shall receive no pay for holding more than one special term of the court per month. By Article 6901 as amended by the Acts of 1913 (Acts 33d Leg. c. 123 [Vernon's Sayles' Ann. Civ. St. 1914, art. 6901]), they are constituted supervisors of the public roads of their counties, and their compensation for services as such is fixed at three dollars per day for the time actually employed in those duties, limited to not more than ten days in one month. By Section 5 of this special act (Loc. & Sp. Acts 33d Leg. c. 77) these general laws are declared as superseded. It says that the annual salary of $2,400.00 for each commissioner of Bexar County there provided shall be “in lieu of all other fees and per diem of all kinds now payable or that may hereafter be allowed by general law." This simply means that for their general services their compensation shall be no longer as limited by the general law, but shall be as fixed by this law. The salary thus provided for, in other words, was intended to cover, not merely their services having to do with the public roads as required by the act, but all services required of them by law. Just what relation a local law making provision for a county road system can properly have to the subject of the general compensation of county commissioners, it is difficult to perceive. No doubt the Legislature, in the passage of local road laws, may, within proper bounds, provide compensation for extra services to be performed by those officials where uncontrolled by general laws and required by such local laws and directly connected with the maintenance of the public roads. We are not called upon to determine that question here. But under the guise of

such a law it has no authority to legislate upon the subject of their general compensation or to alter the general laws governing it. We think that is what this act plainly attempted to do. We therefore hold the section in question to be unconstitutional.

As indicating the broad scope of this act and throwing light upon the purpose of section 5, though essentially a local law and denominated as an act making provision for a road system for Bexar County, it attempts, in another section, to fix the ex-officio compensation of the county judge at not less than $2,500.00.

The judgments of the Court of Civil Appeals and the District Court are reversed and the cause remanded to the District Court.

ing that school lands situated in Jeff Davis county may be sold in quantities not to exceed eight sections of 640 acres cach, more or less to one person, and in whole tracts only, and without condition of settlement and residence, the quantum of land which may be purchased by a single individual is determined by the number of sections regardless of acreage.

2. PUBLIC LANDS 54(3)-RIGHT TO PUR

CHASE CASES OF COMPLEMENT. Rev. St. 1911, art. 5420, provides that the Commissioner of the General Land office is prohibited from selling to the same party more than one complement of four or eight sections of land, according to the county; and all applications to purchase land shall also disclose the prior lands purchased by the applicant from the state, if any, and the residence of therefrom, or from the records in the land ofthe applicant at said time; and, if it appear fice, that said applicant has already purchased land aggregating four or eight sections, according to county, since April 19, 1901, his applicaapply to sales made to a purchaser and aftertion shall be rejected; provided, this shall not wards canceled as invalid for some reason other than abandonment, and where the purchaser § 6, similarly requires prior purchases to be himself was not at fault. Acts 29th Leg. c. 103, charged against an intending purchaser, as does also Acts 30th Leg. (1st Called Sess.) c. 20, § 6. Acts 34th Leg. c. 150, § 1 (Vernon's Ann. Civ. St. Supp. 1918, art. 5420a), does not specifically make such requirement, but declares that "the * ** * land shall be sold under the terms, conditions, limitations and regulations * now provided by law, except as changed herein." Held, that an intending purchaser of lands unIder the act of 1915 is chargeable with all lands purchased by him under the prior acts in the same county.

*

HAWKINS, J. Section 1330, certificate 3910, Gulf, Colorado & Santa Fé Railway Company, containing only 320 acres of public free school land, lying in Jeff Davis county, classified as mineral and grazing land and appraised at $1.50 per acre, came on the market on January 1, 1916, for sale by the state, and was awarded by the Commissioner of the General Land Office to the corespondent, W. T. Jones, on his bid of $2.05 per acre, which was the highest bid for said land. The next highest bid therefor, $1.75 per acre, was that of relator, George Ford. Prior to the filing of his application to purchase said land, and even prior to the act approved April 5, 1915 (Gen. L. 1915, c. 150, p. 256), under which said award of this section 1330 was made, but after April 19, 1901, Jones had purchased from the state, and, on January 1, 1916, held,

FORD v. ROBISON, Commissioner of General Land Office, et al. (No. 2964.) (Supreme Court of Texas. March 13, 1918.) 1. PUBLIC LANDS 54(3)-RIGHT TO PURCHASE-CASES OF COMPLEMENT. Under Acts 34th Leg. c. 150, § 3 (Vernon's in good standing on the books of the General Ann. Civ. St. Supp. 1918, art. 5420c), provid- Land Office, various other tracts of public

