Walls v. Evans

• Decision Date: 06 March 1928
• Docket Number: 1494
• Parties: WALLS v. EVANS [*]
• Court: Wyoming Supreme Court

265 P. 29

38 Wyo. 103

WALLS v. EVANS ^[*]

No. 1494

Supreme Court of Wyoming

March 6, 1928

APPEAL from District Court, Park County; BRYANT S. CROMER, Judge.

Applications by W. L. Walls and Lloyd I. Evans for a mineral prospector's lease. From the decision of the state board of land commissioners, rejecting the application of Walls and granting that of Evans, Walls appealed to the District Court. From a judgment reversing the action of the board, directing the cancellation of the lease to Evans, and ordering the board to issue a lease to Walls, Evans appeals.

Affirmed.

Brome &amp Brome, Paul R. Greever and Peter Q. Nyce, for appellant.

Sections 716-721, Chap. 58 C. S. provides for the granting of mineral leases upon state and school lands, and the establishment of rules governing mining operations carried on thereunder. There is nothing in the Act conferring a preference upon first applicants, State v. Board, 7 Wyo. 478; Board Rule # 64 gives preference to the first application accompanied by the rental and fee; the rule looks beyond the statute, U.S. v. Copper Co., 196 U.S. 207; U.S v. George, 228 U.S. 14; U.S. v. Dastervignes, 118 F. 199. Board rules promulgated for the exercise of power in excess of the statute are invalid, Meads v. U.S., 81 F. 684; Carr v. Gordon, 82 F. 373; Taylor v Kerchenal, 82 F. 497; U.S. v. Eaton, 144 U.S. 577; Caha v. U.S. 152 U.S. 211; U.S. v. Three Barrels of Whiskey, 77 F. 963. A regulation cannot change a law, Anchor v. Howe, 50 F. 366; Board v. Reynolds, 18 Wall. 71; Williams v. U.S., 138 U.S. 514; Knight v. U.S., 142 U.S. 161; Gage v. Gunther, 68 P. 710; Parson v. Venzke, 61 N.W. 1036. The Board is vested with broad discretionary powers, Cooper v. McCormick, 10 Wyo. 379; mandamus will not control judicial discretion, State v. Brooks, 14 Wyo. 393; State v. Board, 4 Wyo. 126; it may require action without designating how a subordinate body shall act, Hoole v. Kinkead, 16 Nev. 217; State v. Board, 7 Wyo. 478; Baker v. Brown, 12 Wyo. 198; Bucknam v. Johnson, 21 Wyo. 26. The appeal notice was not filed in time; the statute is mandatory and the appeal should be dismissed.

H. S. Ridgely, for respondent; W. L. Walls, pro se.

The statement of facts made in appellant's brief is not supported by the record; the Land Commissioner is without authority under the rules to withhold from filing any proper application for lease, 237 C. S., Parkhurst v. Pritchard, 17 Mich. 338; the rules are not in conflict with the statute; the case of Marsh v. Board, 7 Wyo. 478 was decided before the enactment of the statute in question; the case involved a grazing lease, but recognized the right of prior applicants. Authorities cited by appellant refer to cases where it is attempted by rule to take away a right conferred by an Act of Congress. The case of U.S. v. George, 57 L.Ed. 712, involved a departmental rule creating a defense not created by statute, the rule was condemned; no such objection may be consistently urged against the rule in question. Nearly all of appellant's authorities involve rules not authorized by statute, which were, of course, condemned. The rules involved in the present case are within the terms of the statute and therefore valid; the public has the right to participate in the leasing of the mineral lands of the state; respondent acquired a bona fide right under the rules of the Board; if the Land Board may lightly disregard its rules, statutory rights are violated. Cooper v. McCormick, cited by appellant is not in point, nor is the case of Irvine v. Brooks. The applications were not filed simultaneously; Rule # 64 requires the rental and fee to accompany the application, and an application has no standing under the rule unless accompanied by the rental and fee prescribed. The rule was adopted to facilitate the business of the Board, James v. Iron Works, 107 F. 597. Respondent having complied with the rules, the Board was without discretion to deny his application, Parkhurst v. Pritchard, 17 Mich. 338; the case of Miller v. Hurley cited by appellant involved a consideration of Rule # 75 of the Board, which contemplates the existence of a lease. Respondent's application was complete and the judgment of the court below should be sustained.

BLUME, Chief Justice. KIMBALL and RINER, JJ., concur.

