Cobra Oil & Gas Corp. v. Sadler

• Decision Date: 24 July 1968
• Docket Number: No. B--637,B--637
• Court: Texas Supreme Court
• Parties: COBRA OIL & GAS CORPORATION, Relator, v. Honorable Jerry SADLER, Commissioner of the General Land Office of Texas, et al., Respondents.

Page 887

447 S.W.2d 887

COBRA OIL & GAS CORPORATION, Relator, v. Honorable Jerry SADLER, Commissioner of the General Land

Office of Texas, et al., Respondents.

No. B--637.

Supreme Court of Texas.

July 24, 1968.

Rehearing Denied May 14, 1969.

Second Rehearing Denied July 2, 1969.

John W. Stayton, Austin, Marvin H. Brown, Wichita Falls, for relator.

Crawford C. Martin, Atty. Gen., J. Milton Richardson, Asst. Atty. Gen., Austin, for respondents.

POPE, Justice.

Cobra Oil & Gas Corporation, with leave of the court, filed its petition for writ of mandamus asking this court to order the Honorable Jerry Sadler, Commissioner of The General Land Office to accept its tender of rentals for certain mineral awards. Cobra has also joined a number of surface owners. Cobra's contentions are: (1) Article 5395 does not require payment of a rental to the State until the January following issuance of the awards, (2) its tender of the rentals was timely because it occurred prior to the time the Commissioner stamped and signed the files as 'forfeited,' (3) the Commissioner had no discretion with respect to his acceptance of the tendered rentals. We deny relator's petition for mandamus.

The Commissioner, during June and July of 1967, pursuant to Article 5388 et seq., Vernon's Ann.Tex.Civ.Stats., issued a number of mineral awards to Cobra covering 5,524.73 acres of land in Culberson, Pecos and Reeves Counties. Cobra neither paid nor tendered any rentals until November 28, 1967. On that date, according to the affidavits which accompany the petition for mandamus, counsel for Cobra went to the General Land Office in Austin, where, according to an affidavit of Cobra's counsel, the following events transpired:

'On November 28, 1967, I personally visited at the General Land Office of the State of Texas where I interviewed Mr. Victor Day of the Legal Department of the General Land Office. In the course of my visit I made specific inquiry of Mr. Day as to whether or not the mineral awards of Cobra Oil & Gas Corporation had been forfeited. Thereupon Mr. Day brought to his office the files of Cobra Oil & Gas Corporation's mineral awards concerned in the present litigation between Cobra Oil & Gas Corporation and the Honorable Jerry Sadler. Mr. Day thereupon proceeded to examine said awards and advised me that said awards had not been forfeited. Mr. Day did state that he was at that time reviewing various mineral claims for presentment for forfeiture and that, in fact, some other mineral awards had been forfeited. Immediately thereupon I tendered to Mr. Day a check in full payment of delay rentals. That check was returned to me the same day by Mr. Day with a letter from Mr. Sadler refusing tender of the rentals giving as his only reason a statement that the tender was not timely.'

The Land Commissioner asserts by affidavit, however, that all of the awards 'had been declared forfeited by me prior to November 28, 1967, and on November 28, 1967, my staff was engaged in the mechanical process of gathering and stamping the forfeited awards for my signature at the time Mr. Marvin H. Brown visited the General Land Office.' He further asserts that at the time of Cobra's tender a large number of awards to Cobra and others, not parties to this action, had been stamped and signed, but a number of awards had not yet been stamped and signed. On December 29, 1967, Cobra received letters from the Commissioner which referred to the mineral awards and stated that they 'have been forfeited for failure to pay the required rental in advance after the issuance of the award.' The awards were forfeited on the records on November 28, 1967. The relevant statutes are:

Art. 5395. 'The owner of each claim shall pay fifty (50) cents per acre annually in advance after the award And during the month of each succeeding January of each year thereafter; * * *.' (Emphasis added)

Art. 5397. 'If the locator or owner of any claim obtained under the provisions of this law or operating under this law shall fail or refuse to make the payment of any sum within thirty days after it becomes due, or if such one or an authorized agent should knowingly make any false return or false report concerning production, mining or development, or if such one should fail or refuse the proper authority access to the records pertaining to the operations, or if such one or an authorized agent should knowingly fail or refuse to give correct information to the proper authority, or knowingly fail or refuse to furnish the Land Office all correct reports required by this law, the rights acquired under the location or claim shall be subject to forfeiture by the Commissioner, and he shall forfeit the same when sufficiently informed of the facts which authorize the forfeiture, and the minerals covered by such location and claim shall be subject to sale in the manner provided for the sale of minerals under the present law. Such forfeiture may be set aside and all rights thereto may be reinstated at any time before the rights of another intervene, upon satisfactory evidence of future compliance with the provisions of this law. Acts 2nd C.S., 1919, p. 241; Acts 1929, 41st Leg., p. 655, ch. 291, § 1; Acts 1934, 43rd Leg., 2nd C.S., p. 61, ch. 20, § 2; Acts 1935, 44th Leg., p. 77, ch. 29, § 2.'

