Honorable Grainger McIlhany    Opinion No. C-52
Chairman
Land Study Committee           Re:     Whether, In view of the
House of Representatives               prohibitions, restrictions
Austin, Texas                          and reverters in H.B. 6,
                                       Chapter 68, 36th Leg.; H.B.
                                       164, Chapter 40, 47th Leg.;
                                       and H.B. 492, Chapter 253,
                                       49th Deg., the Glasscock
                                       Fill Area, located in Corpus
                                       Christi Bay, has reverted to
Dear Sir:                              the State and related questions.
          You request an opinion of this office in regard to
"The Glasscock Fill Area located in Corpus Christ1 Bay and pre-
sently claimed by private individuals with a chain of title
from Corpus Christi." Your request presents the following ques-
tions, "in view of the prohibitions, restrictions and reverters"
in the Acts referred to in your letter, and herein.
          1.   Whether the Glasscock Fill Area has reverted to
the State.
          2. Whether the Glasscock Fill Area, in view of the
restrictions as to the public use and benefit, can be lawfully
conveyed by the City of Corpus Christ1 for private use and
benefit.

          3.  If the land has not been forfeited back to the
State, what Interest the State of Texas and the general public
presently have in the above referred to land.
          It occurs to us that the true answers to these quee-
tlons must be found In a correct Interpretation and construc-
tion of the legislative enactments herein referred to.
          House Bill No. 6, Chapter 68, approved March 17, 1919,
entitled: "Granting to the City of Corpus ChI;isticertain land
lying under the waters of Corpus Chrlsti Ray, contained the
following provisions pertinent to the questions presented:


                               -237-
Honorable Gralnger McIlhany, page 2 (C-52)


            "Section 1. All right,tltle and interest
     of the State of Texas to all the land herein-
     after In this section described lying and being
     situated under the water of Corpus Chrlsti Bay
     and within the corporate limits of the City of
     Corpus Christi, Texas, is hereby granted to the
     said city for public purposes only; said land
     so granted being described as follows: All
     land west of the line beginning at a point in
     the northern boundary line of the corporate
     limits   of said city of Corpus Christl, Texas,
     one thousand feet (1,000) from the point of
     intersection of said northern boundary line
     with the present shore line of Cbrpus Christi
     Bay; thence In a southerly direction to a point
     in the Southern boundary line of the corporate
     limits of said city one thousand feet (1,000)
     east from the point of intersection of the said
     Southern boundary line with the present shore
     line of said Bay,

          "Sec. 2. The city of CorpusChristi is
     hereby granted the right, power and authority
     to locate, construct, own and maintain withln
     said territory hereby granted such sea walls or
     break waters as may be necessary or desirable
     into the waters of Corpus Christ1 hay, and to
     fill in the space between the said main land and
     the sea walls or break waters of Corpus Christ1
     Bay, having first secured a permit from the
     Federal Government therefor and all area formed
     by such construction and filling in Is hereby
     declared to be the property of the City of Corpus
     Christi to be used by said city for public pur-
     poses only, and said city shall have the right,
     power and authority to construct such walks, drives,
     parks and buildings for public purposes only on
     all of such area as may be deemed suitable or
     desirable for such public purposes, and any such
     building or structure erected may be rented for
     purposes of a public nature and all proceeds de-
     rived from such rental ehall be paid into the
     general fund of the city; provided, however, that
     the city of Corpus Christ1 shall not have the
     right to take from Corpus.Chrlstl hay .any sand,
     dredge spoil or other material except such as may



                               -238-
Honorable Grainger McIlhany, page 3 (C-52)


     be necessary for the purpose of filling In
     between said sea walls or break waters and
     the main land, and provided that the City of
     Corpus Christ1 shall not place or permit the
     placing of any building other than for orna-
     mental or civic purposes on said area, except
     within the shipping district as hereinafter
     defined.
          "* * *

          "sec. 8.  All mines and minerals and
     mineral rights including 011 and gas in and
     under said land, together with the right to
     enter thereon for the purpose of development,
     are hereby expressly reserved to the State of
     Texas.
          "Sec. 9. This grant to the City of Corpus
     Chrlsti is upon the express condition, that said
     city shall within five years from and after the
     passage of this Act, begin the construction of
     said sea wall and shall within a period of ten
     years complete same, and failure to do so shall
     forfeit the grant.
          "Sec. 10. Before the City of Corpus Christi
     shall begin the improvement herein contemplated,
     the Commissioner of the General Land Office shall
     fix a price per acre upon the area herein granted,
     and when the improvement herein contemplated shall
     have been completed, a showing of that fact shall
     be made to the Commissioner of the General Land
     Office, and the said City of Corpus Christ1 shall
     then pay to that officer for the benefit of the
     public free school fund of this State, the total
     sum due upon such acreage, and upon such showing
     and payment the Commissioner of the General Land
     Office shall issue a patent thereupon when furnished
     proper field notes by the County Surveyor of Nuecee
     County, Texas.
          "Sec. 11. The    right 18 hereby expressly re-
     served by the State   of Texas and the United States
     Government to erect   on the lands herein conveyed
     such wharves, piers   and buildings for State or
     Government purposes   as many hereafter be authorized
     by law.