OPINION

BLUME, Chief Justice.

The State Board of Land Commissioners, hereinafter called the Board, is, by Chapter 59, Wyo. Comp. Stat. 1920, authorized to grant oil or gas leases on state and school lands. Pursuant to this authority, it has been the custom to issue prospectors' leases, which are granted for a limited time and which, if oil or gas is found on the land, may lead to the issuance of operating leases, either to the holder of the prospector's lease or to some one else. The Commissioner of Public Lands is the Secretary of the Board, and as such receives the applications for all such leases, and he has been given the power to grant or refuse such applications, subject to the right of appeal to the Board. Sec. 237, W. C. S. 1920. On June 4, 1919, the Board adopted, promulgated and published certain rules and regulations in connection with the leasing and disposal of lands of the state, and among others, Rule 64, relating to mineral prospectors' leases, reading as follows:

"In the granting of mineral prospectors' leases, where the land is not leased, the lease is granted to the first duly qualified applicant who presents his application accompanied by the rental and fees."

The fees and rental fixed for a mineral prospectors' lease was at the time mentioned herein the sum of $ 211, as shown by a printed pamphlet published by the Commissioner of Public Lands in May, 1925, and which among other things provides: "All applications must be accompanied by the proper fees, otherwise they shall not be filed of record." And again: "If the land applied for is vacant at the time of filing, priority governs and the first qualified applicant is granted a lease." And again: "Fees collected by State Land Office: All papers must be accompanied by fees."

On February 23, 1927, the Commissioner of Public Lands received an application executed by Lloyd I. Evans, appellant herein, for a mineral prospector's lease on Section 36, T. 51 N., R. 101 W., which was then vacant land. The application was accompanied by only $ 1.00 and was accordingly not filed. But the Commissioner wrote to Mr. Evans that the application would be filed upon the receipt of $ 210 additional. On February 24, 1927, and before any additional money was received from Mr. Evans, W. L. Walls, the respondent herein, filed his application in due form for a mineral prospector's lease for the same land above mentioned, accompanied by the proper amount of fees, viz: the sum of $ 211. It is agreed herein that both of these applicants were properly qualified to make the application. The Commissioner did not mark the application of respondent filed, but wired Evans to forward the additional sum of $ 210 at once or that another application would be granted. That sum was thereupon wired and paid to the Commissioner, but this was some hours after the respondent had filed his application. Thereafter, and on February 25, 1927, the Commisisoner granted the application of the appellant and rejected that of the respondent on the ground that the application of Evans was prior in time. An appeal was thereupon taken to the State Board of Land Commissioners within the time provided by law, and a majority of the Board thereupon, and on March 3, 1927, confirmed the action of the Commissioner, and as we take it, and as seems to be agreed by the parties, upon the same ground as that taken by the Commissioner. The respondent thereafter brought an action in mandamus in this court to compel the Board to issue a lease to him. State ex rel Walls v. State Board of Land Commissioners, 36 Wyo. 302, 254 P. 491. We held that an action in mandamus was not the proper remedy, and that the respondent had an adequate remedy by an appeal to the district court as provided by Section 753, Comp. Stat. 1920. That decision was rendered on March 21, 1927, and the respondent thereupon took an appeal from the action of the Board to the District Court of Park County, taking such appeal within thirty days after the decision of the Board, as provided by Section 754, Comp. Stat. 1920. The trial court reversed the action of the Board, holding that the lease should have been granted to the respondent herein, and directing the cancellation of the lease to Evans, and ordered the Board to issue a lease to the respondent herein.

1. The notice of appeal was not marked filed in the district court of Park County, Wyoming, by the clerk thereof until April 4 1927, two days after the expiration of the thirty days allowed for the appeal under Section 754, supra, and the objection was accordingly made in the trial below and is made here, that the district court of Park County had no jurisdiction to review the action of the Board. It was shown, however, that the notice of appeal was actually received by the Clerk of the District Court of Park County on April 2, 1927, and within the thirty days above mentioned. The court accordingly directed the correction of the records, so as to show the receipt of the notice of appeal within that time. We think that the action of the court in this respect was proper, and that it had jurisdiction. An endorsement on a paper is not an essential act of filing, and it is deemed to be filed when it is delivered to or received by the proper officer, to be kept on file. A party who delivers a paper to the officer for filing is not to be prejudiced by the omission or failure of the officer to make an endorsement thereon and to keep it in the record. Tomlinson v. Tomlinson, 121 Kan....