
    UNDERWOOD v. ROBISON, Land Office Com’r, et al.
    (No. 4233.)
    (Supreme Court of Texas.
    
    June 28, 1918.)
    Mines and Minerals <&wkey;25 — Mineral Permit — Forfeitures.
    Act's 33d Leg. c. 173, providing that failure of the owner of mineral rights in school lands to comply with certain requirements shall work a revocation of his permit and the termination of the rights of the owner, and such termination shall be indorsed by the Commissioner of the General Land Office upon a duplicate of the permit retained in the General Land Office, does not ipso facto work a forfeiture of mineral rights, and other applicants cannot file until the commissioner has indorsed a termination upon a duplicate of the permit retained in his office.
    Motion by John C. Underwood for leave to file petition for mandamus against J. T. Robison, Commissioner of the Land Office.
    Motion overruled.
    Rowe & Kay, of Houston, and N. A. Rector, of Austin, for relator.
   HAWKINS, J.

The motion is for leave to file a petition for the writ of mandamus. Leave is refused because, in our opinion, the petition is without merit, in that it presents a question of law which plainly is controlled by previous decisions of this court.

The question raised is this: Does the Act of 1913, c. 173, p. 409 et seq., relating to tue prospecting of school lands and the development of minerals thereon, provide for ipso facto forfeitures of mineral rights acquired under said statute, because of failure to comply with its requirements, or does the extin-guishment of such rights, for such causes, await the action of the Commissioner of the General Land Office in making, upon the duplicate copy of the permit retained in the General Land Office, an indorsement of such forfeiture?

We hold, to the latter view. Said act of 1913 does, indeed, declare that failure of the owner of the.permit to comply with certain requirements “shall work a revocation of said permit and the termination of the rights of the owner”; hut that declaration is followed, immediately, by the provision:

“Such determination shall be indorsed by the Commissioner of the General Land Office, upon a duplicate of the permit retained in the General Land Office.”

The policy of our laws, as expressed in various earlier statutes relating to public lands, and as worked out and declared in several decisions of this court construing them, has been against ipso facto forfeitures and in harmony with the. theory that affirmative action by the commissioner in expressly declaring a forfeiture, upon statutory grounds, and in duly making a statutory record thereof, must precede filings by other applicants. The legislative purpose seems to have been to require an official ascertainment and record of such forfeiture rather than to leave open, indefinitely, the issue of. forfeiture vel non, thereby perhaps placing upon holders of subsequently accruing rights the burden of proof. Adams v. Terrell, Com’r, 101 Tex. 331, 107 S. W. 537; Erp v. Robison, Com’r, 106 Tex. 143, 155 S. W. 180, 157 S. W. 1160.

It is to be presumed that in the enactment. of said mineral rights statute of 1913 the Legislature intended that said decisions and said settled public policy should be read into it, and that it should not be construed as contemplating ipso facto forfeitures.

The motion is overruled.  