KEY, Associate Justice.
Questions of law only are presented by this appeal. These are:
First. Under the Constitution and other laws in force at the time this ■case was disposed of in the District Court, to-wit, April 5, 1892, had that court jurisdiction to issue a writ of injunction against the Commis
sioner of the General Land Office, he being the head of one of the executive departments of the State Government?
Second. Eliminating the first question, as against a general demurrer, does the plaintiff’s petition state such facts, if true, as will entitle it to-an injunction ?
1. As settling the question of jurisdiction adversely to the plaintiff in error, defendants in error have invoked article 3433a, section 4, Sayles’ Civil Statutes (passed February 15, 1891), which reads thus:
‘‘ No court of this State shall have power, authority, or jurisdiction to issue the writ of mandamus or injunction, or any other mandatory or compulsory writ or process, against any of the officers of the Executive Departments of the Government of this State, to order or compel the performance of any act or duty, which by the laws of this State they or either of them are authorized to perform, whether such act or duty be judicial, ministerial, or discretionary.”
It is contended in behalf of the plaintiff in error, that if the. Constitution of the State, as it existed at the time this statute was enacted, conferred upon the District Courts authority to issue writs of injunction against the Commissioner of the General Land Office, that it was not within the power of the Legislature to curtail the jurisdiction of these-courts by a statute.
There is much force in this contention, but it is not deemed necessary to pass upon the constitutionality of this statute, because in our opinion it has no application to the facts of this case. This law does not, in terms- or by implication, prohibit the issuance of writs of injunction against the officers of the Executive Departments of the State in all cases; but the inhibition is, by the very words of the statute, limited ■ to such writs and process as are issued “ to order or compel any act or duty, which by the laws of the State they or either of them are authorized to perform, whether such act or duty be judicial, ministerial or discretionary.”
In this suit it is not sought to compel either of the defendants to do any act or perform any duty which they are authorized to perform; but on the contrary, the gist of the plaintiff’s case lies in the averment that-the acts complained of have been, or will be, committed without and in excess of lawful authority.
Manifestly, if prior to the passage of the statute in question the District Courts were clothed with power to restrain the officers designated therein from the commission of acts without and beyond lawful authority, this statute was not intended to abridge or affect such power.
The defendants, by excepting to the court’s jurisdiction, deny its power to determine whether or not the acts are within the scope of lawful authority; and this denial rests solely upon the fact, that the petition shows one of the defendants to be the head of one of the executive departments of the State. This contention involves the proposition, that if such offi
cers choose to exceed their powers, however much the excess or great the injury, the courts can not interpose to prevent them. If the plaintiff was conceding the power of the Commissioner of the General Land Office to act in the matter, and asking the court to compel him to act in a particular manner, the statute referred to would have application, and it would be necessary to determine its validity. But such is not the case. The petition virtually admits that if authority exists for the performance of the acts the plaintiff has no case.
With these observations, we pass from the consideration of this statute to other questions in the case.
Our State Constitution, in prescribing the jurisdiction of the District Courts, among other things, provides, that “said courts and the judges thereof shall have power to issue writs of habeas corpus, mandamus, injunction, and certiorari, and all writs necessary to enforce their jurisdiction.” Const. 1876, art. 5, sec. 8. This same section also declares, that these tribunals shall have jurisdiction “ of all suits, complaints, or pleas whatever, without regard to any distinction betwegn law and equity, when the matter in controversy shall be valued at or amount to five hundred dollars, exclusive of interest;” and that they “shall have general original jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not provided by law or this Constitution, and such other jurisdiction, original and appellate, as may be provided by law.”
Anterior to the adoption of the amended Judiciary Article, in 1891, the Constitution contained the same provision in reference to the issuance of writs of injunction that it does now; but the last clause above quoted was added to and became part of the organic law by the amendment. If entitled to no other force, the sweeping language of this latter clause indicates that the purpose was to enlarge, and not restrict, the powers of these tribunals.
In the entire section conferring District Court jurisdiction, no word can be found indicating a purpose to restrict the power to issue injunctions and other designated writs, as to either subjects matter or parties, unless it be the first clause above quoted conferring general jurisdiction, without regard to any distinction between law and equity, when the matter in controversy shall be valued at or amount to 8500; and it can not be pretended that it prescribes any limitation as to parties. In fact, it constitutes no limitation whatever on the power to issue the several writs enumerated in the other clause. This was expressly decided in Anderson County v. Kennedy, 58 Texas, 616.
