State v. Snyder

• Decision Date: 15 February 1923
• Docket Number: 1058
• Citation: 29 Wyo. 163,212 P. 758
• Parties: STATE v. SNYDER, TREASURER
• Court: Wyoming Supreme Court

212 P. 758

29 Wyo. 163

STATE v. SNYDER, TREASURER

No. 1058

Supreme Court of Wyoming

February 15, 1923

Original proceedings in mandamus on the relation of School District No. 1 in the County of Weston, State of Wyoming against A. D. Hoskins, as State Treasurer, to require him to credit to the account of the common school land income fund certain rents or royalties from the leasing of school lands and to continue to do so from time to time as such rents or royalties are received by him in the future. An alternative writ was granted and defendant made his answer and return alleging that the statute on which relator relied for relief was unconstitutional, to which answer and return relator filed a general demurrer and the cause was heard and determined upon the demurrer.

Writ denied.

Alfred H. Beach and Thurman W. Arnold. for relator; J. G. Hartwell S. A. Nelson, Louis Kabell, Jr., and L. H. Brown, of counsel.

Defendant as State Treasurer cannot question the constitutionality of a statute by pleading that unless he does so, he will be personally liable. A ministerial officer is without authority to question the constitutionality of a law. (Ry. Co. v Worthen, 120 U.S. 97, 30 L.Ed. 558; Smith v Indiana, 191 U.S. 138, 48 L.Ed. 125.) It is a function of the judicial department. Persons charged with the exercise of powers belonging to one coordinate department of government are not permitted to exercise powers belonging to either of the others. (Art. II, Sec. 1 Const.) A ministerial officer refusing to obey a statute on the ground of its alleged invalidity is attempting an exercise of judicial power. (Marbury v. Madison, 1 Cranch 127.) The State Treasurer would not incur personal liability in obeying the statute. (State v. Gramm, 7 Wyo. 329; U. S. v. Realty Co., 163 U.S. 427.) Courts will not consider questions with respect to the constitutionality of a statute unless it is necessary to a determination of the case. (6 R. C. L. 74.) The statutes relied upon by relator are constitutional. The lands involved were granted to the state by congress for the support of Wyoming schools (Sec. 4 Act of Admission.) Lands known to be mineral in character at the time of grant were excluded. (State v. U.S. 41 S.Ct. 393.) The Constitution created boards of land commissioners, (Art. XVIII, Secs. 3-4.) Proceeds from the sale of school lands constitute a permanent school fund (Secs. 5 Act of Admission.) School revenues include moneys arising from the sale or lease of school sections (Art. VII, Sec. 2 Const.) The income from permanent school funds together with leases of unsold school lands are available for support of free schools (Art. VII, Sec. 7.) Statutes providing for the sale or lease of state lands have been enacted from time to time, including re-leasing of mineral lands upon a royalty basis. The statutes directly involved in this controversy are Chapters 66 and 147 of the Laws of 1921. Leases of mineral lands provide for the payment of royalties which, in fact, are rents and not proceeds from a sale of the land. Such leases are for a definite term and no rights, similar to the respective rights of a life tenant or a remainderman, are involved, nor are the leases perpetual. They do not convey the mineral content. The nature of the ownership of oil and gas has been fixed and defined in a multitude of decisions. (Walls v. Carb. Co., 254 U.S. 300; Ohio Oil Co. v. Ind., 177 U.S. 19; Brown v. Spillman, 155 U.S. 665.) Language may be found in some of the decisions indicating that no title exists as to oil and gas in place. An example is, Higgins F. Co. v. Oil Co., 125 La. 82 So. 206. Analyzing the cases on the subject we find that there are three views taken as to the nature of a land owner's right in the oil and gas: (a) that the land owner has no title to the oil and gas but a right to acquire it by reducing it to possession; (b) the land owner has a title to oil and gas qualified by the absence of a remedy against an adjoining owner taking it; and (c) that the surface owners have rights in common, of the same nature as the rights of percolating waters. It is impossible for the owner to sell any definite portion of the oil content of his land under either rule, as no property can pass until the property is ascertained. (Williston on Sales, 258; Sec. 4739 Wyo. C. S. 1910.) In De Moss v. Sample, 143 La. 243, it is held that oil and gas in the earth are not subject to ownership distinct from the soil. The Pennsylvania cases are collated and distinguished in Barnsdall v. Gas Co., 255 Pa. St. 338 where it was held that an instrument such as here involved is a lease. So much is apparent from the face of the instrument itself. (Meeks v. Min. Co., 124 S.W. 1084; State v. Evans, 9 Ann. Cas. 520; State v. Association, 132 Inn. 232.) The state does not grant a lease of the character in question here until oil is discovered. The custom of granting mining leases has existed for centuries. (Coke Littl. 53 B.) A careful review of the authorities of every state in the Union demonstrates that a mineral lease is a lease in fact as well as in name, even where the lease deals with minerals which are a part of the land. (Osborne v. Oil & Gas Co., 103 Ar. 175; Kline v. Oil Co. (Cal.) 140 P. 1; Palmer Co. v. Woodard (Ga.) 75 S.E. 480; Chappel v. Foster, 123 P. 870; Beatty Co. v. Blanton (Ky.) 245 F. 979; Coal Co. v. Peers, 150 Ill. 344; Haywood v. Fulmer (Ind.) 18 L. R. A. 491; Lacey v. Newcomb, 63 N.W. 704; Harlow v. Iron Co., 36 Mich. 113; Diamond Co. v. Min. Co., 70 Minn. 500; Austin v. Min. Co., 72 Mo. 535; Pelton v. Min. Co., (Mont.) 28 P. 310; Genet v. Co., 136 N.Y. 593; Woodland Co. v. Crawford, (Ohio) 34 L. R. A. 62, 44 N.E. 1093; Stinson v. Hardy, 27 Ore. 584; State v. Welch, 184 P. 786 (Okla.); Caldwell v. Fulton, 31 Pa. St. 475 and other cases cited; Young v. Ellis, (Va.) 21 S.E. 480; Carter v. Tyler (W. Va.) 43 L. R. A. 725; Gillette v. Treganza, 6 Wis. 343; U. S. v. Gratiot, 14 Peters 526.) The English and Canadian cases support the same principal. The right to open and exhaust new mines is, in the absence of mines already open, implied from the lease of lands for mining purposes generally. (Traer v. Fowler (C. C. A.) 144 F. 810.) A mineral lease for a term of years is either a lease of the land or a lease of that incorporeal hereditament in the land, known to the law as a profit a prendre, and is in no event a sale of the land or a conveyance of the real estate. (Tiffany on Real Property Vol. 2 p 1308; Smith v. Simons, 1 Root (Conn.) 318.) Easements or profits a prendre may be held for life in fee or for years. (Huff v. McCauley, 53 Pa. St. 206; Mayor v. Mabie, 13 N.Y. 151; State v. Welch (Okla.) 184 P. 786; Beardsley v. Kansas Gas Co., 96 P. 859.) An instrument granting all of the minerals is a conveyance of real estate. (Davis v. Texas Oil Co., 232 S.W. 550; Oil Co. v. Emerson, 298 Ill. 394, 131 N.E. 645.)

