STATE OF ARIZONA, SIDNEY P. OSBORN, JOE HUNT, ANA FROHMILLER, JOE CONWAY, DAN E. GARVEY, Members of and constituting the STATE LAND DEPARTMENT and O. C. WILLIAMS, State Land Commissioner, Appellants,
JOSEPHINE F. BOYD, as Guardian Ad Litem for GEORGE ALBERT BOYD, an incompetent person, and JOSEPHINE F. BOYD, wife, of GEORGE ALBERT BOYD, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.
Mr. Joe Conway, Attorney General, Mr. Earl Anderson, Chief Assistant Attorney General, and Mr. Stephen B. Rayburn, Assistant Attorney General, for Appellant.
Mr. Phil J. Munch, for Appellees.
[60 Ariz. 389] McALISTER, C.J.
This is an action by Josephine F. Boyd, and Josephine F. Boyd, guardian ad litem for George Albert Boyd, an incompetent person, against the State of Arizona, Sidney P. Osborn, Joe Hunt, Ana Frohmiller, Joe Conway and Dan E. Garvey, constituting the State Land Department, an O. C. Williams, State Land Commissioner, seeking an order construing patent No. 2560, for grant "S.L." land, issued by Sidney P. Osborn, Governor of the State of Arizona, and countersigned by Harry M. Moore, Secretary of State of Arizona, and decreeing the same to be a valid conveyance of the land therein described to George Albert Boyd and establishing a good title to the lands in him and Josephine F. Boyd, his wife. The land is described as follows:
"Tract No. Twenty-four (24); a subdivision of Section 16, Township 1 North, Range 4 East; G. & S.R.B. & M., as the same is plated and recorded in the office of the County Recorder of Maricopa County, Arizona, Book 23, at Page 48 Thereof, less East Three Hundred (300) feet excepting and reserving unto the United States rights of way for canals and ditches constructed by their authority, containing 4.82 acres more or less;"
On May 31, 1938, George Albert Boyd applied for appraisement of this land and three appraisers were appointed. They appraised it at $482, and the improvements, consisting of house, fence, trees, water, etc., claimed by George Albert Boyd, were appraised at $1,468. This and, together with other lands situate [60 Ariz. 390] in Maricopa County, Arizona, in Section 5, Township 1 N., Range 2 W.; in Sections 15 and 22, Township 1 N., Range 5 W.; in Section 16, Township 1 N., Range 6 W.; in Section 36, Township 4 N., Range 1 West; in Sections 20 and 21, Township 1 South, Range 2 W.; in Section 16, Township 4 South, Range 8 W.; in Section 8, Township 2 N., Range 4 E.; in Section 36, Township 1 S., Range 3 E.; in Section 33, Township 1 South, Range 7 E.; in Section 16, Township 2 S., Range 6 E., all of the Gila and Salt River Base and Meridian, comprising a total of 2,090.82 acres, was offered for sale and notice thereof, dated
August 3, 1938, was numbered 218, and Saturday, the 15th day of October, 1938, at 10 o'clock a.m. at the front door of the court house in the City of Phoenix, County of Maricopa, State of Arizona, was the time and place fixed by such notice for holding the sale.
The notice of sale was published in "The Messenger," a newspaper of general circulation in Phoenix, the state cap i tal of the State of Arizona, for ten successive weeks, and it was also published for ten successive weeks in the "Gilbert Enterprise," a newspaper published in Gilbert, Maricopa County, Arizona, of general circulation, nearest he location of the major portion of said land, the first publication appearing on August 5, 1938, and the last on October 7, 1938.
The land above described, 4.82 acres, and only 170 acres of the remainder of all of the lands offered for sale, lie nearest to the Town of Tempe, County of Maricopa, where there is, and was at the dates upon which said notice of sale was published, a newspaper of general circulation. On the 15th day of October, 1938, the sale was had and at such sale George Albert Boyd was the highest and best bidder, $482. Thereupon the State Land Department, by Gus Williams, its sales agent, issued its sales receipt No. 5910, to George Albert Boyd, showing the sale of real estate, [60 Ariz. 391] as above described to him for $482. Thereafter the State Land Department, by its duly authorized officers, executed and issued its certificate of purchase, No. 6670, to George Albert Boyd for said real estate and George Albert Boyd, having made payment in full to the State of Arizona, of all purchase money and such interest as may have been due, the State of Arizona issued to him patent No. 2560, conveying the 4.82 acres of land above described.
The sole question presented by this record is whether the procedure followed by the land commissioner in selling the land in question was in accordance with the Enabling Act, the Constitution, and the statutes of the State of Arizona in that the notice was published in the "Gilbert Enterprise" when there was a newspaper of general circulation published in Tempe, Arizona, which is nearer the land.
Section 28 of the Enabling Act provides, among other things, 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 at the county seat of the county wherein the lands to be affected, or the major portion thereof, shall lie, notice of which public auction shall first have been duly given by advertisement, which shall set forth the nature, time, and place of the transaction to be had, with a full description of the lands to be offered, and be published once each week for not less than ten successive weeks in a newspaper of general circulation published regularly at the state ...