Moeur v. Chiricahua Ranches Co., Civil 3696

• Decision Date: 28 September 1936
• Docket Number: Civil 3696
• Parties: B. B. MOEUR, JAMES H. KERBY, JOHN L. SULLIVAN, MIT SIMMS, ANA FROHMILLER, Constituting the State Land Department of the State of Arizona, and CHARLES P. MULLEN, State Land Commissioner, Appellants, v. CHIRICAHUA RANCHES COMPANY, a Corporation, Appellee
• Court: Arizona Supreme Court

61 P.2d 163

48 Ariz. 226

B. B. MOEUR, JAMES H. KERBY, JOHN L. SULLIVAN, MIT SIMMS, ANA FROHMILLER, Constituting the State Land Department of the State of Arizona, and CHARLES P. MULLEN, State Land Commissioner, Appellants, v. CHIRICAHUA RANCHES COMPANY, a Corporation, Appellee

Civil No. 3696

Supreme Court of Arizona

September 28, 1936

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment affirmed.

Mr John L. Sullivan, Attorney General, and Mr. Elmer C. Coker Assistant Attorney General, for Appellants.

Mr. D B. Morgan, for Appellee.

OPINION

McALISTER, J.

This is an appeal by B. B. Moeur, James H. Kerby, John L. Sullivan, Mit Simms and Ana Frohmiller, composing the state land department of Arizona, and Charles P. Mullen, state land commissioner, from a judgment granting a writ of prohibition directing them to refrain from canceling certain state land leases which the department had theretofore issued to the Chiricahua Ranches Company and from awarding leases covering the same lands to other persons.

There is no dispute as to the facts. It is admitted that they are correctly alleged in the petition for the writ and, so far as necessary to a proper disposition of the appeal, are as follows: On October 18, 1929, the state land department issued to Roy Gill, for a term of five years from October 31, 1929, three leases on state lands, covering separate tracts, each situated in different sections of the same township in Pima county (22 south, range 9 east, Gila and Salt River meridian), and on August 24, 1932, with the consent of the state land commissioner, these leases were assigned to the Chiricahua Ranches Company. On September 21, 1934, and within "not less than thirty nor more than sixty days prior to the expiration of the lease," as required by section 2972, Revised Code of 1928, that company filed its application for renewals.

A few days prior thereto, however, Gabriel B. Garcia, Damasio B. Garcia and Pedro B. Garcia had filed applications, each asking for a lease on one of the three tracts, and on January 9, 1935, after investigation and a hearing, the state land commissioner approved the application of the Chiricahua Ranches Company and immediately advised the three Garcias of its action and of their right, under section 2966, Revised Code of 1928, to appeal within twenty days to the state land department. Upon expiration of this period, no appeal having been filed, leases covering the three tracts were executed by the state land department, through its duly authorized officers, and by the Chiricahua Ranches Company, lessee, for a period of five years from November 1, 1934, and upon the company's payment in advance of one year's reappraised rental charge for them the leases were issued and were thereafter in full force and effect.

After the twenty-day period for appeal had gone by and the leases had been issued, the Garcias forwarded notices of appeal by mail to the state land commissioner, who, a few days thereafter, advised them that since the appeals had not been filed in time they could not be considered, the department having lost jurisdiction, and that leases to other persons covering the same lands had already been issued and were then outstanding.

Shortly thereafter a new state land commissioner was appointed and he notified the petitioner and the Garcias that the appeals previously filed had been presented to the department and a hearing on them would be held by the department on June 24, 1935. The plaintiff made a special appearance to object to the department's jurisdiction over the subject matter and moved that the appeals be dismissed for the reason that its leases had been duly executed and delivered and were then outstanding, completed, valid contracts that could be canceled, if at all, only by complying with the procedure authorized by section 2971, Revised Code of 1928, relating to cancellation of leases obtained through fraud. The department did not grant the motions, but heard the appeals on their merits, the plaintiff taking no part in the proceeding, and after the introduction of evidence by the Garcias adopted unanimously a motion awarding the leases to them. The next day the commissioner notified the plaintiff that its three leases were to be canceled and ordered it to return the originals to the department for cancellation. The plaintiff refused and, on July 9th thereafter, filed a petition for an alternative writ of prohibition, setting forth the foregong facts and asking that the defendants be restrained from canceling its leases and entering into others with the Garcias covering the same land, and the court ordered it issued.