                                -239-
Honorable Grainger McIlhany, page 4 (C-52)


          "Sec. 12. The fact that the great portion
     of the business part of the City of Corpus Christ.1
     and all of the shipping district is located on the
     edge of Corpus Christi Bay only a few feet above
     sea level and the fact that the waves are daily
     eroding the shore line of said Bay and destroying
     valuable properties, and the fact that a great
     number of Texas people and a great number of
     people living at Corpus Christ1 and a great num-
     ber of visitors from the State of Texas and other
     States are living in small houses on the Bay front
     and located In such manner as to be wholly unpro-
     tected from the gulf storms and the fact that a
     great number of said houses and nearly all the
     boats in the shipping district of Corpus Christ1
     were destroyed by the storm of August 18th, 1916,
     create an emergency and an imperative public neces-
     sity that the constitutional rule requiring bills
     to be read on three several days be suspended, and
     that this Act take effect and be In force from and
     after its passage, and It is so enacted."
          The Glasscock Fill Area comprises approximately 22.47
acres of land, more or less, located on the bayfront at Corpus
Christl, Texas. Examination of the property on the ground shows
that most of It is filled in along the bayfront except for a
small strip of upland along Ocean and Shoreline Drives, being
the crest and toe of the Bluff on the westerly side of this
tract of land. Except for said strip of upland, the fill area,
or land in question, appears to be within the land granted by
the State of Texas to the City of Corpus Christi in the above
statute. It appears that substantial improvements have been
made to this land in the way of fill work and a concrete retain-
ing wall.
          The State of Texas issued a patent on the 4th day of
January, 1924, granting to the City of Corpus Christ1 705.78
acres of land described therein embracing a portion of the
waters of Corpus Christi Bay east of Its shore line, and between
the northern and southern boundary lines of the City of Corpus
Christi, "bought and fully paid for on the application of City
of Corpus Christl, filed in the Geieral Land Office November 3,
1923, under Act of March 17, 1919, and providing "all mines
and minerals, and mineral rights Including oil and gas in and
under said land, together with the right to enter thereon for
the purpose of development, are expressly reserved to the State
of Texas."


                              -240-
Honorable GraingerMcIlhany, page 5 (C-52)


            The application for patent filed in the General Land
Office November 3,~1923, states:
             "      After the passage of the Act of 1919,
     and in'the'year 1920, the City of Corpus Christ1
     began the construction of a rip rap breakwater
     in the waters of Corpus Christi Bay as contem-
     plated by both Acts of the Legislature and for
     which the funds were provided by the Act of 1917,
    ~,andhas completed said breakwater as contemplated,
     having constructed 3900 feet of rip rap breakwater
     at a cost in all to the City of something more than
     $630,000  .oo.   The seawall or breakwater contemplated
     by the Act of 19;7 and the Act of 1919 has been
     completed. . . .
          A copy of a report dated January 4, 1963, by C. M.
Reynolds, Public Works Coordinator, City of Corpus Christi,
Texas, states:
          " . . . Findings indicate with reasonable
     certainty that the construction, referred to in
     the patent to the City, was actually completed
     and accepted, with final payment to the contrac-
     tor approved, on 5 August 1921. Work completed
     consisted of the first stage of the Breakwater,
     being a portion of the Central Arc, as It now
     exists. A review of the plans In our files indi-
     cates the 3900 lineal feet to be approximately
     correct. . . .'
          The City of Corpus Chrlstl, Texas, by special warranty
deed dated March 15, 1937, executed by H. R. Giles, Mayor, con-
veyed to C. M. Gordon et ux, certain property in Corpus Christ1
Hay, being part of the land granted to the City of Corpus Chrlsti,
Texas, by H.B. 6, Chapter 68, approved March 17, 1919 (above).
The deed provided that:
          " . . . Grantees shall, at his own cost
     and expense, raise and fill thearea herein con-
     veyed to city grade level and shall conform to
     the Hay Front Improvement Plan of the City of
     Corpus Chrlsti, when adopted, in the use and
     improvement of the property conveyed to them In
     this deed."
          The deed further provided that:


                               -241-
Honorable Grainger McIlhany,,page 6 (C-52)


          ”
                 Grantees and grantor shall cooperate
     In se&&g    a decree of the court or a legislative
     act, or both, which will quiet the title to the
     property herein conveyed as against claims of the
     general public, if any, to said property. . . ."
          The City Council of the City of Corpus Christi passed
and approved on the 7th day of April; 1937, a resolution author-
izing and directing the execution of a deed to this property
to C. M. Gordon et ux. The pertinent parts ,ofthis resolution
are as follows:
          "A resolution authorizing and directing
             the mayor of City of Corpus Christi
             on behalf of the City to execute a
             deed from the City of Corpus Christi
             to C. M. Gordon and wife for the ex-
             change of certain property rights In
             connection with a tract of land situ-
             ated within the city limits and
             bordering on Corpus Christi Bay and
             declaring fan emergency.
     "BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
        CORPUS CHRISTI:
         "Section 1: That the Mayor of the said city
    of Corpus Chrlsti, the Honorable H. R. Glles, be,
    and he is hereby authorized and directed to exe-
    cute a deed conveying the tract of land hereln-
    after first described, to C. M. Gordon and wife,
    Nrs. C. M. Gordon, of San Antonio, Bexar County,
    Texas, in exchange for the property rights as
    hereinafter secondly described, which said deed
    shall be in substance in the same form as deeds
    heretofore executed by the City of Corpus Christl,
    to riparian property owners, for the exchange of
    like property interests along the bay shore of
    Corpus Christ1 Bay, adjacent to the City of Corpus
    Christi, Texas, the land to be conveyed by the
    City being situated In Nueces County, Texas and
    described as follows, to wit:
          1 % l   *



