majority">Gould, Associate Justice.

On the 1st of February, 1871, the County Court of Anderson county leased to defendant Worley, for the term of three years, 3,307 acres of school land, being the same patented to the school commissioners of Anderson county on September 10, 1852. This suit was brought in the name of the State, on December 5, 1872, to recover of defendants, Worley and others, the lands so leased. The substantial question involved in the case is,—Has the title to the school'lands granted to counties been divested out of the counties, and revested in the State ? In the ease of Galveston County v. Tankersley, (39 Tex., 656,) this question was decided in the negative. The court held, that it was not the purpose of the Constitution to annul these grants to the counties, and that the counties still held the lands in their own right. As an original question, it may be admitted that the true construction of sections 6 and 8 of article 9 of the Constitution is involved in doubt. Our examination, however, has tended to the same conclusion arrived at by the court in the case of Galveston County v. Tankersley, as to the proper construction *10' of these sections, and has certainly developed no sufficient reason for denying the authority of that case on that point.

A brief statement of some of the reasons in favor of this construction is deemed appropriate.

So much of section 6 of article 9 of the Constitution as is material for our purpose, reads as follows: “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 and appropriated, for the support and maintenance of public schools, shall constitute the public-school fund.” * * *

Section 8: “The public lands heretofore given to counties shall be under the control of the Legislature, and may be sold under such regulations as the Legislature may prescribe ; and in such case the proceeds of the same shall be added to the public-school fund.”

In section 6, the county school lands are not designated in terms. There were other lands which had been “ set apart and appropriated for the support of public schools ” in the State at large, to which the clause is plainly applicable. In regard to some of the lands granted to counties “for the purpose of establishing a primary school or academy” therein, it may be said to be a matter of public history, that in some cases they had been sold before the adoption of the Constitution of 1845 prohibiting their sale, and the proceeds had been applied to the erection of academies. The better construction seems to be, that the county school lands were not intended to be embraced in the lands which are made to “ constitute the public-school fund.” If, in fact, these lands were, by section C, made a part of the school fund in any such sense as to make them no longer the property of the counties, but the property of the State, then the eighth section, subjecting these same lands to the control of the Legislature, seems unnecessary. In that section, the school lands given to counties are specifically named. But though the Legislature are empowered to have these lands sold, and the proceeds of the *11sales are to be added to the public-school fund, it does not follow, of necessity, that, before sale, the counties were divested of title; nor that, after sale, they were to be deprived of the benefit of the interest of the proceeds.

Some light is obtained, by comparing the sections under consideration with the corresponding parts of the Constitution of 1866, from which they appear to have been taken. Parts of that instrument are as follow:

Section 2: “ The Legislature shall, as early as practicable, establish a system of free schools throughout the State; and as a basis for the endowment and support of said system, all the funds, lands, and other property heretofore set apart and appropriated, or that may hereafter be set apart and appropriated, for the support and maintenance of public schools, shall constitute the public-school fund,” &c.

Sections 3 and 4 set apart the alternate sections of land reserved by the State out of grants to railroad and other corporations as part of the perpetual school fund, and required the Legislature to provide for their sale.

Section 6: “ All public lands which have been heretofore, or maybe hereafter, granted for public schools to the various counties or other political divisions in this State, shall be under the control of the Legislature, and may be sold on such terms and under such regulations as the Legislature shall by law prescribe; and the proceeds of said lands shall be added to the perpetual school fund of the State. But each county shall receive the full benefit of the interest arising from the proceeds of the sale of the lands granted to them respectively: Provided, That the lands already patented to the counties shall not be sold without the consent of the county or counties to which the lands may belong.”

It is beyond controversy, that the intention of the framers of the Constitution of 1866, as made plain by the latter clauses of section 6, just copied, was not to divest the title out of the counties, nor to deprive them of the benefit of the proceeds of the lands for the use of public schools within their limits *12The omission of these clauses in the present Constitution may • show an intention to give the Legislature more unlimited authority to sell, and perhaps an intention to leave • it to that body, in their discretion, to make the interest on the proceeds go to the benefit of the schools of the State at large, or'to the benefit of schools of the respective counties to which the lands belonged. But it cannot be said, that from the omission of these clauses, or from anything in section 8 as it now stands, does it plainly follow that the counties are, without legislative action, divested of their title.

There has been no legislation, under the Constitution, on the subject, except the act of August 13,1870, which attempted to make the county school lands a part of the permanent school fund, but which was repealed before the trial of this cause. (Paschal’s Dig., art. 6666; Laws of 1873, page 94.) It is not necessary, therefore, to consider its effect.

The charge of the court below was to the effect that the school lands of Anderson county were a part of the general school fund, and that the State was entitled to recover if the lands sued for were county school lands. Various irregularities appear in the institution and progress of the suit; but it is believed necessary only to dispose of the main question.

It is proper to remark, that whilst we recognize the authority of the case of Galveston County v. Tankersley, on the question actually decided, to wit, the construction of the Constitution, we are by no means prepared to assent to what is said in the opinion in that case, denying the power of the State over lands granted by her to her own political subdivisions for public purposes.

The judgment is reversed and the cause remanded.

Reversed.

Note.—This case was submitted October 22,1874, and at close of the Tyler Term taken under advisement and transferred to Galveston Term, It was decided February 16,1875. The case is of importance, and is now inserted, though out of its order.

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