain language of the Constitution there could be reasonable doubt as to its true interpretation, it would be proper to look to the contemporaneous construction placed on it by the different departments of the government; and, while believing that there is no reasonable room for doubt in this respect, as an appeal has been made to this source for light, for confirmation of the intent of the people expressed in clear language used in the instrument, a brief examination of the utterances and acts of the several departments since the Constitution was adopted will be made. This will assist us in the further inquiry whether the Legislature has made or attempted to make a complete segregation of the lands appropriated to the school fund by the people, for if that department has made, such a segregation the division ought to be deemed final, however unequal it may be. The first Legislature that met after the adoption of the Constitution passed two acts which have some bearing on the question.
Reciting that there was no law in force giving aid in construction of railroads, the Legislature on August 16, 1876, provided that such companies should receive aid through donations of land out of any of the unappropriated loads of the State, but the law required that “surveys shall be made in alternate sections or half sections, as nearly square as practicable, one section for the company and one for the State for the benefit of the public school fund.” Gen. Laws 1876, p. 153.
By an act approved on the next day all reservations of public domain for the benefit of railroad companies which had lapsed or should thereafter lapse were declared to be severed from the mass of the public domain and to be reserved from location “except the 3,000,000 of acres of land reserved for constructing a new State Capitol and other public buildings, *429and to actual settlers under the pre-emption laws of this State; and 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, and also the fees for recording the field notes of both surveys, and said field notes shall be returned to the General Land Office together.” Gen. Laws 1876, p. 168.
The last act can not be read without recognition of the fact that the Legislature had in mind, when it passed, the provision of the Constitution which in terms appropriated one-half of the public domain to the school fund, recognized its binding force, and in so far intended to comply with it in the enactment of this law, wherein the burden of segregation even was placed on a class usually favored above all others in the grant of lands. It evidences further that the Legislature did not understand that the “one-half of the public domain” appropriated was some indefinite remainder that might exist at some future time after parts not appropriated by the Constitution had been applied to other uses, but that the appropriation was of one-half of the public domain not otherwise appropriated by the Constitution, which it was the duty of the Legislature to segregate and to protect in its entirety. This was the work of a Legislature that began its session on the day the Constitution took effect, and with the will of the people freshly impressed on the minds of its members, who then understood the time had arrived when the appropriation was complete and the duty to segregate a present duty.
The one act evidences an intention to give immediate obedience to the clause of the section in question which appropriated one-half of the public domain to the school fund, and to the other provision which commanded all necessary legislation, while the other manifests an intent to exercise the power left in the hands of the Legislature under the limitations therein placed, and together they negative any understanding on the part of the Legislature that the one clause was but the means for carrying out the other. The Act of August 16, 1876, is the sole act under which railway companies became entitled to receive lands, and if it be conceded that the Legislature may have been of opinion that locations made under it would entitle such companies to one of the sections thus located, then we have the inquiry whether this conclusion could override the Constitution and enable them to acquire lands appropriated to another purpose. That inquiry can be answered in but one way, unless we are prepared to admit that the Legislature has power indirectly to annul the Constitution. Lands appropriated to the school fund not having been segregated when that act was passed, it ought to be conceded that the Legislature was of opinion that without that valid surveys might be made in alternate sections under the act; but this neither affects the question *430.of the extept oí appropriation understood by the Legislature to have been made by the people to the school fund nor impairs the appropriation. The Constitution appropriated 3,000,000 acres of land for the building ■of a new State Capitol. Const., art. 16, sec. 57. By an act approved February 20, 1879, lands within certain counties were reserved for this purpose, and a survey of 3,050,000 acres within the reservation was directed as a preliminary step looking to its use.
It will be seen that this survey embraced 50,000 acres ini excess of the appropriation for building the Capitol; and as to this the Legislature -declared that “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.”
Why this scrupulous care on the part of the Legislature to preserve to •the school fund one-half of the proceeds of the land in excess of the appropriation for building the Capitol F The only answer that can be given is that the Legislature recognized the fact that it was directing the sale of .50,000 acres of land of which one-half then belonged to the school fund—■ to which it was then entitled; and so without reference to how much land might find its way to that fund through alternate sections to be granted under the Act of August 16, 1876.