         "Section 2: The fact that the Bluff along
    Ocean Drive in the city limits of the City of
    Corpus Christi has been eroding and is subject to


                              -242-
Honorable Grainger McIlhany, page 7 (C-52)


    continued erosion, endangering the safety and
    protection of Ocean Drive, along the west
    boundary line of the lands herein referred to,
    and that the exchange of such property rights
    would encourage and enable the protection of
    such property and Ocean Drive, and that the
    protection of the properties involved creates
    a public emergency and a public Imperative
    necessity requiring the suspension of the
    Charter rule providing that no Resolution or
    Ordinance shall be passed finally on the date
    it is Introduced, and that such Ordinance or
    Resolution shall be read at three meetings of
    the City Council, and that the Mayor having
    declared that such public emergency and impera-
    tive necessity exists, and requests that said
    Charter rule be suspended, and that this Resolu-
    tion take effect and be In full force and effect
    from and after its passage, and it is accordingly
    so ordained. . . ."
          The land In question by mesne conveyances was deeded
to C. G. Glasscock, and then to Scotch Investment Company, a
private Texas corporation, and Is known as the Glasscock Fill
Area.
          In 1941, the Legislature enacted House Bill No. 165,
Chapter 40, filed without the Governor's signature March 14,
1941, effective March 17, 1941, which is set forth as follows:
          "CORPUS CHRISTI--TITLE GRANTED TO
              CERTAIN SUBMERGED LANDS
      "H.B. No. 165         CHAPTER 40.
      "An Act granting to the City of Corpus Chrlstl,
          Texas, all right, title and interest of the
          State of Texas to certain land hitherto sub-
          merged by the waters of Corpus Christ1 Bay;
          ratifying and confirming exchanges and con-
          veyances of property within the area to cer-
          tain private owners; reserving the minerals
          unto the State; declaring that the Act shall
          be cumulative of former grants and authorities;
          and declaring an emergency.




                             -243-
Honorable Grainger McIlhany, page 8 (C-52)


     "Be it enacted by the Legislature of the State of
        Texas:
          "Section 1. All right, title and interest
     of the State of Texas In and to all land within
     the area hereinafter mentioned, hitherto or now
     lying and situated under the waters of Corpus
     Christi Day, is hereby relinquished, confirmed,
     and granted unto the said City of Corpus Christi,
     its successors and assigns, for public purposes,
     to-wit:
          "Beginning at the northeasterly corner of
     the city limits of the City of Corpus Christl;
     thence southerly along said east boundary line of
     said city to its southeasterly corner; thence
     westerly along the south boundary line of said
     city to its intersection with Ocean Drive; thence
     northerly along Ocean Drive, Day View Avenue,
     South Water Street, Water Street and the projec-
     tion or extension thereof to the north boundary
     line of said city limits; thence easterly along
     said city limits to the point of beginning.




          “Sec.   3.All mines and minerals, and the
     mineral rights including oil and gas in and under
     said land, together with the right to enter there-
     on for the purpose of developing, are hereby ex-
     pressly reserved to the State.
          “Sec. 4.  This Act shall be and is cumulative
     of all former grants and authority from the State
     of Texas to the City of Corpus Christi.
          "Sec. 5.  The fact that Chapter 68, Acts of
     Thirty-sixth Legislature, 1919, granted to the
     City of Corpus Christ1 all title of the State to
     to the submerged lands within the area described

                             -244-
Honorable Grainger McIlhany, page 9 (C-52)


    In this Act but the field notes of the patent
    issued pursuant thereto omitted certain submerged
    tracts that had theretofore been filled; that
    the City of Corpus Chrlsti has found it neces-
    sary to exchange certain property and convey to
    the owners of adjacent private property a portion
    of the filled land within such area, In efforts
    to quiet City's tit1 ,   d    h private property
    owners desire to be-&i%ed"~~   their title,
    possession and use-bf::suchproperEy,so conveyed;
    and that It is necessary to the completion of
    the City's bay fron@ 9mprovementand storm pro-
    tection project that its title be quieted, create
    an emergency and an imperative necessity that the
    Constitutional Rule requiring bills to be read on
    three several days be suspended, and said Rule is
    so suspended, and this Act shall take effect and
    be in force from and after Its passage, and It
    is so enacted." (Emphasis added.)
          It is noted that the caption of House Bill No. 165,
Chapter 40, effective March 17, 1941, above, refers "to cer-
tain land hitherto submerged by the waters of Corpus Christi
Bay." Your letter states, and Investigation reflects, that the
Glasscock Fill Area was not filled in until deeded to C. G.
Glasscock in 19%.
          In 1945 the Legislature enacted House Bill No. 492,
Chapter 253, effective May 28, 1947, confirming the original
grant in the 1919 Act above as to 'that filled in land lying
landward behind the seawall for public purposes." The pertinent
provisions of this Act are set forth as follows:
      "An Act to grant, sell and convey to the City
          of Corpus Chrlsti, Texas, all right, title
          and Interest of the State of Texas to cer-
          tain land In said City hitherto .submerged
          by the waters of Corpus Chrlsti Bay; . . .
          "Section 1. All right, title and Interest of
     the State of Texas in and to all land within the
     area hereinafter mentioned, hitherto lying and
     situated under the waters of Corpus Christ1 Bay
     for and in consideration of the sum of Ten Thou-
     sand Dollars ($10,000) cash, Is hereby relin-
     quished, confirmed and granted unto the said City
     of Corpus Christl, its successors and assigns,
     for public purposes, to-wit:

