State ex rel. Arizona Highway Dept. v. Lassen
| Decision Date | 12 November 1965 |
| Docket Number | No. 8620,8620 |
| Citation | 407 P.2d 747,99 Ariz. 161 |
| Parties | The STATE of Arizona ex rel. ARIZONA HIGHWAY DEPARTMENT, Petitioner, v. Obed M. LASSEN, Commissioner, State Land Department, Respondent. |
| Court | Arizona Supreme Court |
Darrell F. Smith, Atty. Gen., Robert W. Pickrell, former Atty. Gen., Gary K. Nelson, Asst. Atty. Gen., for petitioner.
Dale R. Shumway, Sp. Asst. Atty. Gen., for respondent.
Rex E. Lee, Jennings, Strouss, Salmon & Trask, Phoenix, for Salt River Project Agri. Improvement Dist.
Rawlins, Ellis, Burrus & Kiewit, Phoenix, for Electrical Dists. Nos. 3 & 4, Pinal County.
A. Van Wagenen, Jr., Phoenix, for Electrical Dists. Nos. 2 & 5, Pinal County.
E. Leigh Larson, County Atty., Santa Cruz County, Westover, Copple, Keddie & Choules, Yuma, for Welton Mohawk Irrigation & Drainage Dist.
Richard J. Riley, County Atty. for Cochise County, amici curiae.
For over fifty years the state and county highway departments of Arizona have obtained rights of way and material sites without compensation over and on lands granted to the State of Arizona by the federal government pursuant to the Enabling Act of Arizona, June 20, 1910, c. 310, 36 U.S. Stat, 557, 568-579.
On December 14, 1964, the State Land Commissioner, hereinafter designated as Land Commissioner or respondent, after giving notice of a proposal to change the rules and regulations governing the rights of way and material sites over these lands, and holding a hearing at which petitioner appeared and filed an objection thereto, adopted the following rule disignated as Rule No. 12 of the State Land Department, to-wit:
Objections were overruled. On the same day, the State Highway Department, hereinafter designated as the Department or petitioner, filed this writ of prohibition to prevent respondent from enforcing this rule. An alternative writ of prohibition was granted by this court.
The question presented in this case is whether the Land Commissioner has the authority to adopt the rule as set forth which, in effect, provides for the payment for rights of way and material sites over these trust lands by the petitioner.
The lands were granted to the State of Arizona by the federal government pursuant to the Enabling Act of Arizona, June 20, 1910. Under Sec. 24 of this act, the State was granted 'in trust,' certain sections of every township for the support of common schools, with the opportunity to make indemnity selections where any of the sections were lost for one or more reasons. Congress further provided, in Sec. 25 of the Enabling Act, twelve specific grants for the following purposes: university; legislative, executive and judicial, public buildings; penitentiaries; insane asylum; school and asylum for deaf, dumb and blind; miners' hospital; normal schools; state charitable, penal and reformatory institutions; agricultural and mechanical colleges; school of mines; military institutions; and county bonds. By Sec. 1, Art. 10, of the Constitution of Arizona, A.R.S., the people of Arizona accepted the terms of the Enabling Act.
' § 1. Acceptance and holding of lands by state in trust
Respondent claims it has this authority under Section 28 of the Enabling Act, which sets forth the rules for the administration and disposition of the 'trust lands' confirmed to the State of Arizona under Sec. 24 and Sec. 25. Section 25 provides, in part:
'Disposition of any of said lands, or of any money or thing of value directly or indirectly derived therefrom, for any object other than for such particular lands, or the lands from which such money or thing of value shall have been derived, were granted or confirmed, or in any manner contrary to the provisions of this Act, shall be deemed a breach of trust.
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'* * * Said lands shall not be sold or leased, in whole or in part, except to the highest and best bidder at a public aucton * * *.
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'* * * nor shall any sale or contract for the sale of any timber or other natural product of such lands be made, save at the place, in the manner, and after the notice by publication provided for sales and leases of the lands themselves. * * *
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'A separate fund shall be established for each of the several objects for which the said grants are hereby made or confirmed, and whenever any moneys shall be in any manner derived from any of said land the same shall be deposited by the state treasurer in the fund corresponding to the grant under which the particular land producing such moneys was by this Act conveyed or confirmed. * * *
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'* * * It shall be the duty of the Attorney General of the United States to prosecute, in the name of the United States and in its courts, such proceedings at law or in equity as may from time to time be necessary and appropriate to enforce the provisions hereof relative to the application and disposition of the said lands and the products thereof and the funds derived therefrom.'
It is the contention of the respondent that, under the terms of these rules, it is a breach of trust to allow the petitioner to use the 'trust lands' without compensating the trust fund for the use thereof.
This question has been before this court on two prior occasions--the case of Grossetta v. Choate, 51 Ariz. 248, 75 P.2d 1031, and the case of State ex rel. Conway v. State Land Department, 62 Ariz. 248, 156 P.2d 901. In Murphy v. State, 65 Ariz. 338, 181 P.2d 336, the late Justice LaPrade set forth an able and scholarly history of the Enabling Act. We see no reason for trying to add to the history of this act. In the case of State ex rel. Conway v. State Land Department, supra, we said:
'The holding of this court in the case of Grossetta v. Choate, 51 Ariz. 248, 75 P.2d 1031, substantially determines all the issues herein involved. In that case, we reviewed an order of the trial court holding that the establishment of a county highway over school land was void because the land was held in trust under the Enabling Act, and that the granting of a right-of-way thereover to a county was a violation of the Act. The judgment of the lower court was reversed, the holding being that the land department could grant a right-of-way for public highways over school land to the several counties since the Enabling Act does not limit the power of the legislature to authorize grants of right-of-way easements over public lands for public highways.
'This decision was predicated on an interpretation of section 11-601, A.C.A.1939. This section of the code, together with the provisions contained in sections 11-1001, 11-1002 and 11-1003, were all enacted at the same time. See Laws of 1915 (2nd S.S.). Sections 11-1001, 11-1002 and 11-1003 were in effect at the time of the opinion and judgment in the case of Grossetta v. Choate, supra. The holding in the Grossetta [Grossetta v. Choate, supra] case was predicated not only on the statutory provisions of section 11-601, but also considered the restrictions of the grant in the Enabling Act.
'It is the contention of the land commissioner that this court in the Grossetta case did not pass on the question of whether such right-of-way may be granted without compensation to the permanent fund to which he contends the lands are attached or belong.
'In the Grossetta case we cited the case of Ross v. Trustees of University of Wyoming, 30 Wyo. 433, 222 P. 3, and from a very lengthy opinion rendered on petition for rehearing in that case (31 Wyo. 464, 228 P. 642, 647), we quote with approval a portion of the opinion as applicable to the question under consideration:
"The general provisions of the congressional granting acts and our state Constitution, limiting or conditioning the sale and disposal of the lands in question, should be reasonably construed, in view of the object of the grant, and the purpose of the restrictions. They contemplate, principally, so far as the question here is concerned the creation and maintaining of a permanent fund, which, through proper investment, shall furnish an income to be used exclusively for University purposes, and incidentally, a fair sale at an adequate price. Unless such object or purpose is found to have become substantially impaired through granting a right of way for a...
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