The state is estopped from confusing rights acquired by lease, by calling them sales. (U. S. v. Williamette Co., 54 F. 811.) State officials are estopped to deny the interpretation which representatives of the people have placed upon the Constitution for more than a quarter of a century. (Coloma v. Eaves, 92 N.E. 484 and cases cited.) There being no provision for a disposal of state lands except by sale or lease, the suggestion that the instrument in question is an operating agreement is untenable. (State v. Board, 20 Wyo. 162; Ch. 58 C. S. 1920.)

In the interpretation of statutes, words in common use are to be construed in their natural, plain, ordinary signification (Neilson v. Alberta, 129 P. 847; Lake County v. Rollins, 130 U.S. 662, 32 L.Ed. 1060,) except where they have acquired a technical meaning, (Endlich Int. Stat. 1st Ed. Sec. 2.) The terms "dispose of," "lease" and "sale" have a common meaning, and as such, are used in Section 5 of the Act of Admission. The term "dispose of" authorizes a mineral lease. (U. S. v. Gratiot, 14 Pet. 526.) Under the Federal Leasing Act of February 25th, 1920, the power to lease state granted lands is not restricted to agricultural lands; lands not known to be mineral in character on the date of the grant are not affected by subsequent discovery of mineral thereon. (Abraham v. Miner, 9 L.Ed. 408; Wyo. v. U.S. Adv. Op. 12 p. 453.) The state legislature is authorized to enact necessary laws for the leasing of all lands granted to the state (Art. XVIII, Sec. 4.) The term "rental" includes the term "royalty" since royalties are, in fact, rentals. (Atty. Gen. v. Mercer, 8 App. Cas. (Eng.) 767; U. S. v. Gratiot supra; Lehigh etc. Co. v. Bamfortd, 150 U.S. 665; Reynolds v. Hanna, 55 F. 800; Kissick v. Bolton, 134 Ia. 650; Meek v. Co. 124 S.W. 1089; 78 Am. & Eng. L. 2nd Ed., 782.) "Royalty" is another term for "rent" but is limited to rents due for the right or privilege of taking mineral or oil and gas out of designated land. (2 Thornton Oil & Gas, 387, Sec. 253 and cases cited; Taylor L. and T. 9th Ed. 369; Campbell v. Lynch (W. Va.) 94 S.E. 739; State v. Association, 132 Minn. 232.) The Constitution requires rentals from the lease of school lands to be placed in the school land income fund, to be used for current expenses of schools. The provisions of the Constitution on the subject were adopted from Nebraska with a construction by the Supreme Court of that state in State v. McBride, 5 Nebr. 102 to the effect that rents from leases are incomes to be used for the support of schools. The construction is decisive of the question here. (Crumrine v. Reynolds, 13 Wyo. 111; Cooley's Const. Lim., 7th Ed. 85; Tyler v. Tyler, 19 Ill. 155.) There is no conflict in the two provisions of the Constitution. The words "moneys derived from the sale or lease of Sections 16 and 36, etc." meant moneys arising from the sale of leases by way of...