                              -245-
Honorable Grainger McIlhany, page 10 (C-52)


         "Being all of that filled-in land lying and
    being situated fn Nueces County, Texas, landward
    behind the seawall and easterly of the shoreline
    of Corpus Christi Bay as shown in Survey No. 803
    and in the patent from the State of Texas to the
    City of Corpus Christi, Texas, said patent being
    dated January 4, 1924, and being Patent No. 86,
    Volume 21-A. . . ." (Emphasis added.)
          It is noted that House Bill No. 492, Chapter 253,
effective May 28, 1945, referred to "all of that filled-in
land lying and being situated in Nueces County, Texas, land-
ward behind the seawall and easterly of the shoreline of Corpus
Ch i ti Hay )I Your letter states and examination on the ground,
iniizates that the Glasscock Fill'Area is not situated landward
behind the seawall.
          The questions presented in your letter, stated above,
require a true and correct interpretation and construction of
the related statutes herein set forth. Black's Law Dictionary,
3rd Edition, defines "construction" thus:
         "The process, or the art, of determining
    the sense, real meaning, or proper explanation
    of obscure or ambiguous terms or provisions in
    a statute, written Instrument, or oral agreement,
    or the application of such subject to the case
    in question, by reasoning in the light derived
    from extraneous connected circumstances or laws
    or writings bearing upon the same or a connected
    matter, or by seeking and applying the probable
    aim and purpose of the provision. Quoted with
    approval in Kox v. Schneider, 110 Tex. 369, 221
    S.W. 880, 884.
          Black's Law Dictionary, 3rd Edition, further stated
at page 1000:
         "qConstruction' is a term of wider scope
    than 'Interpretation'; for while the latter Is
    concerned only with ascertaining the sense and
    meaning of the subject matter, the former may
    also be directed to explaining the legal effects
    and consequences of the Instrument in question.
    Hence interpretation precedes construction but
    stops at the wrltten text."



                              -246-
Honorable Grainger McIlhany, page 11 (C-52)


          House Bill No. 6, Chapter 68, approved March 17, 1919,
set forth above, granting to the City of Corpus Christ9 certain
land lying under the waters of Corpus Christi Hay, including the
Glasscock Fill Area, #ranted the land "to the said city for
public purposes only.   Section 9 of the Act provided th??t?"thls
grant t th Cit     f Corpus Christi Is upon the express condl-
tlon, t:at zaid iizy shall within five years from and after the
passage of this Act, begin the construction of said seawall
and shall within a period of ten {ears complete same and failure
to do so shall forfeit the grant.
          In 4 Lange, Texas Practice, Land Titles, Section 340,
it Is stated that:
          "If the language imposes a duty on the gran-
     tee to do something, or to refrain from doing some-
     thing, or that only a certain use shall be made of
     the property, then it may not be construed as a
     special limitation and must be construed either
     as a condition subsequent or as a covenant. Nor-
     mally, also, there must be language of re-entry if
     a condition subsequent is created, and language
     of reversion or revesting of the property in the
     case of a determinable fee. Further, as concerns
     conditions, a forfeiture Is generally only decreed
     if the grantee, his heirs, successors or assigns,
     refuse to comply with such conditions.
          ". . . a breach of a condition does not
     operate ipso facto as a forfeiture of the estate;
     nothing short of an actual entry will serve to
     defeat an estate upon a condition which has been
     broken; . . ."
          In Section 341, same volume, It is stated that:
          "
            . . . a condition subsequent Is one which
     operates upon an estate already created and vested
     and renders it liable to be defeated, but not as
     a limltatlon of the grantee's title. Any doubt
     as to the type of condition, whether precedent or
     subsequent, is resolved In the view that such condi-
     tion Is a condition subsequent rather than a condl-
     tlon precedent. The remedy of a grantor upon
     condition broken is by way of trespass to try title
     action and not by way of suit to rescind or cancel
     the deed. . . ."


                              -24-7-
Honorable Grainger McIlhany, page 12 (C-52)


          In City of Dallas v. Etheridge, 152 Tex. 9, 253
S.W.2d 640 (1952). the Suureme Court, Chief Justice Robert W.
Calve?%, then Associate Justice, held that where condition in
conveyance of a tract of land to city provided that city should
use the land for park purposes only, that no building or other
improvements should be erected upon certain portion of the
tract, and that the violation of any of the provisions of the
conveyance would at grantor's option terminate the grant, the
condition was a condition subsequent, and hence, the construc-
tion by city of a street across such restricted portion was a
breach of condition which would entitle grantor's successors
in interest to exercise the option and to maintain trespass to
try title action to recover possession.
          In Zachry v. City of San Antonio, 305 S.W.2d 558
(1957), the Supreme Court, Grlffl J tl      held that where
land had been used as a public paik y:r g%e than 100 years,
and there was never any abandonment of the park, lease of a
protion of the park by the city to an individual for 40 years
for the construction of an underground parking garage was void.
The court said that "all such property (acquired for and
actually dedicated to the public use of its inhabitants) is
held by the municipality in trust for the use and benefit of
its citizens, and is dedicated to the use of the public, and
the corporation cannot divest Itself of title without special
authority from the Legislature. It is only where the public
use has been abandoned, or the property has become unsuitable
or inadequate for the purpose to which it was dedicated $hat
a power of disposition is recognized in the corporation.
          Section 8,   Article XI of the Texas Constitution reads
as follows:
          "Sec. 8.  The counties and cities on the Gulf
     Coast being subject to calamitous overflows, and a
     very large proportion of the general revenue being
     derived from those otherwise prosperous localities,
     the Legislature is especially authorized to aid by
     donation of such portion of the public domain as
     may be deemed proper, and in such mode as may be
     provided by law, the construction of sea walls, or
     breakwaters, such aid to be proportioned to the
     extent and value of the works constructed, or to
     be constructed, in any locality."
          In Attorney General's Opinion No. o-6817   (1945), It
was held as follows:


                                -248-
Honorable Grainger McIlhany, page 13   (C-52)


          ”
           . . . When, as an engineering fact, it is
     necessary to replace, raise, and strengthen the
     Inside bulkheads of the retaining wall In order
     to support the outside seawall, It is our opinion
     based on th foregoing authorities that such
     constructioi would constitute 'an &sentlal and
     necessary and component part of th; seawall pro-
     ject' at Port Lavaca, Texas. . . .
          Attorney General's Opinion No. o-6817 (1945) cites
pertinent authorities as follows:
           ,I    In the case of the First National
     Hank of Port Arthur v. City of Port Arthur et
     al, 35 S.W. (2d) 258, the Beaumont Court of Civil
     Appeals said:
            "'Counsel for appellees, in their brief,
     call our attention to a number of general rules
     of construction pertaining to constitutional
     provisions. One of these rules Is that referred
     to by our Supreme Court In Walker v. Meyers, 114
     Tex. 225, 266 S.W. 499. The general rule there
     referred to is that contemporaneous and practical
     construction of constitutional provisions by the
     Legislature   in the enactment of laws should have
     great weight and give rise to a natural presump-
     tion that the legislative construction rightly
     Interprets the meaning of the provision. In
     connection with this general rule, counsel for
     appellee in their brief direct our attention to
     the several acts at different times of the Texas
     Legislature granting aid to Gulf Coast cities
     under section 8, article 11, of the Constitution.
     One of these is the act granting aid to the city
     of Galveston shortly after the destructive gulf
     hurricane in 1900. Another is the act grantlv
     aid to the city of Corpus Christi; another is+the
     act granting aid to the city of Freeport; another
     is the act granting aid to the city of Rockport;
     another is the act granting aid to the city of
     Port Lavaca; another is the act granting aid to
     the city of Aransas Pass. In this connection
     counsel contend, and undertake to sustain the
     contention, that the Legislature in each of the
     instances above stated gave a broad and liberal



                              -249-
Honorable Grainger McIlhany, page 14 (C-52)


    construction to section 8 of article 11 of the
    Constitution and that the Legislature in those
    instances did not construe that section to limit
    state aid to Gulf Coast cities for the construc-
    tion of sea walls and breakwaters, that is, to
    those physical structures themselves, but con-
    strued section 8 in a broad way so as to give
    aid to those Gulf Coast cities In the construc-
    tion of works not actually a part of a sea wall
    OP breakwater. We shall not dwell upon this
    suggestion of counsel, though we are impressed
    with the force of this suggestion and the argu-
    ment in connection. Other general rules of
    interpretation and construction may be said to
    be the following:
         "'1. The intention of the makers of the
    Constitution will be ascertained, and when that
    intention Is so ascertained, whether expressed
    in plain language or not, such intent becomes as
    much a part of the law as if it had been expressed
    in plain and unequivocal terms. This was the rule
    announced by our Supreme Court In Mills County v.
    Lampasas County, 90 Tex. 606, 40 S.W. 403.

          "'2. Legislation, organic or statutory, must
     be reasonably construed and in a manner not repug-
     nant to common sense. This rule Is announced In
     Queen Insurance Co. v. State, 86 Tex. 250, 24 S.W.
     397, 22 L.R.A. 483, and in St. Louis S.W. Railway
     Co. of Texas v. Tod, 94 Tex. 632, 64 S.W. 778.
          "'3. A public grant for a public advantage
     should be liberally construed in an endeavor to
     accomplish the purpose of the grant. This rule
     was announced In Aransas County v. Coleman-Pulton
     Pasture Co., 108 Tex. 216, 191 S.W. 553.
          “‘4.  In construing a law it will be presumed
     that the creators of same are familiar with the
     conditions to be relieved against and the condition
     of the county to which the act Is applicable.
     Winona & St. P.R. Co. v. Barney, 113 U.S. 625, 5
     S.Ct. 606, 28 L.Ed. 1109.




                             -250-
.




    Honorable Gralnger McIlhany, page 15   (C-52)


              "'5 . If possible, that construction will be
         adopted which will promote the public Interests
         in accord with sound economic policy. This rules
         was referred to in State v. DeGress, 72 Tex. 242,
         11 S.W. 1029.
              "'6.  In the construction of Constitutions,
         as well as statutes, the powers necessary to the
         exercise of power clearly granted will be Implied.
         This rule was referred to In Texas Cent. R. Co. v.
         Rowman, 97 Tex. 417, 79 S.W. 295.
              "'7.  Where a general   power Is conferred, every
         particular power necessary   for the exercise of same
         is also conferred, whether   expressly granted or not.
         This is the rule laid down   in Cooley's Constitutional
         Limitations (8th Ed.) vol.   1, page 138.
              "'In addition to the above general rules of
         interpretation, we think that the rule announced
         by our Supreme Court, through Chief Justice Phillips,
         in Aransas County et al. v. Coleman-Fulton Pasture
         Company, 108 Tex. 216, 191 S.W. 553, 554, where
         section 52 of article 3 of our Constitution was
         under construction, Is the rule of greatest appllca-
         tlon to the facts in this case. It is as follows:
              "qnThe spirit, purpose and scope of the
         particular provision are all to be consulted in
         the effort to determine with certainty the mean-
         ing of its terms."
              n'Applying that rule In this case, we have no
         hesitancy in concluding that the expenditure by
         the city of Port Arthur of Its bond money above
         mentioned for the work done by the Central Con-
         struction Company in constructing the Stllwell
         Storm Drain was not prohibited and would not be
         in violation of section 8, article 11, of the
         Constitution. The spirit and the purpose that
         actuated the framers of that article was mainly
         the protection of the lives and property of people
         in cities situated on the Gulf Coast and always
         exposed to danger and hazard of the sea. Protec-
         tion to those people and their property, we say,