In that case, construing the section of the Constitution now under consideration, the court say: “It would seem that the express power to issue a writ of injunction, other express power being given to issue such writs as might be necessary to enforce the jurisdiction of a court otherwise given, must carry with it the power to determine when and whether
■or not
facts exist which authorize it to issue; if so, this power to inquire is of the very essence of jurisdiction.”
The opinion in that case shows how distinctively independent of other provisions of the Constitution (in reference to subjects matter at least) is the clause conferring jurisdiction on District Courts to issue injunctions and other designated writs. However, it does not necessarily follow from this, that other provisions of the Constitution may not limit and control the clause referred to, as to the persons against whom injunctions may issue. A Constitution must be construed as an entirety; and in determining the meaning of a given provision, all other provisions in anywise bearing on the same subject are to be considered.
In accordance with this wise canon of construction, we now turn to ■certain other sections of the Constitution, invoked by counsel for defendants, as shielding the Commissioner of the General Land Office from the ■general power conferred upon District Courts to issue injunctions.
“ The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to-wit, those which are legislative to one, those which are executive to another, and those which are judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in instances herein expressly permitted.” Const., art. 2, sec. 1.
“ The Executive Department of the State shall consist of a Governor, who shall be the chief executive officer of the State, a Lieutenant-Governor, Secretary of State, Comptroller of Public Accounts, Treasurer, Commissioner of the General Land Office, and Attorney-General.” Const., ■art. 4, sec. 1.
As disclosed by the several conflicting opinions in Bledsoe v. International Railway Company, 40 Texas, 537, and Kuechler v. Wright, same volume, page 600, widely divergent views have heretofore prevailed ■among the members of our Supreme Court as to the meaning and effect ■of section 1, article 2, and section 1, article 4, of the Constitution, as above quoted; and although a majority of the court held in Railway v. Gross, 47 Texas, 428, that the District Court had no jurisdiction, by mandamus or otherwise, to control the Commissioner of the General Land Office in the issuance of land certificates, it can hardly be said, that the law is clearly settled by that court, that writs of mandamus will not lie against the heads of the Executive Department to compel the performance of purely ministerial duties. In fact, it appears to have been the opinion of Judge Gould, in the case last cited, that such a writ would issue to compel the issuance of a patent to land; and as shown by his able opinion in Kuechler v. Wright, supra, Judge Moore, another member of the court, was of the opinion, that the heads of the Executive Department could be compelled by mandamus to perform any purely minis
terial duty. But even if the law be regarded as settled against the power of District Courts to issue writs of mandamus against the heads of the Executive Department, in our opinion, this does not determine the question of authority to issue writs of injunction. There is a vast difference between coercing or restraining an officer in a matter within the scope of his authority, and exercising similar control over him in a matter clearly outside of and beyond his authority. The authority of District Courts to issue writs of habeas corpus is conferred by the same clause of the Constitution that authorizes them to issue writs of injunction; and the one, in so far as the question of jurisdiction is concerned, occupies no higher plane than the other. Could it be successfully contended, therefore, that an application for a writ of habeas corpus, which otherwise would be promptly granted, must be refused by a district judge if it disclosed the fact that the restraint complained of was imposed by the head of one of the Executive Departments of the Government ? Assuredly not. If such a construction of the Constitution should obtain, a citizen might be unlawfully imprisoned for years by the chief officer of one of the Executive Departments, acting under pretended authority of his office, and the courts would be powerless, though appealed to daily, to afford relief. Such a construction can not be sound.
It may be that certain provisions in the Bill of Rights, designed for the protection of liberty, will aid the construction which disallows exemptions from the writ of habeas corpus; but if that source be looked to for light, we find provisions there intended for the protection of property rights also.
But we have referred to writs of habeas corpus, not only to show the analogy on the question of jurisdiction to issue writs of injunction, but also to illustrate the fallacy of the proposition (necessarily involved in the plea denying jurisdiction), that because the Constitution separates the powers of the State Government into three distinct departments, therefore certain executive officers, when claiming to act officially, can not be controlled or interfered with by the courts, however much they may exceed their powers, and however great may be the injury resulting from their acts.