The defendants demurred to the petition both generally and specially, and moved to quash the writ, the basis of both pleadings being that the state land department had exclusive and complete jurisdiction of the subject matter of the action at all times after the filing of the applications for leases, and that the provisions of section 2966, Revised Code of 1928, prescribing the time for taking an appeal, have no application to an appeal from the state land commissioner to the state land department.

The court overruled the demurrers, denied the motion to quash and, after the defendants announced they would stand on their pleadings, ordered that the alternative writ of prohibition be made absolute. The defendants, being dissatisfied with this disposition of the case, have brought it here for review.

Appellants make two assignments, each of which gives a different reason why the action of the court in overruling the demurrers, denying the motion to quash, and making the alternative writ of prohibition absolute, was erroneous. Both are based on the construction the trial court placed on the section of the state Land Code providing for appeals, section 2966, supra, which became a part of the statutes in its present form as a result of the codification of the laws pursuant to chapter 35, Session Laws 1925. The original Land Code, consisting of one hundred twenty sections, was enacted in June, 1915, and appears in the acts of the Second Special Session of that year as chapter 5. As then adopted it contained no provision for an appeal from a decision of the commissioner to the land department or from a decision of the department to the courts, but the Fourth Legislature supplied this omission by making sections 3 and 4 of chapter 166, Session Laws of 1919, reading as follows, a part of the Land Code:

"Section 3. Any applicant to lease State land may appeal from any decision of the commissioner of the state land department and from the state land department to the Superior Court of the county in which the land is situated, where said decision is adverse to said applicant in regard to the leasing of the land or any part thereof, described in said applicant's application.

" Section 4. The party appealing, his agent or attorney, shall give notice thereof in writing to said commissioner or land department from whose decision the appeal is being taken and to the adverse applicants to lease the land referred to in said decision within twenty (20) days from the date of the rendition thereof."

These two sections remained in this form until they were restated and carried into the Revised Code of 1928 as section 2966, which reads as follows:

"§ 2966. Appeal by applicant; notice. An applicant to lease state land may appeal from a decision of the commissioner to the department, and from the department to the superior court of the county in which the land is situated. The party appealing shall give notice thereof in writing to the commissioner or department from whose decision the appeal is taken and to the adverse applicant, within twenty days from the rendition of the decision. Thereafter such proceedings shall be had in the superior court as on appeal from an appraisement."

The first reason appellants assign to sustain their position that the rulings complained of were erroneous is that in reaching that conclusion the court held that section 2966repealed sections 3 and 4, in that it provided for an appeal from the commissioner to the department and required that it be taken within twenty days from the rendition of the decision. This construction was not, appellants claim, justified in view of the last sentence of section 2966 stating that "Thereafter such proceedings shall be had in the superior court as on an appeal from an appraisement," since this language can only mean that the legislature intended that the twenty-day provision should apply to an appeal from the department to the courts and not to an appeal from the commissioner to the department. But if, notwithstanding this, the court was correct in applying the twenty-day provision to such an appeal, they say it was possible to do so only because a change in the existing law (sections 3 and 4, supra) was made when those sections were combined into section 2966, and since this was wholly unauthorized by the act providing for codification, the legislature did not, in adopting the Code as revised, adopt section 2966 with this construction.

As further evidence that such was not the purpose of the legislature, appellants call attention to the fact that at the time it adopted section 2966 it adopted also, as a part of the same chapter (chapter 71, Revised Code of 1928), section 2947, which, after creating the state land department, stating who shall compose it and directing the department to appoint a state land commissioner, concluded with this specific provision:

"The department may sell and lease all lands owned or held in trust by the state, as hereinafter provided, and hold semimonthly meetings, at which time all disputes, grievances and other...