                                   -251-
    Honorable Grainger McIlhany, page 16 (C-52)


         was the main and controlling thought, and in
         addition to that, and as incidental to that,
         was the benefit that would redound and accrue
         to the people of the whole state of Texas by
         protecting such of its citizens as live in the
         exposed cities. It was known that many Texas
         counties and cities were so situated upon the
         Gulf Coast as to be constantly exposed to the
         ravages and destruction of gulf hurricanes, and
         the purpose of the framers of the article was
         to give protection, as far as possible through
         human skill and agency, to the lives and prop-
         erty of our citizens exposed to such hazards~.
              "'We think that the trial court, under the
         evidence in this case, was correct in finding
         and concluding that the construction of the
         Stilwell Storm Drain, as contemplated, was an
         essential and 'necessaryand component part of
         the sea wall project at Port Arthur, and that
         therefore the Stilwell Storm Drain when com-
         pleted will be a part of the sea wall in the
         sense in which that term Is used in section 8,
         article 11, of the Constitution.' . . .ll
              In the case of City of Aransas Pass et al. v. Keeling,
.   112 Tex.,339, 247 S.W. 818, the Supreme Court In the op+on   by
    Justice Greenwood stated:
              "This suit is brought by the city of Aransas
         Pass and by the mayor of said city against the
         Attorney General of the state of Texas, for a
         mandamus to compel the approval of bonds, issued
         by the city in the principal sum of $213,000.
              "The Thirty-Sixth Legislature, at its third
         called session, passed an-act (Acts 36th Deg.
         flg2g 3d Called Seas. c. 22) which became effec-
         tive on September 17, 1920 entitled:
              "'An act to aid the City of Aransas Pass
         in constructing and maintaining sea walls, break-
         waters and shore protections In order to protect
         said city from calamitous overflows, by donating
         to it the eight-ninths (8/g) of ad valorem taxes




                                  -252-
Honorable Grainger McIlhany, page 17   (C-52)


     collected on property and from persons In San
     Patriclo county for a period of twenty years,
     providing a penalty for the misapplication of
     the moneys thus donated, and declaring an
     emergency.'
          "* * *

          "The Attorney General urges that the dona-
     tion act is unconstitutional and void for the
     following reason:
          "* * *

          "Second. That the act violates section 51
     of article 3 of the Constitution, denying power
     to the Legislature to make any grant of public
     money to a municipal corporation.
          "+ * I

          "The act makes no grant of public money as
     forbidden by section 51 of article 3 of the Consti-
     tution. The state here bestows no gratuity. The
     people of the state at large have a direct and
     vital interest In protecting the coast cities from
     the perlls of violent storms. The destruction of
     ports; through which moves the commerce of the
     state, is a state-wide calamity. Hence sea walls
     and breakwaters on the Gulf coast, though of spe-
     cial benefit to particular communities, must be
     regarded as promoting the general welfare and
     prosperity of the state. It is because of the
     special benefits to particular cities and counties
     that special burdens on property within their
     boundaries, through taxation, are justified. But
     the state, in promoting the welfare, advancement,
     and prosperity of all her citizens or in aiding
     to avert injury to her entire citizenship, cannot
     be regarded otherwise than B;a performing a~
     proper function of state government. Cities or
     counties furnish convenient and appropriate agen-
     cies through which the state may perform duties
     resting on the state, in the performance of which
     the cities or counties have a special Interest.




                              -253-
                                                             .   .




Honorable Gralnger McIlhany, page 18 (C-52)


    The use of the cities or counties as agents of
    the state in the discharge of the state's duty
    is in no wise inhibited by the Constitution in
    section 51 of artlcle,3. Bexar County v. Linden,
    110 Tex. 344 to 348, 220 S.W. 761; City of
    Galveston v. Posnainsky, 62 Tex. 127, 50 Am.
    $p, ;17Q3;eaver v. Scurry County (Tex.Civ.App.)
        . .     .
         "We have concluded that section 8 of article
    11 of our Constitution expressly authorized the
    Legislature to grant such aid to the counties and
    cities on the Gulf coast In the construction of
    sea walls and breakwaters, as was extended to
    Aransas Pass. This section reads:"
         Section 8,   Article XI quoted above.
          "+ * +

          "While these words admit of the lnterpreta-
    tlon that state aid to these works was to be ex-
    tended only by donation of the public domain in
    a mode to be determined by the Legislature, yet
    they are obviously as susceptible of the meaning
    that the Legislature was empowered to extend state
    aid in any different manner adopted by the Legls-
    lature. Viewed in the light of other related con-
    stitutional provisions, we have no~doubt that the
    latter Is the true meaning to be ascribed to the
    section. The express wording of the section
    recognizes a state interest and a state obligation
    ‘in the protection of coast settlements from Calamf-
    tous overflows. It must have been known that before
    many years the public domain would be exhausted.
    It would be unreasonable to assume that the framers
    of the Constitution did not intend to make,it possible
    for the Legislature to discharge anobligation which
    would be just as binding after as before the exhaus-
    tion of the public domain. The provision for state
    aid immediately follows provision for the construc-
    tion by coast cities and counties of sea walls and
    breakwaters through taxation and bond Issues. By
    section 10 of Article 8 the Legislature was ex-
    pressly empowered to entirely release state and




