Burguete v. Del Curto , 49 N.M. 292 ( 1945 )

We have stated in more than one case that the Commissioner of Public Lands has "absolute dominion" over this state's lands. We qualified this in Ellison v. Ellison, 48 N.M. 80, 146 P.2d 173, by stating "subject to an appeal" of course to the State Supreme Court. But this dangerous doctrine should be clarified. The Commissioner has absolute dominion over the public lands only in the sense that he is the only one who is authorized to sell or lease such lands. The fact is the law sells the land, and the Commissioner has only such affirmative authority as is given to him under the Constitution and laws of the state as limited by the Enabling Act.

The Commissioner cannot give the land away, nor can he sell or lease it for less than the amount fixed by law.

By the Constitution of the State of New Mexico, Article 21, Sec. 9, the following compact with the United States was adopted:

"This state and its people consent to all and singular the provisions of the said act of congress, approved June twentieth, nineteen hundred and ten, concerning the lands by said act granted or confirmed to this state, the terms and conditions upon which said grants and confirmations were made and the means and manner of enforcing such terms and conditions, all in every respect and particular as in said act provided."

By this compact the Enabling Act became a part of the Constitution of New Mexico. Lake Arthur Drainage Dist. v. Field,27 N.M. 183, 199 P. 112.

Article XIII of the Constitution reads as follows:

"§ 1. All lands belonging to the Territory of New Mexico, and all lands granted, transferred or confirmed to the state by congress, and all lands hereafter acquired, are declared to bepublic lands of the state to be held or disposed of as may beprovided by law for the purposes for which they have been or may be granted, donated or otherwise acquired * * *.

"§ 2. The commissioner of public lands shall select, locate, classify, and have the direction, control, care and disposition of all public lands, under the provisions of the acts ofcongress relating thereto and such regulations as may be providedby law." (My emphasis)

The Constitution of New Mexico appears to have been copied from the Constitution of Idaho; Secs. 7 and 8 of Art. IX of which read as follows:

"§ 7. The Governor, Superintendent of Public Instruction, Secretary of State, and Attorney General * * * shall constitute the State Board of Land Commissioners, who shall have thedirection, control and disposition of the public lands of theState, under such regulations as may be prescribed by law.

"§ 8. It shall be the duty of the state board of land commissioners to provide for the location, protection, sale or rental of all the lands heretofore, or which may hereafter be granted to the state by the general government, under suchregulations as may be prescribed by law, and in such manner as will secure the maximum possible amount therefor." (My emphasis).

So far as the power conferred on the respective authorities is concerned, the language in the two constitutions is the same.

The provisions of the constitution of Idaho were construed before we adopted them, in Balderston v. Brady, 17 Idaho 567,107 P. 493, 494. The board of land commissioners of that state were going to relinquish certain lands to the United States, as there was some question of the state's title, and the legislature passed a resolution ordering the board of land commissioners to so relinquish it. In that action brought to contest the right and authority of the board to release the land to the United States, the court stated that the resolution was not a regulation prescribed by law, and held that the board of land commissioners was not authorized to make such release, and further stated:

"In support of the demurrer the defendant contends that the board is vested by the Constitution (section 7, art. 9) withunqualified power and authority over the lands granted by the United States to the state, and is vested with unlimiteddiscretion in the matter of selection of such lands, and may likewise, in its discretion, relinquish any such lands." (My emphasis).

Secs. 7 and 8, above quoted, are then quoted by the court.

"Now, there can be no question or doubt but that the `direction, control and disposition of the public lands of the state' is vested in the State Board of Land Commissioners. It is equally clear and certain that this power must be exercised`under such regulations as may be prescribed by law.' Both of the foregoing sections of the Constitution contain the same provision as to this limitation of power. * * *

"The real question then recurs: Has the state authorized therelinqishment of sections 16 and 36, and has the State LandBoard the authority to relinquish the state's right to such land? But one answer can be given to this query. The authorityfor such an act cannot be found in either the Constitution orstatute. It is therefore perfectly safe to say that no such power exists. We have hereinbefore said that the board must act under the law. It must find authority in the Constitution and statute for its acts. No such authority as claimed exists, and it is clear that the State Land Board has no power to relinquish or surrender the right or title of the state of Idaho to any of its school lands. If the state's title to any of these lands comprising sections 16 and 36 is questioned or denied by the department, then the duty of the state to secure an adjudication of the matter by the federal Supreme Court is plain and unmistakable." (My emphasis).

