This suit was instituted by Midland County in the form of an action of trespass to try title to recover the four leagues of Midland County school land, situated in Cochran and Hockley Counties. The defendants answered by a general denial and pleas of not guilty. The case was tried by the court without a jury and judgment entered on May 5, 1908, that plaintiff, Midland County, take nothing and pay all costs; and from this judgment, said plaintiff has duly prosecuted this writ of error.
The court filed his conclusions of fact and law, from which it appears that prior to all dates herein specified, the lands in controversy were granted to Midland County for its permanent free school fund; that on or about the 14th day of May, 1895, The Commissioners' Court of Midland County, by an order duly made and entered upon the minutes of the court, accepted, as per contract entered upon the minutes of the court, a proposition by John Scharbauer for the lease of said lands for the term of twenty years, at the rental price of four cents per acre for the first year, and four and one-half cents per acre for each succeeding year thereafter, and granted to said Scharbauer the option to purchase said land at any time during the life of said lease, at the price of one dollar per acre, payable twenty years from the date of the exercise of said option with interest at the rate of four percent per annum, payable annually in advance; that on the 8th of August, 1898, the Commissioners' Court of Midland County entered an order on the minutes of said court granting to John Scharbauer the privilege of subletting the lands embraced in the lease, but providing *Page 330 that he should not be released from his liability on his contract for the payments of the rentals; that on the 13th of April, 1900, John Scharbauer, by an instrument of writing duly executed and acknowledged, conveyed to C. C. Slaughter all his right, title and interest in the land embraced in the lease. C. C. Slaughter afterwards conveyed to the defendant in error C. C. Slaughter Cattle Company, which was the real party in interest below. It further appears from the findings that since the assignment to Slaughter, the rents stipulated for in the contract were regularly paid every year, as evidenced by the receipts of the county treasurer, until June, 1907, upon which date a legal tender of the amount of the annual rent was made by C. C. Slaughter to the county treasurer of Midland County, but which tender the treasurer refused, being so instructed by the Commissioners' Court. The tender was continued by appellee's offer in open court to pay all rentals due, but such offer was also refused. There are some other findings, but none that we deem it material to here state. The court concluded, from the facts found, that the lease was still in force and that the defendants were lawfully in possession of the land, and judgment was accordingly rendered in defendants in error's favor.
Certified copies of the various contracts and orders referred to, attested by the signature and seal of the County Court, were read in evidence, but to which plaintiff in error objected because they had not been authenticated by the seal of the Commissioners' Court, instead of that of the County Court, as required by article 1556 of the Revised Statutes, and the objections are brought before us by a number of assignments which, in view of the conclusions we have reached, we deem unnecessary to determine.
Section 6, article vii of the State Constitution, so far as applicable, provides that: "All lands heretofore or hereafter granted to the several counties of this State 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, and no adverse possession or limitation shall ever be available against the title of any county. Each county may sell or dispose of its lands in whole or in part, in manner to be provided by the Commissioners' Court of the county. Actual settlers residing on said lands shall be protected in the prior right of purchasing the same to the extent of their settlement, not to exceed one hundred and sixty acres, at the price fixed by said court, which price shall not include the value of existing improvements made thereon, by such settlers. Said lands, and the proceeds thereof when sold, shall be held by said counties alone as a trust for the benefit of public schools therein; said proceeds to be invested in bonds of the United States, the State of Texas, or counties in said State, or in such other securities and under such restrictions as may be prescribed by law; and the counties shall be responsible for all investments; the interest due thereon, and other revenue except the principal, shall be available fund."
Other than this, we have been unable to find any statute or decision of our State that affords any clear guide. The power given to counties by this constitutional provision, however, to "sell or dispose of its lands in whole or in part," in the absence of any limitation, (and we find none), doubtless authorizes counties to lease school lands granted *Page 331 to them for public free school purposes, for at least a reasonable period; and in view of the fact that plaintiff in error did not, in this action, specifically seek to rescind or cancel the lease to John Scharbauer as unreasonable, we perhaps, are not authorized to hold that the lease for the term of twenty years is void on this ground alone, and unless the lease contract is void, we think the plaintiff in error was properly denied a recovery in this action. In this connection, however, it is perhaps not unworthy of notice that at no period in the history of our legislation, has the Legislature authorized the lease of the State public free school lands for a longer term than ten years.
