State Land Dept. v. Tucson Rock & Sand Co.

• Decision Date: 05 March 1971
• Docket Number: No. 10128--PR,10128--PR
• Citation: 481 P.2d 867,107 Ariz. 74
• Parties: STATE LAND DEPARTMENT, Appellant, v. TUCSON ROCK AND SAND COMPANY, Appellee.
• Court: Arizona Supreme Court

Page 867

481 P.2d 867

107 Ariz. 74

STATE LAND DEPARTMENT, Appellant, v. TUCSON ROCK AND SAND COMPANY, Appellee.

No. 10128--PR.

Supreme Court of Arizona, In Banc.

March 5, 1971.

Gary K. Nelson, Atty. Gen. by Dale R. Shumway, Special Asst. Atty. Gen., Phoenix, for appellant.

Bilby, Thompson, Shoenhair & Warnock by Marvin S. Cohen, Tucson, for appellee.

Evans, Kitchel & Jenckes, G. Henry Ladendorff, Twitty, Sievwright & Mills, Phoenix, Verity & Smith, Tucson, amici curiae.

STRUCKMEYER, Chief Justice.

This action arises out of the cancellation of State Mineral Lease M--109 issued for a 20-year term to appellee Tucson Rock and Sand Company. From the cancellation by the State Land Commissioner, Tucson Rock and Sand appealed to the Superior Court of Pima County. That court set aside the order of cancellation. The Court of Appeals reversed, and we accepted review. Opinion of the Court of Appeals, 12 Ariz.App. 193, 469 P.2d 85 vacated.

In 1952, appellee was issued a State Mineral Lease. By it, appellee was required to pay the State of Arizona a royalty of five cents for each cubic yard of sand, rock and gravel removed from the State lands covered by the lease. In June of 1967, the State Land Department determined that the value of sand, rock and gravel was 9.5 cents per ton. It thereafter refused to accept appellee's tender of payment of royalties based on five cents per cubic yard, and when payment was refused on the basis of 9.5 cents per ton, the lease was cancelled.

By the Act of June 20, 1910, Ch. 310, 36 Stat. 557, Congress enacted enabling legislation by which the people of the territories of Arizona and New Mexico were authorized to form state governments. Congress granted to Arizona certain federal lands for the support of common schools and for internal improvement of the new state. Mineral lands were not, however, granted, but reserved to the United States. Campbell v. Flying V Cattle Company, 25 Ariz. 577, 589, 220 P. 417; § 24 of 36 Stat., supra, and see Art. X, §§ 4, 5 and 8 of the Constitution of Arizona, A.R.S.

By § 28 of Arizona's Enabling Act, Congress 'declared that all lands hereby granted * * * shall be by the said State held in trust, to be disposed of in whole or in part only in the manner as herein provided', and the disposition of any of the lands granted 'in any manner contrary to the provisions of this Act, shall be deemed a breach of trust.' Section 28 of the Act also provided that the 'said lands shall not be sold or leased, in whole or in part, except to the highest and best bidder at a public auction' and that no '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 notice by publication provided for sales and leases of the lands themselves;'. (Emphasis added) Section 28 specifically provided:

'All lands, leaseholds, timber and other Products of land, before being offered shall be appraised at their true value, and no sale or other disposal thereof shall be made for a consideration less than the value so ascertained, * * *.' (Emphasis added)

It is clear that Congress imposed upon Arizona the obligation to appraise 'timber and other products of land' before their sale or other disposal in order that the sale or disposal would not be at less than the true appraised value.

As stated, appellee claims its rights through State Lease No. M--109. This lease is a placer lease of 160 acres and is on a printed form with the title 'Mineral Lease'. It contains all of the provisions for royalties and conditions as set forth in the statute for mineral leases, about which more will be said later. Mineral leases have had legislative authorization for many years. See § 27--231, et seq., A.R.S. 1956 and discussion Infra. Whether sand, rock and gravel are minerals, so as to be subject to a mineral lease under the Arizona statute, is the question at issue here.

It has been held both that sand, rock and gravel are minerals, Robinson v. Wheeling Steel & Iron Co., 99 W.Va. 435, 129 S.E. 311, and that they are not minerals, Whittle v. Wolff, 249 Or. 217, 437 P.2d 114. The word 'mineral' is used in so many senses, dependent upon the context, that the ordinary definitions such as those provided by dictionaries throw but little light on the significance in a given case; and, therefore, the word is susceptible to limitation or expansion according to the intention with which it is used in the particular instrument or statute. Puget Mill Co. v. Duecy, 1 Wash.2d 421, 96 P.2d 571, and See Northern Pacific Railway Co. v. Soderberg, 188 U.S. 526, 23 S.Ct. 365, 47 L.Ed. 575.