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

free school lands lying in Jeff Davis county, a full "complement," Jones had become and and described as follows:

one applicant. Whatever force lies in the suggested distinction seems to us to operate in the opposite direction, strengthening the idea that the conclusion there announced should be applied to the facts of this case. The same counsel say, also:

more and no less; and any other construc- act of 1901, page 292 et seq., which expressly tion of the statute is precluded by the addi- limited to just "four sections" rather than to tion of the words "and in whole tracts only." | four sections "of 640 acres each more or less," The positive inhibition against making any the quantity of land which might be sold to sale except "in whole tracts" unquestionably prevents the Commissioner from carving out of an entire section containing more than 640 acres, and acreage which, when added to seven other sections aggregating more than 4480 acres, would make up 8 x 640 = 5120 acres. Moreover, if acreage is to control, what reason was there for saying anything about sections? We can see none. Historically, also, the word "section" as used in said section 3 of said act of 1915 has the meaning which we here attribute to it. That is made manifest by reference to previous decisions of this

"The question is, Did the Legislature mean by four sections four original surveys, or did they mean lands amounting in quantity to four sections of 640 acres each, or to 2,560 acres? In the primary and broad signification of the term, any division of a thing is a section. But probably by reason of the fact that the United States has surveyed its lands in sections of a square mile each, it has become customary to speak of such a survey as a section. But any survey may be appropriately designated as a section. When in the provision last quoted the Legislature uses the words 'four sections consisting of six hundred and forty acres, more or less,' they meant surveys, that is, to include surveys intended and purporting to contain the quantity named, though they might contain more, and surveys of less than that quantity. In other words, the amount of land the settler was entitled to purchase was to be determined by the number of surveys, and not by the quantity in acres. *** It might well have been deemed the more practicable and convenient rule to grant the right to purchase three original surveys rather than the quantity of 1,920 acres, when such surveys contained less than that quantity. * The survey for which the relator applied, and which contained only 457 acres, and a fraction was known in the land office as 'section 65,' and was so described in his application."

Counsel for the Commissioner frankly concede that their contention on this point, in the case at bar, "appears to be in conflict" with that decision, but suggest that the two cases may be distinguished, in that, they say, the statute there actually before the

"We think it clear, however, that the portion of article 4218f discussed by the court in the Hazelwood-Rogan Case and above quoted, had 1901 above referred to fixing the quantity at been superseded by that portion of the act of four sections of land.""

The court seems to have entertained the

opposite view, saying:

"The right to purchase additional lands is expressly conferred by article 4218f of the Revised Statutes as amended by the act of 1897 (Laws 1897, p. 184), and that article, as to its main provisions, is not affected by the act of 1901.""

In any event the reasoning of this court in that case is, we think, conclusive upon the question as it arises in the case at bar. If

"section" as used in section 3 of said act of 1901, when not coupled with any reference to the amount of the contained acreage, is applicable to a tract of less than 640 acres, as was held in the Hazelwood Case, surely "section" as used in section 3 of said Act of 1915, when immediately followed, as it is, by the words "of 640 acres each, more or less, to one person, and in whole tracts only," is

fairly applicable to this section 842, although

it contains less than 640 acres.

In this connection Ross v. Terrell, 99 Tex. 502, 90 S. W. 1093, has been cited in behalf of the Commissioner as applying a liberal rule of construction; but it is not claimed that the present issue was in that case. There, in construing sections 5 and 6 of the act of April 15, 1905, giving to any settler. in certain counties, who had not "purchased one complement of land under this or former law," a right to purchase "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), this court said:

"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."