The same Legislature, five days later, passed a law declaring “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 the children of Texas, without reference to race or color, and the other half for the payment of the State debt.” Why one-half to the school fund? Why not wait until one-half had been acquired through alternate surveys made by railway companies? Why not wait until there was a remainder to which the appropriation of “one-half of the public domain” would attach? The only answer is that the Legislature was of opinion that the appropriation was absolute the moment the Constitution took effect, and extended to one-half of the public domain as it then was, without reference to the appropriation of alternate surveys to be made under grants to corporations.
The same Legislature, by act approved July 14, 1879, which in some respects not now important was subsequently amended, directed the lands in fifty-three counties, as well as the unappropriated lands within the Pacific reservation and separate tracts of unappropriated lands situated in organized counties not containing more than 640 acres, to be withdrawn from location and sold; reserving, however, the lands to be surveyed as before directed for building the State Capitol. The lands thus withdrawn were directed to be sold, and the act declares that “one-half of 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 this State. * * * *431The balance of the net proceeds of sales under the provisions of this act shall be applied * * * to the payment and extinguishment of the bonded debt of the State of Texas, as the same becomes due and payable.” Gen. Laws Spec-. Sess. 1879, p. 48. This act was repealed by an act approved January 22, 1883, in so far as sales were authorized, but the lands unsold were held in reservation for the purposes named in the former act. Why so persistently secure one-half of the lands within these reservations, or their proceeds, to the school fund, and at the same time forbid the acquisition of lands within that territory for that fund or for corporations through alternate surveys? The answer is evident. The Legislature understood that the Constitution appropriated one-half of the public domain to the school fund without reference to what it might receive in addition through alternate surveys, and in good faith intended to carry out the will of the people through these laws within the reserved territory.
By an act approved April 9, 1881, the Legislature donated to persons permanently disabled by wounds received while in the service of this State or the Confederate States 1280 acres of land each, but it provided that “ the locator shall also locate a like amount of land for the benefit of the permanent school fund before either shall be patented.” Gen. Laws, p. 122. This is in harmony with the laws before referred to, and manifests the same purpose and understanding of the meaning of the Constitution by the Legislature.
By an act approved February 23, 1883 (Gen. Laws, p. 15), the Legislature, recognizing the right of the school fund to one-half of the proceeds of the sales of land made under the Act of July 14, 1879, and amendment thereto, and further recognizing the debt of the State to the school fund under the Act of November 12, 1866, directed the latter, as well as other recognized indebtedness of the State to the school fund, to be returned to that fund from the half of the proceeds of sale that did not belong to the school fund under the terms of the law directing the lands to be sold.
By an act approved April 10, 1883 (Gen. Laws, p. 71), the Legislature, after again recognizing the right of the school fund to one-half of the proceeds of sale made under the Act of July 14, 1879, and the payment of the indebtedness of the State to the school fund and to the University out of the other half, declared that “the remainder of said land, not to exceed 2,000,000 acres, contained in the counties and territory specially mentioned in said acts, or the proceeds thereof, set aside by said acts for the payment of the public debt, heretofore or hereafter to be received by the State, shall one-half thereof constitute a permanent endowment fund for the University of Texas and its branches, including the branch for the instruction of colored youths, and one-half shall constitute a permanent endowment fund for the common free schools of this State.”
Thus we see the State kept up this equal division between itself and the *432school fund, and when it donated to the University 1,000,000 acres of land it recognized the right of the school fund to a like quantity. Is not the reason for this too obvious?
Under these acts the absolute right of the school fund to one-half of the public domain as it existed when or until the Constitution took effect, without reference to alternate surveys, is recognized; and as in all these cases a like quantity of land secured to that fund was applied to some other purpose, there can be no pretense that in this distribution the fund received, either in quantity or value, more than one-half of that part nf the public domain to which the acts have application. Their application is not to the entire public domain subject to the clauses of the Constitution in question, of which it declares the fund shall have one-half, and also alternate sections through grants made to corporations..
The only other lands received by the funds under the clauses in question came through alternate surveys, and there can be no claim that in this manner the fund has received either in quantity'or value more than have the corporations. That a segregation of lands for the school fund according to value, except as this may be supposed to be reached through contiguous grants which may be presumed to be of equal value, was ever contemplated, all legislation bearing on the question refutes; and no single act can be found indicating the intention of the Legislature otherwise to do this, or a belief that it had been done. This strips the case of any pretense that the Legislature has by values or quantities attempted to segregate all the land to which the school fund is entitled under the third clause of the section in question. Throughout all the legislation since the adoption of the present Constitution there is but one act in which the rule recognized in the acts referred to has not been observed.
