Ross v. Terrell

GAINES, Chief Justice. This suit is brought in this court to compel the Commissioner of the General Land Office to accept relator as a purchaser of a half-section of school land in Sutton County, for which he had made application. It appears from the averments of the petition that, since the passage of the School Land Act of 1901, and before April 15, 1905, the time at which the late act upon the same subject went into effect, the relator had purchased from the state four sections of school land in Sutton County;-that on the 4th day of May, 1903, he leased from the state the half-section in controversy for the term of five years, and that the lease is still in good standing. It further appears that, that half-section lies within a radius of five miles from his home section, originally purchased; that some time after the Act of 190S went into effect, he notified the Commissioner of his desire, to purchase the half-section, and that thereupon the Commissioner caused the same to be inspected, classified and appraised at $1.25 per acre; and that the relator then applied to purchase the tract, complying in all respects with the requirements of the statute; but the allegations of the petition are not denied; but the respondent in his answer explains that his reason for rejecting the application was that after the land had been inspected and appraised, he discovered that the relator had already bought four sections of land under the law of 1901. The question then is, having purchased four sections under the previous law (the full amount then allowed), was relator entitled to purchase additional lands under the Act of 1905? That act authorized a sale of as many as eight sections in Sutton County, and certain other counties therein named. The provision under which the relator claims his right to purchase is found in section 6 of the act in relation to the sale and lease of the public, free school and asylum lands, approved March 15, 1905. So much of that section as bears upon the question involved in this controversy . reads as follows: “In the counties of Bandera, Brewster, Crockett, El Paso, Jeff Davis, Loving, Pecos, Presidio, Sutton and -Val Verde, one who has not purchased one complement of land under this act or former law prior to the filing of his application or applications may buy not to exceed eight sections of six hundred and forty acres each, more or less, or such part thereof as will complete his complement under this act, including the former purchase since April 19, 1901” (Laws 1905, p. 163). In this connection we also copy the following from section 5 of the act: “An original lessee, or the assignee of an entire lease out of which no sale of one complement of land has been made under this act, may purchase out of his lease at any time the quantity of land allowed to one purchaser under the provisions of this act. . . . One desiring to buy land as aforesaid shall first give written notice to the Commissioner specifying the land he wishes to buy, whereupon the Commissioner shall make or cause to be made an inspection of the land, and appraise same at its reasonable market *505 value, and advise the one desiring to buy, and also the proper county clerk, of the value placed thereon. After such valuation and notice given and filed in the proper county clerk’s office, the land shall be subject to sale to the persons aforesaid only, and under the terms of this act; provided the applicant has not heretofore, or prior to the filing of his application or applications, purchased one complement of land as provided by this or former laws.” The provision quoted from section 5, as we think, throws but little light upon the question before us. That provision announces a general rule, applicable to the lands in all counties of the state except those mentioned in section 6. Under the general rule, as it existed before and after the passage of the act under consideration, a purchaser was limited to four sections. The purpose of section 5 was to define the rights of lessees and of their assignees. ■ So also the purpose of the limitation expressed by the phrase, “provided, that the applicant has not heretofore, or prior to the filing of his application or applications, purchased one complement of land as provided by this or former laws,” was merely to hedge against any construction that would permit an applicant to acquire by purchase more than four sections of land, save in the excepted counties. The relator’s rights in this case depend upon the construction of the language quoted from section 6. That language is somewhat obscure; but we think the meaning of the words is expressed in this paraphrase: In the counties of Bandera, etc., one who has not purchased eight sections of land under this act, or under this act and the former laws, may buy that quantity, or so much thereof, as will complete his complement under this act, including any former purchase since April 19, 1901. We think the word “complement,” as used in the latter part of the provision quoted, clearly means eight sections, and by a familiar rule of construction it should be construed in the same sense as used in the previous part, unless there be other expressions showing a different intent. It is true that the words, “has not purchased one complement under this act or former law,” implies that a complement was meant that could have been purchased under a former law. But it seems to us that the reason which impelled the Legislature to make an exception as to the counties named, and, as to them, to depart from the rule then existing of limiting the amount of school lands to be bought by one purchaser to four sections, and to allow a purchase of eight sections in those counties, was that, on account of the inferior quality of the lands therein situate, and the climatic conditions of the territory, as many as eight sections might be necessary to the comfortable support of a family of settlers. If such be the reason of the law, we do not see why one should be denied the privilege of buying eight sections in all, merely because he had bought four sections under the previous laws. Besides, the construction insisted upon on behalf of the respondent leads to a manifest incongruity. It would preclude one who had bought four sections from purchasing any additional ‘lands whatever; but would permit another purchaser, who had bought three and one-half sections under a former law, to buy four and one-half *506 additional sections, so as to make up his complement of eight sections allowed by the new statute. Again, in the case of the United States v. Fisk, 3 Wall., 447, the court say: “In the construction of statutes, it is the duty of the court to ascertain the clear intention of the Legislature. In order to do this, courts are often compelled to construe 'or’ as meaning 'and/ and again 'and’ as meaning 'or.’ ” Applying this rule, to which numerous other cases may be cited, we think we should read the words “under this act or former law” as if they read, “under this act and former law.” When so read, the provision in question becomes reasonable and consistent, and expresses what we think was the true intention of the Legislature in enacting it. For these reasons, the mandamus as prayed for is awarded. Mandamus granted.