The fact that the Constitution divides the powers of the State Government into three distinct departments, and prohibits officers of one department from exercising any power properly attached to either of the others, does not support the proposition, that the heads of the Executive Department are placed beyond the control of the judiciary when they themselves propose to exercise powers not attached to the Executive Department, and from the exercise of which harm would result. Interference in such an instance, by either habeas corpus or injunction, is not an exercise by the judge of a power properly attached to the Executive Department.
To prevent the assumption of authority which under the law does not exist, is not usurpation of such authority.
If the high duties and prerogatives of his office absolutely and under all circumstances shield the Governor of the State from District Court-jurisdiction to issue and enforce remedial writs, which we do not decide, there is no such relation existing between the Chief Executive and the Commissioner of the General Land Office as will entitle the latter to like immunity.
We conclude, therefore, that the District Court had jurisdiction to try the case.
2. Does plaintiff’s petition state a cause of action ?
It is alleged, that the threatened acts are about to be committed by the-defendants without authority of law. In determining the sufficiency of the petition, however, this averment is not to be taken as true, unless the facts alleged show want of authority.
April 22, 1879, the Legislature passed an act prescribing the manner of ascertaining county boundaries. Laws 16th Leg., p. 137. The eighth section was amended in 1885, but this amendment was repealed in 1889, and the original section re-enacted. Laws 21st Leg., p. 42. It and the-seventh section read as follows:
‘ ‘ Section 7. That if either of the surveyors appointed to run and mark such line shall fail to attend at the time and place appointed, the one in attendance shall proceed alone to perform the duties assigned him, and make his report to the County Court of the county employing him, which, being approved by such court, shall be recorded as evidence of the line-in question; and the line so surveyed and marked shall thereafter be regarded as the true boundary line between the counties.” Sayles’ Civ. Stats., art. 691a.
“ Section 8. That should the surveyors above provided for fail to-agree as to the true boundary line between their respective counties, the fact of such disagreement, with a full statement of the questions at issue-between them, shall be by them reported to the Commissioner of the General Land Office, whose duty it shall be to examine the disputed matter at once, and from such data as the maps and archives of his office furnish, shall designate to such surveyors the line to be run, stating at what specific point they shall begin and to what specific point they shall run, adhering as nearly as possible to the line designated in the act creating such county line, which instruction shall be authority for said surveyors to run such line, and the line so run as above directed shall thereafter be the true dividing line between said counties.” Sayles’ Addendum, art. 691b.
The concluding clauses of these two sections are in substantially the same words, and obviously have the same meaning.
Everything that can be said in support of the finality and conclusiveness of proceedings terminating under section 7, applies with equal force to such as terminate under section 8, which declares that the line so established under the direction of the Commissioner of the General Land Office “
shall thereafter be the true dividing line between said counties.”
In Jones v. Powers, 65 Texas, 207, section 7 was construed, and it is there said: “Under all the laws made for the purpose of furnishing a method by which the lines of a county may be actually established upon the ground, it may be held, if the lines have once been definitely fixed upon the ground by an actual survey, made, reported, and approved as required by the statute, that a County Court has no power to direct another survey to be made and thereby establish a boundary line different from the one established at some former period. * * * None of the statutes seem intended to give power from time to time to a County Commissioners Court to correct what may have been incorrect in the establishment of a county line on the ground, but seem intended to give a means by which the line or lines may be made definite and certain, and when so rendered, in accordance with the statute, whether correctly run and marked or not, the statutory declaration, that ‘ the line so run and marked shall thereafter be regarded as the true boundary line between the counties,’ ought to be given full effect and held as a prohibition to-any further action looking to the establishment of any other line.”
We can not assent to the proposition, that as often as surveyors appointed by contending counties certify their disagreements to the Commissioner of the General Land Office, that officer has jurisdiction in the premises, and that he is the sole judge of the extent of his powers.
It may be true in judicial proceedings, especially in courts of general jurisdiction, that the fact of a former adjudication of the matter in con- • troversy between the same parties can only avail as a plea in bar, and. does not affect the question of jurisdiction.
But such rule can have no application to the action of the Commissioner' of the General Land Office establishing a disputed line between counties. Being an executive officer, it was not within the power of the Legislature to constitute him a court; and the statute in question does not attempt so to do.
