
    CORPORATION OF SAN FELIPE DE AUSTIN v. STATE.
    (No. 3320.)
    (Supreme Court of Texas.
    April 6, 1921.)
    1. Taxation <§=>183 — Mexican land grant to town as timber and grazing lands exempt from taxation, as devoted to a “public use.”
    Public land granted to the town of San Felipe de Austin for use by inhabitants as timber and grazing lands by original grant of the Mexican government, confirmed by acts of the Congress of the Republic in 1837 (Laws 1837, p. 21) and 1841 (Laws 1840-41, p. 46), where still so used by the inhabitants of such city, is exempt from state and county taxation under provision of Constitution exempting land devoted to a “public use”; the land having been impressed with a “public use” by the Mexican grant confirmed by the acts of the Congress, and the character of the land having undergone no change.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Public Use.]
    2. Taxation <@=>183 — “Municipalities” political subdivisions of state and same rule applies as to taxation of their property.
    The municipalities of the state are political subdivisions of the state, and to tax their property devoted to public use amounts to the state taxing itself.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Municipality.]
    3. Taxation <@=183 — Property of municipality devoted to public uses not taxable.
    Property of a municipality devoted to public uses is not taxable.
    4. Taxation <@=185 — Property used for governmental purposes not necessarily exempt.
    Property used for governmental purposes is not necessarily exempt; the test under the Constitution being whether it is devoted to a public use.
    Certified Questions from Court of Civil Appeals of First Supreme Judicial District.
    Action by the State of Texas against the Corporation of San Felipe de Austin. From judgment for the State the corporation appealed to the Court of Civil Appeals, which court certified questions to the Supreme Court. Question answered.
    Johnson, Matthaei & Thompson, of Bell-ville, for appellant.
    J. E. Edmondson, Co. Atty., and C. G. Krueger, both of Bellville, for the State.
   PHILLIPS, C. J.

The question presented by the case is whether the unsold portion of the five leagues of public land originally granted by the Mexican government to the town of San Felipe de Austin in 1824, — now 1,813% acres, and being of the lands original-Iy granted the municipality for use by its inhabitants as timber and grazing lands, is subject to State and County taxation.

Following the independence of Texas, the town of San Felipe de Austin was incorporated by a special act of the Congress of the Republic, in 1837 (Laws 1837, p. 21). This act confirmed to the municipality title to all the public property in it. This act was amended by one approved January 20, 1841 (Laws 1840-41, p. 46), which also confirmed to the citizens of the municipality all the powers and property originally granted by the Mexican Government, and providing that the powers and jurisdiction of the town should extend over the whole territory belonging to it.

'These acts of the Republic are still in force.

In the original Mexican grant, giving the inhabitants of the municipality the right to cut timber for building and firewood from the “Woods” belonging to the municipality, it was declared that the timber land should not be sold or rented until in the judgment of the municipal authorities all the useful timber had been cut from it. None of the timber land comprised in the original grant has ever been sold.

The municipality of San Felipe de Austin now has only about 100 inhabitants. No taxes are levied for municipal purposes. All costs of the municipal government and for repairs of public buildings and streets, and maintenance of its school, are paid out of the proceeds of the sales of lots and interest on money loaned, originally obtained from the sales of lands of the municipality.

Ever since its creation the municipality has exercised the powers and enjoyed the privileges conferred by its charter.

The land upon which the taxes are sought to be imposed is now publicly used by the inhabitants of the municipality for grazing purposes and the furnishing of firewood in accordance with the terms of the Mexican grant, and — as we gain from the certificate of the Court of Civil Appeals — just as the original inhabitants used it under the grant. It has never been rendered for taxation. No attempt had ever been made to subject it to taxation until 1915, when it was assessed upon the delinquent rolls of Austin County for taxes for the years 1885 to 19Í5, inclusive. These are the taxes here sought to be recovered.

The case has a special interest because of the historic memories which cluster about the ancient town of San Felipe de Austin on the Brazos. It was the seat of Austin’s colony, the place of Austin’s residence during the time he was local governor of the colony; and there were held the sessions of the ayuntamiento which provided the local civil government for the region. It was given its name by Garcia, the Mexican governor, San Felipe being his patron saint, and the name of Austin being added as a compliment to the impresario. Texas liberty and independence were cradled there. The first conventions of the Texas people, in 1832 and 1833, were held amid its primitive surroundings, followed by the general consultation of 1835. It remained the center of patriot interests in Texas until the formation of the Republic. It is now but a village of a few inhabitants, an impressive monument of the mutations of time, the lingering relic of a mighty period, yet in its isolation rich with the historic traditions of nearly a hundred years, and to be venerated as a shrine of Texas freedom. It is more than an ordinary cause that now calls it into the forums of the State to defend its ancient rights.

There can be no warrant for denying those rights in this land. They are entitled to be preserved in their full integrity as given by the original grant of the Mexican government and as confirmed by successive acts of the Congress of the Republic. Under the rights of that grant as so confirmed the land was exempt from taxation as public land of the municipality devoted to a public use. The character of the land has undergone no change, and it is therefore still exempt.

The appropriation of large areas for grazing and timber purposes is of course unknown in the establishment of municipalities in this day, but it was common in the creation of the early Texas towns chartered by the Spanish and Mexican governments. Those lands were as fully impressed with a public use and devoted to a public purpose as are the parks and public grounds of the cities of this time. It was merely a different habit, in the people, a different environment which surrounded them and a different necessity growing out of that environment which led to their dedication to the particular use. It was none the less a public use, and as valuable to the people of those towns as are the public grounds of present-day. municipalities to their inhabitants.

There can be no doubt that the purpose of the acts of the Congress was to confirm to the municipality the full right to this land as public land, to he so held by it so long as it might see fit to devote the land to public uses for the benefit of its inhabitants. The-land had that character under the Mexican grant; and the character it then possessed entered into the title confirmed by the acts of the Congress. Those acts still remain in full force. The original public use of the land has continued to this day, and with it has continued the land’s original public character.

The Use of the land at the time of the passage of the acts of the Congress was clearly a public use. It was a use necessarily recognized by the Congress as public in its confirmation of the municipality’s rights. What the Congress confirmed as a public use is not now to be held a private use. Being a public use under those acts and the acts being still in force, it remains a public use. To bold otherwise is simply to change and in part destroy the rights confirmed to the municipality by the Congress of the Republic.

The Constitution exempts from taxation the property of municipalities devoted exclusively to the use of the public. The municipalities of the State are political subdivisions of the State. To tax their property devoted to public uses but amounts to the State’s taxing itself. It is therefore not taxable.

The test is not whether the property is used for governmental purposes. That is not the language of the Constitution. This Court has never adopted that narrow limitation and the weight of authority is opposed to it. Much public property of municipalities exempt from taxation has, and can have, no governmental use. The test is whether it is devoted exclusively to a public use. In Galveston Wharf Co. v. Galveston, 63 Tex. 14, the interest of a city in a public wharf, represented by stock in a wharf corporation, was held not taxable under the Constitution. It would be difficult to find anything “governmental” in the public use of a wharf.

We answer the first question certified, that this land of San Eelipe de Austin is not subject to taxation. This makes unnecessary answer to the other questions. 
      di=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     