An act approved April 26, 1879 (G-en. Laws, p. 175), granted 640 acres of land to indigent veterans engaged in the struggle for Texas independence, and this was increased to 1280 acres by an amendment approved March 15, 1881. These acts authorized the certificates to be issued under them to be located as were headright certificates, and did not require each person to locate and have surveyed a like quantity for the school fund. These acts may not be in harmony with the others referred to in this respect; but if the question had to be decided on the preponderance of evidence furnished by acts of the Legislature, can there be any question where the great weight of that is to be found? Contemporaneous construction evidenced by acts of the Legislature is practically, with this single exception if it may be so termed, in favor of giving effect to the clear and unambiguous words found in the Constitutions In fact, it can not be claimed that facts exist which entitle appellant to invoke the maxim “communis errorfacit jus.”
It is insisted that the several executives of the State who have served the people since the adoption of the present Constitution have united in *433construing the Constitution as appellant claims it should be. These distinguished men ought not to be subjected to such a charge unless those making it come prepared to sustain it. During the first two years after the Constitution was adopted the State had two Governors, one of whom soon after his inauguration was elected to the United States Senate. Uo legislation during his term of service as Governor has any bearing on the question involved in this case, and every communication made by him to the Legislature may be searched in vain for a single utterance to give color to the charge made against him.
During the term of his successor the acts of August 16, 1876, and of August 17,1876, above referred to, were passed, and further comment on them is unnecessary. Besides these none others were passed which could have the remotest bearing on the question; but that he approved them is evidenced by his official acts.
With the vast amount of legislation necessary to adjust the laws to the requirements of the Constitution then first put in operation, it was not to be expected that all proper laws would be at once passed, nor that the executive would recommend all such laws, and failure in these respects ought not to be made a ground for claim that he placed on the Constitution a construction not evidenced by some affirmative act. Silence or nonaction can not be deemed evidence of construction unless a state of facts be shown in which this amounts .to acquiesence when action was necessary to preserve right.
Before the Sixteenth Legislature met the people had called to the executive office a citizen throughly familiar from long residence and public service with the affairs of the State, with its laws and institutions, devoted to the interest of the people, and peculiarly well fitted by learning as well as a long, most honorable, and efficient judicial career to construe the Constitution.
The acts passed during his term of office have more bearing on the question before us than have all others passed since the Constitution was adopted. These acts, before noticed, received his approval, and with the single exception of the acts known as the “veteran acts” not one of them, in whole or in part, is susceptible of any other construction than one in entire harmony with the plain import of the language used in the Constitution and with the construction placed on that instrument by the very able judge who tried this cause. It is most probably true that it was expected to supplement the “veteran acts” in due time by such legislation as was necessary to give full effect to them without prejudice to any right secured by the Constitution; but that in the hurried grasping for lands before that was accomplished that state of affairs was found to exist which required the passage of the Act of April 22,1882, withdrawing1 from corporations the further right to donations in aid of internal improvements; and that, even then, it was not known to what extent they had assumed *434the right to appropriate lands. On the immediate question before us that officer in his inaugural address used the following language:
“ There are other obligations imposed upon the government of the State by the Constitution of equally as high a nature, which are to devote one-half of all the public lands to fheptiblic school fund, and 1,000,000 of acres to the University fund, and 3,000,000 of acres to the building of a capítol of the State. Under the present policy of procrastination these obligations will not be met, and the people will have to be taxed to perform them/'’ Inaugural Address of Gov. O. M. Rpberts, Jan. 21,-1879, House Jour. 1879, p. 112.
Here the appropriation of one-half of all public lands to the school fund is placed on the same footing as the appropriations made for the University and for building the new Capitol, all of which are recognized as resting on the Constitution. While the alternate sections out of grants to be made to railroads or other corporations after the adoption of the Constitution were appropriated to the school fund by the Constitution, they were dependent on a contingency with the very happening of which the land thus to be acquired would be segregated. That appropriation would take care of itself. It could not be expected that in an inaugural address more than an outline would be given, and that here given is in strict conformity to the Constitution.
In a message to the Legislature soon afterwards the following language was used:
“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 annnall3r, 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 land 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 Jour., p. 342.
