United States v. Ervien

• Decision Date: 29 October 1917
• Docket Number: 4673.
• Citation: 246 F. 277
• Parties: UNITED STATES v. ERVIEN, Com'r of Public Lands of New Mexico.
• Court: U.S. Court of Appeals — Eighth Circuit

246 F. 277

UNITED STATES v. ERVIEN, Com'r of Public Lands of New Mexico.

No. 4673.

United States Court of Appeals, Eighth Circuit.

October 29, 1917

Appeal from the District Court of the United States for the District of New Mexico; Wm. H. Pope, Judge.

Suit by the United States of America against Robert P. Ervien Commissioner of Public Lands of the State of New Mexico. From a decree for defendant, complainant appeals. Reversed and remanded, with directions to enter decree for complainant.

PUBLIC LANDS 65-- GRANTS TO STATES FOR INTERNAL IMPROVEMENTS-- APPLICATION OF PROCEEDS.

By Enabling Act June 20, 1910, c. 310, 36 Stat. 557, Congress granted and confirmed to the state of New Mexico, then being organized, large bodies of public land for 19 different purposes, to each of which was allotted separately and severally a specified quantity. Section 10 declares that all lands granted shall be held in trust to be disposed of in whole or in part only in the manner provided and for the several objects specified, and that the natural products and money proceeds of any of such lands shall be subject to the same trust as the lands producing the same. The act further provided means for the disposition of the land and investment of the proceeds and that the proceeds shall be deposited in funds corresponding to the grant under which the particular land producing such moneys was by the act conveyed or confirmed, and further that no moneys shall ever be taken from one fund for deposit in any other, or for any object other than that for which the land producing the same was granted or confirmed. Held, that the grant upon the conditions and limitations prescribed having been accepted by Const. N.M. art. 21, Secs. 9, and 10, and some of the trusts being for such purposes as the establishment of insane asylums, etc., Act N.M. March 8, 1915 (Laws 1915 (2d Leg.) c 60), authorizing the Commissioner of Public Lands to expend annually three cents on the dollar of the annual income from sales and leases of lands for making known the resources and advantages of the state, particularly to home seekers and investors, is in its application to the proceeds of such trust lands invalid, and compliance therewith by the Commissioner of Public Lands will be enjoined.

Summers Burkhart, U.S. Atty., of Albuquerque, N.M.

Frank W. Clancy, Atty. Gen., for appellee.

Before HOOK, SMITH, and CARLAND, Circuit Judges.

HOOK Circuit Judge.

This is a suit by the United States to enjoin a threatened breach of trust by the Commissioner of Public Lands of the State of New Mexico in respect of the proceeds of lands granted and confirmed to the state on its admission to statehood. Upon submission of the cause on petition and answer, the trial court entered a decree for the defendant, and the government appealed. The material facts are undisputed.

By the Enabling Act of June 20, 1910 (36 Stat. 557), Congress granted and confirmed to the new state then being organized large bodies of public lands aggregating about 3,000,000 acres, for 19 different purposes, to each of which was allotted separately and severally a specified quantity. The lands were to be selected under the direction and subject to the approval of the Secretary of the Interior from the surveyed, unreserved, unappropriated, and nonmineral public lands of the United States within the limits of the state. Lands actually or prospectively valuable for the development of water power or for hydroelectric use or transmission were reserved. Section 10 of the act provides:

'That it is hereby declared that all lands hereby granted, including those which, having been heretofore granted to the said territory (of New Mexico), are hereby expressly transferred and confirmed to the said state, shall be by the said state held in trust, to be disposed of in whole or in part only in manner as herein provided and for the several objects specified in the respective granting and confirmatory provisions, and that the natural products and money proceeds of any of said lands shall be subject to the same trusts as the lands producing the same. Disposition of any of said lands, or of any money or thing of value directly or indirectly derived therefrom, for any object other than that for which 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.'

The act also subjected the donations to the following limitations and restrictions: No mortgages or other incumbrances shall be given to any person or for any purpose under any circumstances. The lands shall not be sold or leased, in whole or in part, except to the highest and best bidder at public auction to be held at the county seat where the lands to be affected, or the major portion, lie. Notice of the auction of a prescribed character must be given in a manner and for a length of time specified. Minimum prices varying according to locations are prescribed. Separate funds are to be established for each of the several objects for which the grants and...