He is merely authorized, in certain contingencies, to look to certain sources for light, and then direct how a line shall be surveyed; and the-law conferring his authority declares that his action shall be final. Though-the statute may remain in force, and the power exist as to other counties,, having once exercised it as to particular counties, thereafter, as to them,, it is as completely wanting as though it had never existed.
The petition alleges that in 1882, in an effort to establish the line in dispute, under the statute, and in conformity therewith, a disagreement between the surveyors representing Hunt and Kaufman Counties was duly
certified to the Commissioner of the General Land Office of the State, and that he, in accordance with the statute, caused the line to be surveyed, marked and established on the ground, and that no uncertainty exists as to its location as thus established.
If these facts be true, and in considering the sufficiency of the petition they are to be so regarded, then by such action of defendant McGaughey’s predecessor all jurisdiction of his office over the matter in controversy between the two counties was exhausted; and any action on his part in reference thereto would be beyond the scope of his power, and void.
Courts of equity have sometimes refused to grant relief against void acts and instruments, upon the ground, that being void, they are harmless, and therefore relief would be superfluous. The better rule appears to be, that when the thing complained of does not disclose its own infirmity, or when, though void, it has the semblance of legality, equity will afford appropriate relief. Day Land and Cattle Co. v. The State, 68 Texas, 527.
Under the Constitution and laws of this State, the sale of a homestead under execution is void; yet such sales may be enjoined. Gardner v. Douglass, 64 Texas, 76; Van Ratcliff v. Call, 72 Texas, 491.
Equity will also restrain the sale of land levied on to collect a tax assessed without authority of law. Court v. O’Connor, 65 Texas, 334; Davis v. Burnett, 77 Texas, 3; Free v. Scarborough, 70 Texas, 672.
,In discussing equitable relief against the acts of public officers, a recognized authority says:
“The preventive jurisdiction of equity extends to the acts of public officers, and will be exercised in behalf of private citizens who sustain such injury at the hands of those claiming to act for the public as is not susceptible of reparation in the ordinary course of proceedings at law. And it may be stated as a general rule, that when public officers, under color and claim of right, are proceeding to impair either public or private rights, or when their proceedings will result in serious injury to private citizens, without any corresponding benefit to the public, or when the aid of equity is necessary to prevent a multiplicity of suits, an injunction will be allowed. * * * In applications for relief by injunction against the acts of public officers, the determining point is, ordinarily, whether they are acting within the scope of their authority, or whether they are transcending that authority. And while equity will not interfere while such officers are acting within the authority conferred upon them by law, to determine whether their action is good or bad, yet if they assume powers over property which do not belong to them, and infringe upon or violate the rights of citizens under pretense of such assumed authority, •equity has jurisdiction to interfere for the protection of the citizen.” High on Inj., 3 ed., secs. 1308, 1309. See, also, People v. Canal Board, 55 N. Y., 395.
Applying these rules to the plaintiff’s petition, we believe, as against a general demurrer, it states a cause of action. If the line has already been legally established, as alleged, and the defendants are allowed to disturb that line under pretended authority, much confusion and annoyance, and perhaps litigation, would result among the people residing in the disputed territory; and plaintiff, Kaufman County, would in all probability be greatly harassed, hindered, and delayed, and involved in a multiplicity of legal proceedings, if not defeated, in the collection of some of its legitimate revenues.
It is contended in behalf of the defendants, that a court of equity can not rightfully interfere with executive officers in matters requiring the exercise of judgment and discretion, and that for this reason the demurrer to plaintiff’s petition was properly sustained.
If the Commissioner of the General Land Office, under the facts stated in the petition, had the power to act in the premises, it may be that the courts should not attempt to control his action; but being without authority to act at all, it is immaterial how much discretion the performance of the unauthorized act may involve.
If upon a trial on the merits the facts alleged in plaintiff’s petition are shown to be true, an injunction should issue restraining the defendants, from in any manner attempting to change or disturb the line between Hunt and Kaufman Counties as established under direction of the former Commissioner of the General Land Office.
The judgment of the District Court is reversed and the cause remanded.
Reversed and remanded
Delivered February 15, 1893.
Motion for rehearing refused.