State Ex Rel. Evans v. Field

Decision Date22 October 1921
Docket NumberNo. 2434.,2434.
Citation201 P. 1059,27 N.M. 384
CourtNew Mexico Supreme Court


Syllabus by the Court.

Mandamus will not lie against the Commissioner of Public Lands to compel him to issue a deed conveying the public lands free from the reservation of the minerals therein, which reservation was contained in the contract of sale, because it is, in effect, an action against the state.

Additional Syllabus by Editorial Staff.

No sovereign state can be sued in its own courts, or any other, without its consent.

Appeal from District Court, Santa Fé County; Holloman, Judge.

Application by the State, on the relation of Arthur J. Evans on a writ of mandamus against Nelson A. Field, Commissioner of Public Lands, and another, to compel delivery of a deed or patent for land previously sold by the State to the relator upon deferred payment plan. Judgment for the relator, and the defendants appeal. Reversed and remanded, with directions to discharge the writ.

Mandamus will not lie against the Commissioner of Public Lands to compel him to issue a deed conveying the public lands free from the reservation of the minerals therein, which reservation was contained in the contract of sale, because it is, in effect, an action against the state.

Harry S. Bowman, Atty. Gen., for appellants.

Renehan & Gilbert, of Santa Fé, for appellee.


This is a proceeding in mandamus brought against the commissioner of public lands to compel the execution of delivery of a deed or patent for land previously sold by the state to relator upon the deferred payment plan. The contract of sale was in the usual form adopted by the state land office, and contained, among other provisions, the following:

“This land is being purchased for the purpose of grazing and agriculture only; that while the land herein contracted for is believed to be essentially nonmineral land, should mineral be discovered therein, it is expressly understood and agreed that this contract is based upon the express condition that the minerals therein shall be and are reserved to the fund or institution to which the land belongs, together with the right of way to the commissioner, of any one acting under his authority, to at any and all times enter upon said land and mine and remove the minerals therefrom without let or hindrance.”

After accepting and acting upon this contract from August 17, 1917, to March 19, 1919, on that day the relator, desiring to complete his purchase, tendered to the commissioner the total balance of the purchase price of the land, and demanded a deed conveying the same in fee simple. This was refused by the commissioner, on the ground that the minerals in the land were reserved to the state in the contract of sale, and no conveyance which included them could be demanded. The case was heard in the district court upon the petition and writ, and a demurrer to the same, and the demurrer was overruled. The respondent elected to stand on his demurrer, and not to plead further, and a peremptory writ was awarded commanding the commissioner to execute a deed conveying the fee to relator without reservation of mineral rights. This appeal is prosecuted from that judgment.

It is contended by the Attorney General for the respondent that this proceeding is in effect an action against the state, and cannot be maintained without its consent. This proposition was not raised by the demurrer in the lower court and is presented here for the first time under the first assignment of error, which is to the effect that the court erred in overruling the demurrer because the state was a necessary party. This assignment, under ordinary circumstances, in litigation between private persons, would hardly be held sufficient to present the question argued, viz. that this is an action against the state and cannot be maintained. The question, however, is one of jurisdiction, if the argument advanced is sound, and we ought to and will consider it, especially in view of its public nature.

In approaching the discussion the facts should be clearly in mind. It is to be remembered that the lands involved are a portion of the lands granted in trust to the state by the federal government for certain specified purposes. The grant is of the fee, and when the required preliminaries of selection by the state had been performed, and the government had clear-listed the same to the state, it became the absolute owner of the lands, subject only to the trust imposed by the granting act. In order to avail themselves of the grant, the people in their Constitution created the office of commissioner of public lands (section 1, art. 5), and clothed him with power to select, locate, classify, and have the direction, control, care, and disposition of all public lands, under the provisions of the act of Congress relating thereto, and such regulations as might be provided by law (section 2, art. 13). At the first state Legislature an act was passed somewhat amplifying the constitutional provisions (see sections 5178 et seq., Code 1915), and in section 1 of the act (section 5178, Code 1915) his jurisdiction over the land is somewhat more broadly stated, to the effect that it extends to all cases except as otherwise specifically provided by law. It is further to be remembered that the commissioner made a contract of sale of the land in controversy in which the mineral rights were reserved to the state. The state has never contracted to convey the fee of these lands, but has reserved from the sale the mineral rights therein.