The authority of the State Board of Land Commissioners of Idaho was again a question before the Supreme Court of that state in Newton v. State Board of Land Com'rs, 37 Idaho 58, 219 P. 1053. This case is one very much in point. The suit was an action brought by a tax payer for a writ of prohibition against the State Board to prevent the exchange of state lands with the government for other lands. The powers granted by the Constitution and laws of the state were reviewed and construed in an able opinion, in which it was held that the state board had no authority except that specifically given by law and this was limited by the Constitution, the pact between the government and the state, and the Enabling Act.

The authority of the State Board of Land Commissioners of the State of Colorado is limited by Sec. 10 of Art. 9 of that state's constitution, which reads as follows:

"It shall be the duty of the state board of land commissioners to provide for the location, protection, sale or other disposition of all the lands heretofore, or which may hereafter be granted to the state by the general government, under such regulations as may be prescribed by law."

To all intents and purposes, the language is the same as the New Mexico Constitution. It was construed in the case of Walpole v. State Board of Land Com'rs, 62 Colo. 554, 163 P. 848, 850. In that case the court, in discussing the very matter before this court, stated:

"There is nothing in the statute either directly or indirectly authorizing the Board to encumber lands sold with any easement, exception or reservation. It was held in Burke v. Southern Pac. R. Co., 234 U.S. 669, 34 S. Ct. 907, 58 L. Ed. 1527, that when officials authorized to dispose of lands do so by a patent containing unauthorized reservations or exceptions, that the land passes unaffected by such exception or reservation. While the Board is a creature of the Constitution it can dispose of state lands only under such regulations as may be prescribed by law; and it has and can have no powers or functions other than those bestowed upon it by legislative enactment. * * *" (My emphasis)

Webster's International Dictionary defines the word "Dominion" as follows:

"1. Sovereign or supreme authority; the power of governing and controlling; independent right of possession, use and control; sovereignty; supremacy. 2. That which is subject to sovereignty or control; Specif: (a) the estate or domain of a feudal lord, (b) territory governed or over which authority is exercised; . . . . . . . . . Law: absolute ownership."

Dominion is defined as complete property or ownership in a thing. Hull v. Langharn, 3 Cal. App. 310, 39 P.2d 478; Bledsoe v. Fitts, 47 Tex. Civ. App. 578, 105 S.W. 1142. I can imagine no more complete power over property than to have "absolute dominion" over it. Even the state has only a qualified dominion over its public lands, which must be exercised through its legislature; but this legislative power is limited materially by the Enabling Act. The Commissioner of Public Lands is the servant of the state and has no dominion over its lands, and certainly not "absolute dominion" thereover. He has only such authority (and this authority does not rise to the dignity of "dominion") as the agent of the state, to select, locate, classify, control, lease and dispose of such lands as is delegated to him "under provision of the acts of Congress relating thereto, and such regulation as may be provided by law," and he has no other authority.

The statements made in some of our opinions that the Commissioner has "absolute dominion" over the state's lands is wholly erroneous; and may mislead the public and the Commissioner regarding his authority.

Subject to limitations stated in the Enabling Act and the state Constitution, the state has the same power over its lands as that of any other land owner.

The state Constitution has provided that all rules and regulations regarding the sale, lease and disposition of state lands are legislative functions; and the legislature has enacted such rules and regulations, and as a part thereof has provided forums for settling conflicting claims of individuals involving state lands. These statutes are as follows:

"Sec. 8-808. The commissioner (of public lands) shall have power to cancel any lease, contract or other instrument executed by him which shall have been obtained by fraud or executed through mistake or without authority of law. In such case he shall serve upon the party or parties in interest notice, as prescribed by section 5198 (§ 8-847) to show cause before him, upon a date to be fixed in such notice, why such instrument shall not be canceled in accordance with the rules and regulations of the state land office.

"From the decision rendered by the commissioner upon such hearing an appeal shall lie as provided by this chapter in cases of contest."

"Sec. 8-863. Any person, association of persons, or corporation claiming any right, title, interest or priority of claim, in or to any state lands, covered by any lease, contract, grant or any other instrument executed by the commissioner, shall have the right to initiate a contest before the commissioner who shall have the power to hear and determine same. The commissioner shall prescribe appropriate rules and regulations to govern the practice and procedure of such contents."