Arizona became a state on February 14, 1912, but it was not until 1915, in its Second Legislature, Second Special Session, that Arizona adopted a public land code. There was thereby created a State Land Department with authority to execute leases and contracts for the leasing of State lands containing 'gold, silver, copper, lead or other valuable minerals, or for any land containing shale, slate, petroleum, natural gas, or other valuable natural deposits * * *.' Law of June 26, 1915, 2d Spec.Sess., Ch. 5, § 38, page 27. Section 38 did not, however, specifically provide for the disposal of sand, rock or gravel. This was provided for in § 75, under the title 'Products of Land'. It read:

'The commissioner (State Land Commissioner) shall have the authority and it shall be his duty to care for, sell or otherwise administer the timber products, stone, gravel, and other products and property upon the lands belonging to the State, under such rules and regulations, not in conflict with the Enabling Act, and of the Constitution of the State of Arizona, as the commissioner may prescribe.'

In the Revised Code of 1928, § 75 was consolidated with § 76, becoming § 3003 under Article 5, 'Products of State Lands', and then became § 11--501, A.C.A.1939, and finally § 37--481, A.R.S.1956. Section 37--481 presently provides:

'Conservation and administration of products of state lands

The state land department shall conserve, sell or otherwise administer the timber products, stone, gravel and other products and property upon lands belonging to the state under rules and regulations not in conflict with the enabling act and the constitution, and conforming as nearly as possible to the rules and regulations of the forest service of the United States department of agriculture.'

It is clear that the Arizona Legislature, almost from statehood, has construed the words of the Enabling Act, 'other products of land', as including sand, stone and gravel, and has not included sand, stone and gravel within the leasing of minerals.

Appellee relies on the language of A.R.S. § 27--231 et seq., formerly § 11--1601 et seq., and in particular § 11--1604, A.C.A. 1939, 1952 Cum.Supp. The statutory scheme by which minerals can be removed from State lands is that a discoverer of a valuable mineral deposit may locate it as a mineral claim. The locator is then given a preferred right to a mineral lease covering each claim. At the time this claim was issued, the State received as consideration:

'(a) The rental of a mineral lease of state lands shall be fifteen dollars ($15.00) per annum, * * *. (b) Every mineral lease of state land shall provide for payment to the state by the lessee of a royalty of five (5) per cent of the net value of the minerals produced from the claim. * * * Provided that in the case of sand, rock and gravel to be used in the construction of roads, building or other structures the royalty shall be such amount as shall be determined by the state land commissioner under reasonable rules and regulations to be promulgated by him but not more than five cents (5cents) per cubic yard. * * *' § 11--1604 A.C.A.1939, as amended.

It is apparent that § 11--1604, A.C.A.1939, Cum.Supp.1952 (§ 27--234, subsec. C, A.R.S.1956) and § 11--501, A.C.A.1939 (§ 37--481, A.R.S.1956) are at least ostensibly in conflict. But where statutes In pari materia are in apparent conflict, the customary rules of construction require that they should, as far as possible, be construed in harmony so as to give force and effect to each. We said in Ard v. State, 102 Ariz. 221, 427 P.2d 913:

'Where sound reason and good conscience will allow, this court has a duty to harmonize statutes where there is a possibility of conflict.'

It is the rule, one so solidly embedded in American jurisprudence to be without exception, that a court will not construe a statute as repealed by implication by another if it can avoid doing so on any reasonable hypothesis. State v. Chalmers, 100 Ariz. 70, 411 P.2d 448; State v. Morf, 80 Ariz. 220, 295 P.2d 842; Ariz. Corp. Comm. v. Catalina Foothills Estates, 78 Ariz. 245, 278 P.2d 427; Industrial Comm. v. Hartford Accident and Indemnity Co., 61 Ariz. 86, 144 P.2d 548; Southern Pac. Co. v. Gila County, 56 Ariz. 499, 109 P.2d 610. Different statutes bearing on the same subject matter will be construed, if possible, to give effect to both. Ariz. Corp. Comm. v. Catalina Foothills Estates, Supra.

And it is to be recognized that where a statute expressly repeals a specific act, the naming of those to be superseded is indicative of an intention not to repeal or interfere with the operation of others. Commonwealth v. Bloomberg, 302 Mass. 349, 19 N.E.2d 62. The naming of a statute to be superseded indicates that the legislature did not consider that another statute was in conflict with the new act, Lindsey v. Superior Court, 33 Wash.2d 94, 204 P.2d 482. In the instant case, Arizona's Seventeenth Legislature, by Laws of 1945, Ch. 87, §§ 1--6,...