The relator bought only the right to the lands for agricultural and grazing purposes, and did not buy the right to the minerals, if any, in the lands. He now seeks to exact from the state something which the state has never contracted to convey. If he were seeking to compel the commissioner to perform the contract as made, a different question would be presented. If the commissioner were arbitrarily, for some illegal reason or no reason, refusing to carry out a contract which he had made on behalf of the state with the relator, the performance of which would be a mere ministerial duty, his action might perhaps be controlled by mandamus. But he is doing nothing of the kind. He is simply standing on the contract as made, while relator is seeking from the state something different from what the contract specified. Under such circumstances it is not the action of the commissioner which is sought to be controlled, but it is the action of the state which it is sought to compel, and thereby secure a property right now held and owned by the state and which it has never agreed to convey. Under such circumstances the proceeding must be considered one against the state.

[1][2] It is a fundamental doctrine at common law and everywhere in America that no sovereign state can be sued in its own courts or in any other without its consent and permission. See Smith v. Reeves, 178 U. S. 436, 20 Sup. Ct. 919, 44 L. Ed. 1140, in which many former decisions of the Supreme Court are referred to. See, also, Kawananakoa v. Polyblank, 205 U. S. 349, 27 Sup. Ct. 526, 51 L. Ed. 834. See, also, 25 R. C. L. “States,” § 49. At an early date the Supreme Court of the United States held, that under the constitutional provision granting judicial power to the federal courts extending to controversies “between a state and citizens of another state,” the citizens of one state might sue another state in the federal courts. Chisholm v. Georgia, 2 Dall. 419, 1 L. Ed. 440. This decision met with such popular disapproval that the Eleventh Amendment to the Constitution was immediately proposed, and in due course was adopted by the states. This amendment restrained the federal power in terms, and prohibited citizens of one state from maintaining a suit in the federal courts against another state. See Hans v. Louisiana, 134 U. S. 1, 10 Sup. Ct. 504, 33 L. Ed. 842.

While the question as to the jurisdiction of the federal courts under the Constitution and the Eleventh Amendment is not always identical with the question as to the jurisdiction of state courts to entertain actions by its own citizens against the state, it is nevertheless true that the Supreme Court of the United States has been called upon in numerous cases to determine what is and what is not a suit against the state, and the great learning of that court has so illuminated the question as to make those decisions of the highest controlling influence in determining such questions. We believe that the status of opinion of the Supreme Court of the United States may be stated as follows: Where the contract is between the individual and the state, any action founded upon it against defendants who are officers of the state, the object of which is to enforce the specific performance by compelling those things to be done by the defendants which, when done, would constitute a performance by the state, or to forbid the doing of those things which, if done, would be simply breaches of the contract of the state, is in substance a suit against the state itself, and within the prohibition of the Constitution. See In re Ayres, 123 U. S. 443, 502, 8 Sup. Ct. 164, 31 L. Ed. 216; Pennoyer v. McConnaughy, 140 U. S. 1, 9, 11 Sup. Ct. 699, 35 L. Ed. 363; Reagan v. Farmers' Loan, etc., Co., 154 U. S. 362, 389, 14 Sup. Ct. 1047, 38 L. Ed. 1014; Hagood v. Southern, 117 U. S. 52, 6 Sup. Ct. 608, 29 L. Ed. 805; Cunningham v. Macon, etc., R. Co., 109 U. S. 446, 455, 3 Sup. Ct. 292, 609, 27 L. Ed. 992; Louisiana v. Jumel, 107 U. S. 711, 2 Sup. Ct. 128, 27 L. Ed. 448; Antoni v. Greenhow, 107 U. S. 769, 2 Sup. Ct. 91, 27 L. Ed. 468; Louisiana ex rel. New York Guaranty, etc., Co. v. Steele, 134 U. S. 230, 10 Sup. Ct. 511, 33 L. Ed. 891. The later cases in the Supreme Court of the United States merely amplify and illustrate the principles which have been developed in the cases cited...

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