                               -254-
.   -




        Honorable Grainger McIlhany, page 19 (C-52)


             county taxes 'in case of great public calamity.'
             Can sound reasons be given for asserting that it
             was intended to authorize the state to extinguish
             all obligations in certain subdivisions of the
             state for the payment of state and county taxes,
             for such period as the Legislature might deem
             necessary, because of great public calamity, and
             yet not allow relief to the sufferers from such
             calamity and benefit to all the people of the
             state through the utilization of the same taxes
             in building protective works? Any doubt as to
             the Intent of the Constitution to authorize the
             grant of public money in case of public calamity
             is removed by the language of original section 51
             of article 3 of the Constitution. For it expressly
             provided that the denial to the Legislature of the
             power to make 'any grant, of public money' should
             'not be so construed as to prevent the grant of
             aid in case of public calamity.' Keeping In mind
             these related provisions of the Constitution, It
             seems clear to us that It was the design of sec-
             tion 8 of article 11, when it was adopted, toem-
             power the Legislature to give the state's aid, by
             grant of the public domain or state taxes, or in
             any other appropriate manner, to the construction
             by coast cities and counties, through bond issues,
             of protective sea walls and breakwaters; and that,
             In the exercise of this power, the Legislature was
             not limited by the terms of section 6 of article
             8, forbidding the appropriation of publlcnmoney
             for a longer period than two years. . . .
             (Emphasis added.)
                  In 1930 the Legislature passed House Bill No. 90,
        Chapter 42, "CONFERRING AUTHORITY ON CITY OF CORPUS CHRIST1
        RELATING TO CHANNEL AND SHIPPING DISTRICT."
                  Section 1 provided:
                  "That section 6 of Chapter 68, General Laws
             of the 36th Legislature, Regular Session, 1919,
             be amended so that said Section shall hereafter
             read as follows:
                  n      'The city of Corpus Christ1 Is hereby
             authorizdd'to adjust by suit.or otherwise or adopt
             compromise by ordinance, determining, defining and


                                        -255-
                                                                  -   .




Honorable Grainger McIlhany, page 20 (C-52)


    fixing the boundary line between the area patented
    by virtue of said Chapter 68'and the private prop-
    erty and the rights and claims of property owners
    along the shore line of Corpus Christ3 Bay and
    thereby adjust and quiet the title to said
    patented area for the purposes designated in
    said Chapter 6B ) .and adjust and quiet the title
    of said private property owners.'"
          House Bill No. 165, Chapter 40, supra, passed by the
Legislature In 1941 covered the area where the Glasscock Fill
is located, as shown in the description of the property covered
by the 1941 Act. It is true that the caption of the 1941 Act
refers to "certain land hitherto submerged by the waters of
Corpus,Christi Bay."
          Webster's New International Dictionary, 2nd Edition,
Unabridged, defines the word hitherto as, %p to this time; as
yet; until now." Black's Law Dictionary, 4th Edition, defines
the word hitherto as, "in legal use this term always restricts
the matter In connection with which it Is employed to a periot
of time already passed. Mason v. Jones, 13 Barb. (N.Y.) 479.
          Section 1 of the 1941 Act refers to "all land within
the area hereinafter mentioned, hitherto or now lying and situ-
ated under the waters of Corpus Christi Bay."
          As stated above, the Glasscock Fill Area was not
filled in until 19%.   Accordingly, it is consistent that the
1941 Act included the Glasscock Fill Area even though it was
submerged at the time of the Act. As shown above, the City of
Corpus Chrlsti, Texas, conveyed the area now known as the
Glasscock Fill Area, to C. M. Gordon et ux by deed dated March
15, 1937.
          Section   2 of the 1941 Act, supra, provides:
         "All exchanges of property and conveyances
    hitherto made by the city of Corpus Christ1 to
    property owners within the area described In Sec-
    tion 1 are hereby ratified; and such property is
    confirmed, relinquished, and granted unto the
    respective assignees of the City of Corpus Christi,
    and to their heirs, successors and assigns, with-
    out limitation as to use thereof to be made by
    them."



                                -256
Honorable Grainger McIlhany, page 21 (C-52)