While, if the record before us is correct, the estimate of school lands at that time was too small, we have here an unequivocal declaration that the Constitution appropriated one-half of the public domain for the permanent school fund. There is nothing in these official utterances of this executive, necessarily general in their nature, from which it can be fairly claimed that he construed the Constitution as appellant would have it. We find no act of either of the distinguished men who have succeeded him which evidences that they have construed the Constitution as appellant contends it should be, unless we are to presume that they have continuously issued patents on surveys made since the Constitution was adopted which amounts to a recognition of such a construction. How far this has been done we are not advised; nor does it appear that a single patent has been *435so issued which showed on its face that it was not under a location made before the adoption of the Constitution.
In the judicial department not a single utterance was heard in any court, prior to the decision of this in this court, which countenances the construction now put upon the Constitution.
In Fannin County v. Riddle, 51 Texas, 368, and in Day Company v. The State, 68 Texas, 526, it was, in effect, held without dissent that the language of the Constitution was to be given its ordinary meaning. While in these cases the question now before us was not directly involved, in the case last named it was indirectly involved, and a consideration of the several clauses of the section of the Constitution in question became necessary.
It has been held that the courts in construing a Constitution may look in doubtful cases to the proceedings of the convention that framed it; and so upon the theory that the people may be supposed to have adopted it with the same construction placed on it by their delegates. This at most is a class of contemporaneous construction, and some reference will be made to the proceedings of the convention that framed the present Constitution.
The second section of article 7 now found in the Constitution is literally as reported to the convention by the committee appointed to draft that article. The fourth and fifth sections are the same in all material respects. Jour, of Con., 517.
An amendment to the third clause of the section was offered, which was to strike out the word “half” and insert the word “all” in its place, which would have made that clause read “ all of the public domain of the State.” A substitute for that amendment was offered which consisted of a proposition to strike out the words “ one-half of the public domain of the State.” Jour., 612, 616.
Both of these amendments were defeated, but they show that the mind of the convention was called sharply to this clause; and, in fact, the journals show that the only serious contest over any part of the article that has any possible bearing on the question involved in this case was over the third clause of section 2. Had the amendment passed without any change being made in the preceding clause there would have been a conflict between the two which it would have been necessary to reconcile. Had the substitute for the amendment offered been adopted, the third clause would have been entirely stricken out, and there would have been no provision for the addition of lands to the school fund otherwise than through grants thereafter to be made in alternate sections as provided by the last branch of the second clause. The Constitution would then have meant what appellant contends it now does, with the second and third clauses remaining entire.
After attention was thus sharply drawn to the third clause and its word*436ing, it is not to be understood that the words were not intended to have their ordinary meaning, and there can be no reasonable doubt as to the interpretation put upon the clause by the convention, nor belief that the words were used with any hidden sense.
The journal teems with evidence that the real contest was not whether the school fund should have one-half of the public domain not otherwise appropriated by the Constitution, and in addition to this alternates from grants thereafter to be made to corporations, but was whether the Legislature should not be prohibited to make any grants to coi-porations to aid in improvements. Jour., pp. 342, 616, 621, 628.
These citations, and others, show that all propositions to place in the Constitution a provision granting lands to railway companies, or directing the Legislature to do so, although repeatedly offered, were defeated; and the compromise was that no clause requiring such grants to be made or denying the Legislature the power to make them was inserted. That matter was left to the discretion of future Legislatures. Ido such discretion was left to the Legislature in regard to the school fund. For that the people unhesitatingly made the appropriation, as appears in the Constitution itself, for the express purpose of placing the fund beyond legislative interference. As a compromise, with evident reluctance power was left in the Legislature to make grants to railway companies out of the unappropriated land, but even this power was placed under more than one restriction. Aid to immigration was expressly prohibited, except as this might be extended by homestead donations.
In the light of these facts, ought this court to contrast these purposes and therefrom draw inferences contrary to the plain import of the language used?
It is not proposed to consider any question of partition, or what has been termed the adjustment of equities, further than to say:
1. If the Constitution means what appellant claims, the State has no right on which to base partition, and neither party equities to adj ust.
2. If it means what the State contends, then appellant has no equity to adjust or right to be secured which does not attach to the land in controversy and may be fully adjusted in this suit.
3. If the State’s theory is correct, appellant certainly has not acquired any right joint or several in any land except to one-half of each of the sections in controversy, and there can be no claim that it has equities to adjust or partition to make on account of its failure to acquire right to land other than that in controversy, by reason of the fact that it would or might have acquired more land had the school lands been segregated.