Cobra contends it was not required to make rental payments until January 1968 following the issuance of the awards in June and July 1967. The contention is not supported by the requirements of Article 5395, supra. We construe the statute to require the first payment of rentals in advance after the award but within the thirty days required by Article 5397 and thereafter a like rental 'during the month of each succeeding January.' In our opinion the word 'and' means there are initially two payments, one after the award and another during the succeeding January. Thereafter there is only one annual payment, due each January, necessary to keep the mineral award in force. The construction urged by Cobra would better fit a statute which contained identical words but omitted the word 'and'. We hold that the first payment was owing after the award and the next payment was owing during the first January following the award.

Cobra's next argument is that there was no forfeiture because it tendered the late rentals prior to the time the Commissioner wrote or stamped on the file wrappers for the awards suitable words which showed a forfeiture. As expressed by Cobra, '* * * the critical issue is when the stamp was affixed to the award.' At the outset, Cobra is faced with the problem that the forfeiture statute which applies to sulphur awards, Article 5397, is silent about the Commissioner's stamping the wrappers. Cobra arrives at its conclusion by resort to other statutes enacted at other times, and with respect to other kinds of state lands. It would write into Article 5397 requirements not found in Article 5397 but found in Articles 5326, 5350, 5360, and 5421m, Vernon's Tex.Civ.Stats. In each of those statutes, the Legislature spelled out the act of forfeiture by requiring the Commissioner to stamp the file wrapper with words of forfeiture which he must then sign.

The legislative history of Texas public lands shows that from time to time different kinds of public lands have been the subject of specific legislation, and even the same kinds of lands have at different periods of time been handled differently from the method now employed. The forfeiture of contracts covering surface lands has been accomplished in a variety of statutory ways different from mineral lands. This is evident by comparing the history of Article 5326 with that of Article 5397. Article 5326 ¹ relates to public lands classed generally as surface and timber lands. It states that upon non-payment of interest on any sale, the lands are subject to forfeiture. Forfeiture is authorized '* * * by the Commissioner entering on the wrapper containing the papers 'Land Forfeited,' or words of similar import, with the date of such action and sign it officially, * * *' Cobra says that the Commissioner can forfeit its contracts by that method and no other, and that he didn't do so prior to its tender.

Early in Texas history, sales of public lands were authorized by statutes which omitted provisions for forfeiture by any particular method. Acts 1856, 6th Leg., ch. 144, p. 71. In 1874 the Legislature authorized the sale of University lands and also lands set apart for the benefit of the common school fund. Forfeiture resulted by the Commissioner's notification of the State Treasurer of the purchaser's failure to pay his installments and interest on time, the Treasurer endorsed on the obligation a statement of such failure and signed his name. The statute also authorized a judicial ascertainment of forfeiture in a suit instituted by the district attorney. Acts 1874, 14th Leg., ch. 63, p. 72, and ch. 102, p. 142. Weaver v. Robison, 114 Tex. 272, 268 S.W. 133, 135 (1925). In 1879 the Legislature required forfeiture for non-payment of interest to be enforced by a proceeding in court with a copy of the judgment filed in the Treasurer's office who endorsed the obligation, 'forfeited.' Acts of 1879, 16th Leg., C.S., ch. 28, p. 26; Brightman v. Comanche County, 94 Tex. 599, 63 S.W. 857 (1901). After 1883, the statutes authorized forfeiture by the Commissioner, and also directed the manner in which he made it, which has, since that time, been by writing the words 'land forfeited' or similar words upon the file wrapper. Brightman v. Comanche County, supra. Acts 1887, 20th Leg., ch. 99, p. 83. See, Acts 1891, 22nd Leg., ch. 114, p. 180; Acts 1897, 25th Leg., ch. 37, p. 39; Acts 1919, 36th Leg., ch. 163, p. 312; Acts 1941, 47th Leg., ch. 191, p. 351; Acts 1951, 52nd Leg., ch. 59, p. 92.

Cases arising under statutes which stated the precise manner by which the Commissioner declared and evidenced a forfeiture have held that no other method may effect a forfeiture. Underwood v....