Accordingly the court there held that the expression "under this act or former law" should be read "under this act and former law." But the issue there was as to how many sections rather than as to how many acres one applicant might purchase. A supporting reason there assigned was, indeed, that the approved construction would prevent inequalities as between purchasers, in the administration of the law; but the slight change in one word of the statute which the

We hold that in section 3 of said act of 1915, supra, the maximum of land which one may purchase thereunder is defined in sections, not in acres.

clearly the legislative intent is not analogous | ing never been repealed, the stated restric to the extensive changes necessary to conform tive requirements thereof should be read the provisions of said act of 1915, supra, to into, and should be construed and applied in the meaning which counsel for the Commis- connection with, the above-quoted provisions sioner ask us to place upon it. We find no of said act of 1915, unless the latter are so ambiguity in said portion of section 3; hence inconsistent with the former as to repeal the public policy involved is not one of ju- them by necessary implication. In support of dicial control or concern. that settled rule of construction no authori ties need be cited. We find no such inconsistency. The material changes from preexisting law which were made by said act of 1905 were these: (a) Different sale days were designated; (b) conditions of settlement and residence on the land were removed; (c) the amount of first payment was increased; (d) the rate of interest was increased. By the terms of R. S. art. 5418 (Acts 1907, 1st Called Sess. p. 490, § 6), which also was left in force, as well as by the terms of said act of 1915 (section 3) Jeff Davis county, in which section 1330 lies, is an eight section county; the "complement" in that county being "eight sections."

[2] Upon the second question, R. S. art. 5420, which was in force on January 1, 1916, provides:

"The Commissioner of the General Land Office is hereby prohibited from selling to the same party more than one complement of four or eight sections of land, according to the county; and all applications to purchase land shall also disclose the prior lands purchased by the applicant from the state, if any, and the residence of the applicant at said time; and, if it appear therefrom, or from the records in the land office, that said applicant has already purchased land aggregating four or eight sections, according to county, since April 19, 1901, his application shall be rejected; provided this shall not apply to sales made to a purchaser and afterwards canceled as invalid for some reason other than abandonment, and where the purchaser himself was not at fault." Gen. L. 1901, c. 125, p. 294, § 3.

It seems true that Act of 1897, c. 129, p. 184, in authorizing sales of state lands, made no restriction based on former purchases by an applicant. It seems true, also, that various subsequent acts, preceding, however, said act of 1915, expressly required that, in determining whether an applicant was qualified to purchase the lands described in his application, prior purchases by him should be charged against him (Acts 1901, c. 125, p. 294. § 3; Acts 1905, c. 103, p. 163, § 6; Acts 1907 [1st Called Sess.] c. 20, p. 490, § 6), and that said act of 1915, did not do so; but that circumstance does not conclusively indicate a legislative purpose to revert to the practice under said act of 1897 and to relieve or exempt the operation of said act of 1915 (under which the award here in question was made) from such requirement of R. S. art. 5420, supra, which was not expressly repealed.

Obviously the purposes of said article 5420 are: (a) to prohibit state sales of more that "a complement" of lands to one person; and (b) to charge the applicant with all lands so purchased by him since April 19, 1901, with certain exceptions which are not claimed to exist in the present case.

Now section 1 of said act of 1915, which was in force when the land here in controversy came on the market, and when both applications to purchase same were filed, expressly declares that "the surveyed lands ** * * shall be sold under the terms, conditions, limitations and regulations as is now provided by law, except as changed herein." Consequently, said article 5420 hav

Inasmuch, therefore, as none of the changes made in said act of 1915 conflicts with the quoted requirements of article 5420, those requirements also must be applied to the facts of the present case, with the result that, inasmuch as all of Jones' former purchases. aggregating eight sections, were made prior to April 19, 1901, they must be charged against him, and since they and section 1330, which must be counted as a section contain ing "640 acres * or less" together overrun the statutory "complement" of “eight sections," Jones could not, on January 1, 1916, or afterwards, legally purchase said section 1330, and said attempted sale thereof to him must be canceled. This conclusion, besides finding strong support in reason, is in line with precedent. Houston v. Koonce, 106 Tex. 50, 156 S. W. 202.

*

A statute later than said article 5420 de clared that "any person desiring to purchase any portion of the unsurveyed school fund" may designate "the land he desires," and that such land shall be surveyed by the county surveyor, etc., and that, "if upon inspection of the papers, the Commissioner is satisfied * that the land is vacant and belongs to the school fund, and the survey has been made according to law, he shall approve same and notify the applicant that the land is subject to sale to him, stating the classification, price and terms, which shall be the same as that for surveyed lands, except as herein provided." Gen. Laws 1905, c. 103, p. 164, § 8. The language conferring that right to purchase is very broad, placing no express limitation upon the amount of land to be purchased.