4. 3sTo right can be acquired through partition which did not exist before; but through partition that right can be made to attach in severalty to a particular part of that before partition held in common.
5. Whatever right appellant has must be realized in this action, and *437through the lands in controversy, without reference to any other lands, simply because it has no right in common or severalty, legal or equitable, in or to other lands.
All the public domain except 1,000,000 acres is shown to have been appropriated, and individuals and other corporations could not be compelled to surrender land acquired by them to make up to appellant the quantity of land it might possibly have acquired had the school' lands been segregated; and at last, if it received the quantity of land now claimed by it, would have to do so out of lands appropriated to the school" fund under the clause appropriating one-half the public domain, or the school fund would have to surrender some of its alternate sections.
•The error of the proposition that appellant has equities to be adjusted, through partition or otherwise, is believed to result from a misapprehension as to the right it has obtained.
Reference to the quantity of public domain as it existed when or until the Constitution was adopted, and the disposition made of it, will show the practical operation of the rule insisted upon by appellant.
The statement will be taken from the record in this case, which shows that at date mentioned there were 71,961,277 acres of land, all of which •except 1,000,.000 acres had been disposed of when this cause was tried. Out of that was taken 4,000,000 acres for the erection of the Capitol and endowment of the University, which left 67,961,277 acres, to the one-half of which it must be conceded the school fund was entitled if the appropriation of “one-half of the public domain of the State” is to be given effect in accordance with the plain import of the language. That gives 33,980,610 acres; but all the land received by the school fund, including that sold, of which the proceeds were carried to its credit, amounts to only 27,871,552 acres.
Thus it will be seen that the school fund has received less than one-half of the public domain then existing and not otherwise appropriated by the Constitution, and there is no land left from which the residue can be made up, even if the fund was entitled only to one-half, if the claims of others who have assumed to appropriate lands are to be recognized in their entirety. This, however, would only leave a deficiency of 6,109,058 acres, which might be diminished 1,000,000 if that not appropriated when this cause was tried was made a part of the fund.
For corporations under alternate certificates 41,934,398 acres have been surveyed, and of this the school fund has received one-half, or 20,967,199 acres, which is included in the 27,871,552 acres before referred to, and corporations hold a like quantity.
If it be true that by the appropriation of “ one-half of the public domain of the State ” the school fund became thus entitled, then it is clear that in the alternate surveys received the fund has only received what it was entitled to in so far without reference to the appropriation made by *438the last part of the preceding clause, for it would have been entitled to so much had no alternate surveys been made.
If land in so far was not subject to appropriation by corporations, it necessarily follows that the fund is entitled to one-half of each section of land that corporations holding alternate certificates have assumed to appropriate to themselves, for in no other manner can effect be given to both clauses of the Constitution on which the rights of the parties in this case-depend.
The matter then would stand thus: Under the clause appropriating one-half of the public domain, the fund is entitled to 33,980,610 acres, and under the clause appropriating alternates from grants to be made to corporations, which is in effect but a declaration that for every grant made for a corporation a like quantity should go to the school fund, that fund would be entitled to 10,483,589 acres more, making an aggregate of 44,-464,209 acres. To meet this claim the fund has received only 27,871,552 acres, which leaves a deficiency of 16,592,267.
If, as believed, this deficiency exists, it can not be restored in manner so equitable as by enforcement of the spirit of the Constitution, which is believed to be in strict accordance with the letter.
Compel every person or corporation who has received two acres of land when only entitled to receive one to restore one, and the question will be settled without jar or confusion in accordance with the law. It is believed that any other method of enforcement of the right would not only operate great hardship in individual cases, but be in itself illegal.
Looking to the matter solely from the standpoint of expediency, the conclusion might be reached that the public good would be subserved if the State were to surrender its right in order to quiet titles and avoid hardship in many cases; but questions of that character must be addressed to the people, who alone have power to determine what is expedient and to pursue the course their own judgments and wills may dictate. Those charged with the enforcement of the laws have no discretion upon such a question, and courts can look to no such consideration in the determination of causes, but must as best they can ascertain and declare the law applicable to the facts presented and award such relief as these warrant.
Believing that the proper disposition of this cause was made by the court below, I am unable to concur in the disposition here made of it. ’ r