State Ex Rel. McElroy v. Vesely , 40 N.M. 19 ( 1935 )

This is an appeal from a judgment dismissing an application for a peremptory writ of mandamus applied for by relator to compel the Commissioner of Public Lands to renew certain five-year leases of state lands which expired October 1, 1935. It is agreed by both the parties that there is but one question involved, and that is whether or not, under the New Mexico Enabling Act, the Constitution, and statutes, relator has such right to the renewal of a five-year lease of grazing lands that the Commissioner of Public Lands can be forced by mandamus to issue it.

The lands in question were granted to the State of New Mexico to be held in trust and disposed of in the manner provided in section 10 of the Enabling Act, the portion of which necessary to the determination of this case is as follows:

"Said lands shall not be sold or leased, in whole or in part, except to the highest and best bidder at a public auction to be held in the county seat of a county wherein the lands to be affected * * * shall lie: * * * Provided, That nothing herein contained shall prevent said proposed state from leasing any of said lands referred to in this section for a term of five years or less without said advertisement herein required. * * *

"Every sale, lease, conveyance, or contract of or concerning any of the lands hereby granted or confirmed, or the use thereof or the natural products thereof, not made in substantial conformity with the provisions of this act shall be null and void, any provision of the constitution or laws of the said state to the contrary notwithstanding."

By sections 9 and 10 of article 21 of the Constitution of New Mexico, the state and its people consented to the provisions of the Enabling Act with reference to the public lands granted and confirmed to the state in trust, and the conditions upon which the grants were made; and made it irrevocable, without the consent of Congress and the people of the state, through an amendment of its Constitution.

The law with reference to the leasing of public lands in New Mexico, material to the determination of this suit, is as follows:

Section 132-112. "All lands owned by the state shall be subject to lease as provided by law."

Section 132-113. "The annual rent to be charged by the commissioner of public lands for grazing lands belonging to the state, shall be based upon the classification and valuation as herein provided for, but in no event shall it be less than three cents per acre, and provided, that this act shall not apply where lands are advertised and let to the highest bidder," etc.

Section 132-114. "All leases for grazing or agricultural purposes shall be for a term of not exceeding five years except as hereinafter provided in this article."

Section 132-120. "Any lessee of state lands desiring to renew his lease shall make application in writing to the commissioner on or before the first day of August preceding the expiration of his lease; and any such lessee who has in good faith complied with all the requirements of his lease shall have a preference right to release for another term of years in accordance with the laws in force at the time of the expiration of his lease."

Ordinarily mandamus lies only to enforce a clear legal right (Carson Reclamation District v. Vigil, 31 N.M. 402, 246 P. 907) against one whose clear legal duty it is to perform the act necessary to the enjoyment of such right. 38 C.J. 600. If relator is entitled to the remedy of mandamus, then under the terms of his original lease and the law applicable thereto, which is read into and is a part of it, he has a clear legal right to a renewal of the leases and it is the clear legal duty of the Commissioner of Public Lands to renew them. If such a right and duty exists, it is by virtue of the original lease and section 132-120, Comp.St. 1929, Ann., quoted. Section 132-123 has no reference to renewal leases, as such.

No such right can exist irrespective of what the Constitution or statutes of this state may provide. The original lease would be in effect for a longer term than five years at the option of the relator and this is foreclosed by the Enabling Act. If by a preference right to release for another term of years, as appears in said section 132-120 of the statutes, is meant such clear legal right that mandamus should lie to enforce it, then the statute runs counter to the Enabling Act and is to that extent void; though we find it unnecessary to hold that to be its meaning. It is sufficient here to say that no such clear right could or does exist.

This question has been before the Supreme Courts of Arizona and Wyoming, in which Enabling Acts containing substantially the same provisions were construed, and it was held by each of those courts that statutes providing for a preference right of renewal of the same character of lease were void in so far as they purported to give an absolute right of renewal. Campbell v. Muleshoe Cattle Co., 24 Ariz. 620, 212 P. 381, 384; State v. State Board of School Land Commissioners, 20 Wyo. 162, 122 P. 94. We can add nothing to the reasoning in these opinions.

It is argued by relator that section 132-120, Comp.St. 1929, Ann., is to be distinguished from the laws of Arizona and Wyoming on the same subject, in that the Legislature reserves the right to change the conditions of leasing so that the laws in force at the time of the expiration of the lease might permit the impairment of the obligation to lease. Counsel states: "This provision eliminates the contention that there is a contractual obligation which the legislature may not impair. The legislature may change its rules every five years if it so desires, but if it has laid down rules which are in force at the time the lease expires, then the commissioner is under the duty to issue the new lease in accordance with the rules as they exist at that time."

But this has reference only to its regulations with reference to leasing the lands. It does not affect the provision which purports to give a preference right to release "in accordance with the laws in force at the time of the expiration of his lease" for another term of years to the holder of the original lease. This statute is void as in contravention of the Enabling Act, if the Legislature intended thereby to confer an absolute legal right to renew such leases, which, however, as we shall see later was not the intention. We do not hold, therefore, that the statute in question is void, but we do hold that there cannot exist, by virtue of any statute that has been or can be passed by the Legislature, an absolute right of renewal of such lease under any terms or conditions, for it would violate the Enabling Act.