"Sec. 8-866. Any person aggrieved by any decision of the commissioner may appeal to the district court of any county wherein any portion of the land as to which any such right, title or interest is in controversy, is situated, by filing with the commissioner, within sixty (60) days after the rendering of any such decision, a motion praying such appeal, and also a bond," etc.

"Sec. 8-867. Thereupon the commissioner shall prepare and forthwith transmit to such district court all papers and copies of all such records as shall be necessary to be considered upon such appeal, together with the decision of the commissioner, and the testimony if so demanded by either contestant or contestee. The clerk of said district court shall docket said appeal and papers as a cause in said district court, and thereafter said appeal so docketed as aforesaid shall be tried de novo and determined in said district court as other causes are therein tried and determined. The party prevailing in the district court shall, after the expiration of the time allowed by law within which a supersedeas may be obtained, file with the commissioner a certified copy of the decision of the district court, to be taxed as costs."

"Sec. 8-868. Appeals from the decision of the district court shall be allowed as in civil cases."

It is provided by Section 3(2) of Article IV of the Constitution of the United States that, "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States * * *." The only difference in meaning between this provision of the Constitution of the United States and Section 2 of Article XIII of the Constitution of New Mexico, supra, is that the Congress was left the privilege of naming the official who would have charge of the disposition etc., of lands of the United States; whereas the Constitution of New Mexico provides that an official to be designated "The Commissioner of Public Lands" shall perform the same duties regarding the state's lands; such duties to be exercised "under the provisions of the acts of Congress relating thereto and such regulations as may be provided by law."

It has been held by the Federal courts that they will not interfere with the officers of the government while in the discharge of their duties in disposing of the public lands until after title has passed from the United States, with certain exceptions immaterial here. Gonzales v. French, 164 U.S. 338,17 S. Ct. 102, 41 L. Ed. 458; Gauthier v. Morrison, 232 U.S. 452,34 S. Ct. 384, 58 L. Ed. 680.

It was stated in U.S. v. Schurz, 102 U.S. 378, 396,26 L. Ed. 167, that the Constitution had declared that Congress should have the power to dispose of and make all needful rules and regulations respecting the territory and other property of the United States; that Congress had selected the Secretary of the Interior as the representative of the United States in disposing of its public lands, and that: "This court has with a strong hand upheld the doctrine that so long as the legal title to these lands remained in the United States, and the proceedings for acquiring it were as yet in fieri, the courts would not interfere to control the exercise of the power thus vested in that tribunal."

It was later said in Bockfinger v. Foster, 190 U.S. 116,23 S. Ct. 836, 840, 47 L. Ed. 975, "That the courts will not interfere with the Land Department in its control and disposal of the public lands, under the legislation of Congress, so long as the title in any essential sense remains in the United States."

The legislature of this state, to whom was given the authority to enact rules and regulations for the sale, lease and other disposition of state lands by the Commissioner of Public Lands, has provided a full and complete remedy for anyone to pursue who has been mistreated by another claiming lands to which he is entitled, or by the land department itself, by a contest before the commissioner that may be appealed to the district court and from there to this court in proper cases. Until this remedy is sought and followed the district courts are without jurisdiction to determine the ownership of such leases. Kleinsorge v. Burgbacher, 6 Cal. App. 346, 92 P. 199; Youle v. Thomas, 146 Cal. 537, 80 P. 714.

Regarding the authority of the land department of the United States, see the following cases: Humbird v. Avery, 195 U.S. 480,25 S. Ct. 123, 49 L. Ed. 286; Wilson v. Elk Coal Co., 9 Cir.,7 F.2d 112; Reed v. St. Paul, M. M.R. Co., D.C., 234 F. 123; Central Union Trust Co. of New York v. Martin, D.C., 5 F.2d 116; Marquez v. Frisbie et al., 101 U.S. 473, 25 L. Ed. 800.

I am of the opinion that the district court was without jurisdiction to determine this question in the first instance. It involves the lease of state land, and primarily it is one to be determined by the Commissioner of Public Lands in the manner provided by the rules and regulations enacted by the legislature as authorized by the state Constitution. Of such rules so enacted, those providing for settlement of such claims have been herein copied. Appellee's remedy is by contest before the Commissioner of Public Lands.

I agree that the cause should be reversed and ordered dismissed, but not for the reasons stated in the majority opinion.