That act did not expressly carry forward the provisions of article 5420, supra, or refer in terms to the act of 1901 from which it was taken, but did declare that "all laws and parts of laws in conflict with the provisions of this act are hereby repealed" (sec tion 12); nevertheless this court, through

Chief Justice Brown, in the cited case, de- he did not make such statement to the sher clared:

"The two laws are entirely consistent so far as they apply to the same subject, and no repeal of the previous law was effected by the law of 1905. * * Under neither law could a purchaser acquire more than four sections."

The effect of that decision was to read into section 8 of said act of 1905 the restrictions set out in said article 5420, which forbade the Commissioner to sell to the same party "more than one complement of four or eight sections of land, according to the county." The writ of mandamus should be granted, in all respects as prayed for; and it is so or

dered.

HARRIS v. STATE. (No. 4636.)

1918.)

iff, and that there was no disturbance there at the time. Upon cross-examination this witness testified the son give him the whisky. Tom Harris and the sheriff both testified that when the sheriff took the whisky from the witness the sheriff gave him a dollar with which to get more whisky from appellant; that Harris took the money and went away. The sheriff and another officer named Bacchus followed. They did not go into the

house at the time that Tom Harris did. Bac

chus followed Tom Harris from the house and overtook him some distance going away from the house and took another pint of whisky from him. Tom Harris says he bought that also from appellant. The sheriff knew nothing of this transaction further than as above stated, and did not examine to

(Court of Criminal Appeals of Texas. Feb. 27, see whether Tom Harris had the money on him, or to see that John Harris had the monCRIMINAL LAW 941(1)—NEW TRIAL-NEW-ey; he arrested John Harris at once.

LY DISCOVERED EVIDENCE.

On trial for violating the local option law by selling whisky to accused's father, where the father was the only witness testifying to the sale, and all of the other evidence showed that no sale was made, that on one occasion accused gave him whisky, and on another occasion he took it without the knowledge of accused, and there was evidence that the father was at times considered crazy, and that he felt very unkind towards accused and his daughter, and on motion for new trial there was stronger evidence that the father was crazy, especially when he had been drinking, and as to the reasons for his feelings towards his children, a new trial should be granted, though the evidence presented on the motion for the new trial was in part at least cumulative.

There

was no money found left in the house. Appellant, his sister, and a witness named Jackson all testified that they were present at the house where the first transaction occurred, and that John Harris was not present when the witness Tom Harris got the second pint. Their testimony, in substance, was this: That appellant and his sister were in the habit of ordering whisky for their own use, and on this occasion his father had been to the house.

At that time they had no whisky. After he left appellant and Jackson went to the depot and received from the express office five bottles, half of which belonged to appellant and the other half to his sis

Appeal from District Court, Harrison ter. They took these bottles to his sister's County; P. O. Beard, Judge.

John Harris was convicted of violating the local option law, and he appeals. Reversed and remanded.

Y. D. Harrison, of Marshall, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the

State.

DAVIDSON, P. J. Appellant was convicted of violating the local option law.

residence, and there they divided this whisky by putting some of it into pint bottles; that it belonged equally to appellant and his sister. After they reached home with the whisky their father, Tom Harris, returned, took two or three drinks, and when he left they gave him a pint of whisky, which he took with him. This was the whisky that the sheriff found on the person of Tom Harris near the courthouse. These witnesses testified that there was no sale made to the wit

This case presents rather an anomalous record. Tom Harris, father of appellant, ness Tom Harris, and that appellant gave was the only witness relied upon by the state him the pint when he left the house. With to prove the sale, and this he states was to reference to the second pint, the witness Tom him by his son John. He testified that on Harris returned to the house, went into the the morning of the alleged transaction, which room where the whisky was, took a pint and was the 2d day of February, 1916, as shown went away, but left no money and paid nothby the sheriff's testimony, he was at the resi- ing for it; that appellant was not present, dence of his daughter and got a pint of and did not know he got it until later. There whisky from the defendant and paid for it; is some evidence to show that Tom Harris that while at the house he did not drink felt very unkindly to his son and daughter. any whisky, but took the pint and went He made such admission. There is evidence away. Going by the courthouse, the sheriff also that Tom Harris was at times considfound him with the whisky and took it. The sheriff testified that the witness told him that he wanted him to go down to his daughter's house and stop a disturbance that was going on at that place. The witness says

ered crazy, and had been since he received a lick on the head working in the Texas & Pacific Railroad shops, and that he was irresponsible for what he said. There is appended to the motion for new trial affidavits