We do not hold that relator has not equities that should be considered by the Commissioner of Public Lands in exercising his judgment as to whether he will renew such leases. The interest of the state is of course to be first considered; but this does not have reference entirely to the amount of rental the state receives from its grazing lands. Its financial interest is inseparable from the great livestock industry of the state and the financial welfare of those engaged in this business. It has been the policy of the state to recognize equities in those who have built up ranching businesses in the state that should be considered by the Commissioner of Public Lands in passing upon applications for renewal of expiring leases, and the absence of such general policy would be injurious if not destructive to that industry and in the long run seriously detrimental to the trust created or confirmed by the Enabling Act.

We have heretofore stated that section 132-120, Comp.Stats.Ann. 1929, is void as in contravention of the Enabling Act if the Legislature intended thereby to confer an absolute legal right to renew such leases. Then we come to the question of whether or not we are justified in construing the statute as being consistent with the Enabling Act, and if consistent therewith then determine its meaning. That section 132-120, Comp.St.Ann. 1929, has reference to all leases issued by the Commissioner of Public Lands is patent by its terms. It provides that "any lessee of state lands desiring to renew his lease," etc. This necessarily includes all lessees and all leases of every description and kind, and therefore refers to leases of five years and less which the Commissioner of Public Lands could make without advertisement and sale at public auction. Indeed, in view of section 132-112, Comp. St.Ann. 1929, which reads, "All lands owned by the state shall be subject to lease as provided by law," and section 132-114, Comp.St.Ann. 1929, the material part of which is as follows: "All leases for grazing or agricultural purposes shall be for a term of not exceeding five years except as hereinafter provided in this article," and of the fact that there is no provision in the statutes authorizing the leasing of state lands for a longer term than five years, it may be doubted that the commissioner is authorized to lease them for a longer term. If this is true, then section 132-120, supra, could only refer to leases of five years or less. It could not reasonably have been the intent of the Legislature to thereby give an absolute right of renewal, for it would not only run counter to the Enabling Act, just then enacted by the Congress and which must have been closely studied by the authors of the State Land Code, but inconsistent with section 14 (section 132-114, Comp.St. Ann. 1929), supra, of the same act. The Supreme Court of Wyoming in the case of State v. State Board of School Land Com'rs, supra, stated:

"And, clearly, without violating the compact completed upon its acceptance of the grant with the limitations and conditions imposed thereby, the state cannot at any one time enter into a contract leasing any such lands for a period longer than five years.

"It cannot be doubted that the state may lease any of the school lands repeatedly for a period not exceeding five years, and successively to the same person, under proper legislative regulations, so that the mere fact that a second or subsequent lease is made to a prior lessee of the same land will not constitute a violation of the terms of the grant. And we are not prepared to say that the land board may not lawfully be authorized to consider and act upon reasonable grounds ofpreference in passing upon two or more applications for the same land. But that is quite a different matter from a contract or statutory obligation, secure against change by subsequent legislation, to grant and execute a lease covering a period exceeding the limitation upon the power of the state in that particular, and that upon no other consideration than the agreed rental." State v. State Board of School Land Com'rs, 20 Wyo. 162,122 P. 94, 97.

The Supreme Court of Arizona in the Campbell Case, supra, construing section 37 of Arizona Land Code (Laws 2d Sp.Sess. 1915, c. 5, § 37, as amended by Laws 1921, c. 79), which is as follows: "Upon application made to the commissioner, not less than thirty (30) nor more than sixty (60) days prior to the expiration of the lease, the lessee shall have a preferred right of renewal, bearing even date with the expiration of the old lease, for such term not longer than five (5) years, as the commissioner may deem proper, at a re-appraised rental," said: "We think that the preferred right of renewal given to the lessee is not an exclusive or absolute right, but is used in the relative sense of ``better' or ``superior' right, and implies a hearing or investigation to determine the quality of such right." The Arizona Supreme Court, it is true, construed section 37 in connection with another section of that Code providing generally for leasing land in cases where there were two or more applicants; but this was done to arrive at the meaning of the words "preferred right of renewal" in the statute construed. In view of the Enabling Act and section 132-114, Comp.St.Ann. 1929, quoted, we hold that the Legislature did not intend such right of renewal to be absolute, but as the Supreme Court of Arizona held so we hold; that it is used in the sense of a better or superior right — a question for investigation and the exercise of judgment and discretion by the Commissioner of Public Lands.

In case of conflicting applications the Commissioner of Public Lands should investigate all applications, using discretion and judgment, and award the lease, should there be contests or more than one application therefor, to the one who has the better right under the facts of the case. In this sense the act does not violate the Enabling Act, but the district court reached the correct conclusion and entered the proper judgment.

The judgment of the district court will be affirmed and the cause remanded. It is so ordered.

SADLER, C.J., and HUDSPETH, J., concur.