State Ex Rel.Otto v. Baca)

Decision Date02 July 1925
Docket NumberNo. 2632.,2632.
Citation31 N.M. 120,241 P. 1027
PartiesSTATE ex rel.OTTOv.FIELD (now BACA), State Commissioner of Public Lands.
CourtNew Mexico Supreme Court


Syllabus by the Court.

Findings of fact relative to alleged classification as nonmineral lands certain public lands contracted to be sold to appellee examined, and it is held, that such findings are not supported by substantial evidence.

The commissioner of public lands, being clothed with the 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, and his jurisdiction over the land extending to all cases except as otherwise specifically provided by law, had the power to reserve the minerals in the land to the fund or institution to which the land belongs, when making sale thereof.

Where the notice of the public sale of state lands contains the provision that the successful bidder shall execute a contract within 30 days after it is mailed to him, said contract to provide, among other things, the conditions, obligations, reservations, and terms as may be required by law, and such contract, containing the mineral reservation complained of, is afterwards executed, and there is no showing that appellee was in any manner misled as to the presence of such reservation in the formal contract, the purchaser (appellee) may not successfully claim that the agreement was complete upon the acceptance of his bid and first payment on the purchase price of the land, and that he is not bound by the express terms of the formal contract so executed by him pursuant to the requirements stated in the notice of sale.

Additional Syllabus by Editorial Staff.

Laws 1912, c. 82, which confers upon the commissioner of public lands jurisdiction thereof, invests the commissioner with an absolute dominion over state lands, except only as the jurisdiction conferred is specifically limited by law; “jurisdiction,” like many other words of general use, having different meanings, dependent upon the connection in which it is found and the subject-matter to which it is directed, but always being a word of comprehensive import.

On Rehearing.

The “state” is a body politic, which must of necessity act through its duly authorized agents and officers; it being such a body or society of men, united for the purpose of their mutual safety and advantage by the joint efforts of their combined strength.

If the commissioner of public lands has the power to reserve minerals when making a sale of public lands, he has power to proclaim in advance of sale that the formal contract to be entered into within 30 days after notice of the acceptance of the bid should contain reservations of minerals.

State statute prohibiting a sale of the mineral content of public land, as distinguished from the surface of such land, does not offend Enabling Act, § 10, under which the land was granted to the state.

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

Mandamus by the State, on the relation of Christian Otto, against Nels Field (now Justiniano Baca), as Commissioner of Public Lands of the State of New Mexico. From an adverse judgment, defendant appeals. Reversed and remanded, with directions to discharge writ.

H. S. Bowman, Atty. Gen., for appellant.

E. R. Wright, of Santa Fé, and Crampton & Darden, of Raton, for appellee.


The plaintiff, appellee here, filed his petition for an alternative writ of mandamus in the district court of Santa Fé county on the ------ day of October, 1919, where he demanded that the defendant, appellant here, execute to him a deed without any reservation whatsoever for certain state lands which had been applied for by Louis W. Christoph, whose rights were succeeded to by the appellee. The appellant answered, alleging that the said appellee had no right to a deed in the form demanded in the petition for the writ of mandamus, and denying the right of the appellee to the redress demanded.

On the said pleadings, the matter came to a hearing before the district court, which issued the temporary writ, afterwards making it permanent, requiring the appellant to execute the deed in the form demanded in the petition, and entered judgment in accordance with said writ. From this judgment this appeal is prosecuted by the appellant to the Supreme Court of the state.

The facts in the main are as follows:

On February 21, 1916, one Louis W. Christoph filed an application in the usual form for the purchase of state lands in Union county, N. M. Thereafter an appraisement was had of the lands, and a written copy of the appraiser's report was duly filed in the office of the commissioner of public lands. The application to purchase was duly approved, and the land advertised for sale in accordance with the provisions of the law. The sale was held pursuant to said notice, and at the sale one Thomas Gray, acting for himself as to part of the lands involved, and for the appellee, Christian Otto, as to a portion of said lands, was the highest and best bidder, and said lands were duly struck off to said Thomas Gray, who was acting as the agent of the appellee as to a portion of said lands. The amount of the bid was $6.05 per acre, or $1,200 for the land purchased by the appellee. Under date of April 25, 1917, the date of the sale, there was executed by the then commissioner of public lands and the appellee herein a written contract No. 1142. Under date of June 25, 1917, the commissioner issued his receipt No. 23785 to the said appellee for the amounts due for the appraisement, advertisement, and first payment upon the said lands. The written contract aforesaid contains a reservation to the state of New Mexico of all minerals contained in the lands sold under the contract; the reservation being in the following language:

“That 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 minerals 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, or 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.”

On October 12, 1919, the appellee tendered to the appellant, Nels Field, as commissioner of public lands, the sum of $1,054.23, being the unpaid balance due, including the principal and interest, upon the purchase price of the said lands purchased by the appellee herein, and demanded of the appellant as said commissioner that he issue and deliver to the said appellee a deed to the said lands without any reservation or condition as to the minerals contained in the lands. The appellant refused to issue and deliver such deed, upon the ground that the appellee was entitled only to such deed as was contemplated by the contract of sale between the said parties, but agreed to issue and deliver a deed containing a reservation of said minerals as provided for in the said contract of sale. The appellee then filed his suit in mandamus in the district court in the county of Santa Fé to compel the commissioner to issue the said deed without reservation in accordance with his demand therefor. Testimony was submitted, and, after considering the same, the court made certain findings of fact and conclusions of law and rendered judgment, making the alternative writ peremptory, and granting to the appellee the relief prayed for in his petition for the said writ.

It is claimed by the appellant that this proceeding is in effect a suit against the state of New Mexico, and that as such it cannot be maintained. This is a very vital question, and, if the appellant is right on this contention, the case is disposed of on the authority of State ex rel. Evans v. Field, Commissioner of Public Lands et al., 27 N. M. 384, 201 P. 1059. It will be necessary to consider more or less the merits of the controversy in order to determine whether or not this is in effect a suit against the state. As was said in State ex rel. Evans v. Field, supra:

“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. * * * On the other hand, where the law directs or commands a state officer to perform an act under given circumstances, which performance is a mere ministerial act, not involving discretion, mandamus will lie to compel the action, notwithstanding performance of the state's contract may incidentally result. In such a case the action is not really upon the contract, but is against the officer as a wrongdoer. He is, under such circumstances, not only violating the rights of the relator, but is disobeying the express commands of his principal, the state.”

Supplementing the statement of the foregoing principle, attention is called to other similar expressions by our court. In the case of State v. Marron, 18 N. M. 426, 137 P. 845, 50 L. R. A. (N. S.) 274, in discussing a question of discretionary action on the part of the state treasurer, the court said:

“If the state treasurer has the discretion hereinbefore mentioned, he is not, of course, subject absolutely to mandamus to make any particular form of investment of these funds.”

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