          It Is therefore apparent that this section of the 1941
Act Is applicable to the Glasscock Fill Area conveyed by~the
City of Corpus Christi to C. M. Gordon et ux on March 15,    1937.
          As shown above, Section 2 of the resolution by the
City Council of the'City of Corpus Christl, approved April 7,
1937, authorizing this conveyance to C. M. Gordon et ux, pro-
vided:
          "The fact that the Bluff along Ocean Drive
     in the city limits of the City of Corpus Christ1
     has been eroding and is subject to continued erosion
     endangering the safety and protection of Ocean Drive,
     along the west boundary line of the lands herein re-
     ferred to, and that the exchange of such property
     rights would encourage and enable the protection of
     such property and Ocean Drive, and that the,protec-
     tion of the properties involved creates a public
     emergency and a ublic Imperative necessity . . .'
     (Emphasis added.P
          As above stated, the deed by the City of Corpus
Christi, Texas, to C. M. Gordon et ux, provides:
          " . . . Grantees shall, at his own cost and
     expense, raise and fill the area herein conveyed
     to city grade level and shall conform to the Bay
     Front Improvement Plan of the City of Corpus
     Chrlsti, when adopted, in the use and improve-
     ment of the property conveyed to them In this
     deed." (Emphasis added.)
          In the First National Dank of Port Arthur v. City of
Port Arthur, et al case, supra, the opinion states:
                Counsel for appellant and the Attorney
    General in-this connection direct our attention to
    the definition of the term 'sea wall,' as given by
    the New Century Dictionary, volume 4, page 411.
    As there ~defined, a sea wall is:
          "'A cliff by the sea, a wall formed by the
     sea; a strong wall or embankment on the shore
     designed to prevent encroachment of the sea to
     form a breakwater. An embankment of stone
     thrown up by the waves on a shore.'"



                               -257-
Honorable Gralnger McIlhany, page 22 (C32)


          It Is clear, therefore, that the exchange and the
conveyance by the City of Corpus Christi to C. M.,Gordon ex ux
of the area now known as the Glasscock Fill Area, as part of
the exchange, was for public purposes In connection with the
Pay Front Improvement Plan of the City of Corpus Chrlstl, and
was In exchange for land needed by the City of Corpus Christ1
for Its Bay Front Improvement Plan, as contemplated by the
statutes, and therefore was for a public 'purpose.
          In view of the above authorities and reasons stated,
It is therefore clear that this conveyance by the City of
Corpus Christ1 to C. M. Gordon et ux of the area comprising the
Glasscock Fill was for a public purpose and therefore is not In
violation of Article 3, Section 51 of the Constitution of Texas,
which provides:
          "Sec. 51. The Legislature  shall have no
     power to make any grant or authorize the making
     of any grant of public moneys to,any individual,
     association of lndivlduals, mu$clpal or other
     corporations whatsoever; . . .
and Is not in violation of Article 3, Section 44 of the Consti-
tution of Texas, which provides:
          “The Legislature shall . . .'nor grant, by
     appropriation or otherwise, any amount of money
     out of the Treasury of the State, to any indlvid-
     ual, on a claim, real or pretended, when the same
     shall not $ave been provided for by pre-existing
     law; . . .
and is not contrary to the holding of the court in State v.
Perlstein, et al, 79 S.W.2d 143 (Civ.App. 1935, error dlsm.),
which held under the facts in that case a conveyance of State
land to a private Individual void '. . . because the officers
executing it had no authority in law to do so. . . .'
          Therefore, in view of the above authorities, when
this land was originally granted to the City of Corpus Christ1
under the 1919 Statute, supra, the grant was made with the
condition subsequent that the seawall be completed as pro-
vided In the statute.  It appears that the seawall or break-
water has been completed as contemplated by the statute and
thereafter a patent was issued by the State of Texas to the




                             -258-
_   ,.




         Honorable Gralnger McIlhany, page 23 (C-52)


         City, providing that the land was bought and fully paid for on
         the application of,City of Corpus Chrlsti. Even in the event
         of a condition broken,~the remedy of a grantor Is by way of
         trespass to try title action to recover possession and not by
         ipso facto reverter. The exchange was for public purposes and
         in furtherance of the State's Interest and the State's obllga-
         tlon to protect coast settlements from calamitous overflows,
         in connection with the Corpus Chrlsti Ray Front Improvement
         Plan, and the conveyance was for land needed by the City as
         contemplated and authorized by Section 8 of Article XI, and
         as authorized and confirmed by the statutes.  The 1930 Act
         authorized the exchange for such public purposes and the 1941
         Act validated It, and the Legislature stated in the Act that
         the exchange was %ecessary to the completion of the City's
         bay front Improvement and storm protection project." This ex-
         change of properties asauthorized and later ratified by the
         Legislature was clearly for the purpose for which the original
         grant was made.
                   Therefore, your first question is answered that the
         Glasscock Fill Area has not reverted to the State. Your second
         question Is answered that the Glasscock Fill Area has been law-
         fully conveyed by the City of Corpus Chrlsti, as it was for ex-
         change of land needed to further the State's interest and the
         State's obligation to protect coast settlements from calamitous
         overflows, and such exchange was for a State public purpose.
         Your third question Is answered that the State of Texas presently
         owns all mines and minerals, and mineral rights including oil
         and gas in and under the Glasscock Fill Area, together with the
         right to enter thereon for the purposes of development.

                                   SUMMARY
                   1. The Glasscock Fill Area has not reverted
              to the State.
                   2. The Glasscock Fill Area has been lawfully
              conveyed by the City of Corpus Christl, as It was
              for exchange of land needed to further the State's
              interest and the State's obligation to protect
              coast settlements from calamitous overflows, and
              such exchange was for a State public purpose.




                                      -259-
                                                           .   _




Honorable Grainger McIlhany, page 24 (C-52)


         3.  The State~of Texas presently owns all
    mines and minerals, and mineral rights lncluding~
    oil and gas in and under the Glasscock Fill Area,
    together with the right to enter thereon for the
    purposes of development.
                               Yours very truly,
                               WAGGONER CARR
                               Attorney General of Texas


                               BY            I
                                    Ben M. HCrrisod
                                    Assistant

BMS:afg
APPROVESD:
OPINION COMMITTEE
W. V. Geppert, Chairman

H. Grady Chandler
J. S. Bracewell
Edward Moffett
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone




                              -260-