But if it be conceded that, under the circumstances existing at the time of the execution of the lease under consideration, twenty years was not unreasonable, and if it be further conceded that at the time of the execution of the lease, one dollar per acre was the reasonable value of the land, we nevertheless think that the Commissioners' Court was without power, as attempted, to bind the county and some twenty other Commissioners' Courts that might succeed them. The long term of the lease is not the only feature that is to be considered. It specifically attempts to grant the right to John Scharbauer at any time during the continuance of the term, regardless of change in conditions or values, the exclusive right to purchase the land at one dollar per acre, payable twenty years from the date of the exercise of the option, with interest at the rate of four percent per annum, payable annually in advance. In so doing, we think the Commissioners' Court, a mere agent of the county for the execution of the trust reposed by the Constitution, exceeded their power. By the terms of the written proposition of Scharbauer, which is made a part of the court's findings and which was accepted by the Commissioners' Court and entered upon its minutes, such option was made the condition upon which Scharbauer's offer to lease was made. In our opinion, we have no authority to reject this feature of the contract and maintain the validity of the remainder. The contract is entire and the vice taints the whole. If the contract was a valid one, John Scharbauer immediately, before the twenty-year term had expired, might purchase the land at one dollar per acre and extend the time of payment therefor, at a low rate of interest, for a further period of twenty years. We believe that any such preference right was void on the ground of public policy, and that the lease as a whole, was so intimately connected therewith and dependent thereon as that the entire contract was a nullity.
While the Constitution itself declares that the lands granted to counties for educational purposes shall become the property of the counties, the grant is made just as plainly "alone as a trust for the benefit of public schools." The county, then, and its Commissioners' Court, which is but the acting agent, is but a trustee and subject, as other trustees, to the restraining power of the courts to prevent a diversion or waste of the trust fund. It must follow, too, as in the ease of other trustees, that in the sale or disposition of the county school lands, the county or Commissioners' Court can exercise only such authority as has been expressly, or by necessary implication, granted. The full extent of this authority is to "sell or dispose of" the lands. The manner of doing this only is left to the discretion of the Commissioners' Court, *Page 332 and we think, in view of the trust, it may well be doubted whether the power to "sell or dispose of" the land includes the power to give, for any period of time, an option or preference right to any one other than an actual settler, to purchase the same. An option seems scarcely to be either a sale or a disposition within the meaning of the Constitution. It is a mere privilege. A contract which only binds the maker.
But without stopping to cite definitions or to draw distinctions between the Commissioners' Court and agents generally in order to give force to the suggestion, and if it be conceded that the power conferred is broad enough to authorize the Commissioners' Court to give an option, it certainly must be a reasonable one. Nothing beyond this can be supported by any construction, and we think the option under consideration, because of the facts already stated, is unreasonable as a matter of law.
In the case of Jay County v. Taylor, reported in 7 L. R. A. 160, the Supreme Court of Indiana held that a contract by a board of County Commissioners which attempted to employ a legal adviser for a period extending beyond the time of incumbency of the board, was against pubic policy and void. The Illinois Supreme Court, in the case of Millikin v. Edgar County, reported in 18 L. R. A. 447, held that a contract for the employment of a keeper of a county poor house for three years was not within the power of a Board of Supervisors, each of whom is elected for one year only, although the statute gave them power to appoint such keeper without any express limitation as to the time. The court said: "If the board had the power to enter into a binding contract of this character for three years, no reason is perceived why it might not make a contract for five or even ten years, and if this could be done, the hands of succeeding boards would be tied — their powers taken from them. If this important power — the supervision of a poor farm and the care of the unfortunate — may be so far delegated as was attempted in this case, the county might be deprived in a great measure, of one of the most important affairs entrusted to its supervision."
These remarks, we think, have force in the present case. The duty of the county was that of a trustee, and the duty of its agent, the Commissioners' Court, was to see that the trust was faithfully executed, and it seems perfectly unreasonable that one Commissioners' Court, which, under our law can not, without re-election, continue longer than two years, shall be held to have the power to bind succeeding Commissioners' Courts for a period of forty years.
It was shown that, after the execution of the contract and after its assignment to C. C. Slaughter and the Slaughter Cattle Company, the prescribed rents for a number of years had been received by the treasurer of Midland County, with the knowledge and consent of the Commissioners. But we do not think a contract originally void for want of power of execution is thereby vitalized. Neither the county treasurer nor the Commissioners' Court could thus, indirectly, by way of ratification, exercise a greater power than might have been exercised in the first instance, and directly.
We conclude, as before stated, that the contract of Scharbauer was void as against public policy, and the appellees in this case, having *Page 333 full notice thereof, can maintain no right thereon. It follows that upon the court's findings of fact and the undisputed evidence, Midland County was entitled to recover. The judgment, therefore, will be reversed and here rendered in favor of plaintiff in error.
Reversed and rendered.