STATE OF ARIZONA, SIDNEY P. OSBORN, as Governor of the State of Arizona; DAN E. GARVEY, as Secretary of the State of Arizona; JIM BRUSH, as Treasurer of the State of Arizona; JOE CONWAY, as Attorney General of the State of Arizona; ANA FROHMILLER, as Auditor of the State of Arizona; and O. C. WILLIAMS, as Land Commissioner of the State of Arizona, Appellants,
W. C. DAVENPORT, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment affirmed.
Mr. Joe Conway, Attorney General and Mr. Thomas J. Croaff, Assistant Attorney General, for Appellants.
Mr. Blaine B. Shimmel, for Appellee.
[61 Ariz. 356] ROSS, J.
The question for decision is what officer or agency of the state has authority to sell and convey lands acquired by the state through foreclosure of its mortgage liens. While such heretofore has been exercised by the governor, secretary of state and state treasurer, the title companies and others have recently questioned the correctness and legality of such conveyances, and to have such question settled and determined plaintiff Davenport has instituted this proceeding.
Those who dispute the right of the governor, secretary of state and state treasurer to deed such property to purchasers insist that the proper person or authority to make such conveyance is the state land department, acting by and through the state land commissioner.
The state was the owner of the northeast quarter of the northeast quarter, section 12, township 2 north, range 1 east, Gila and Salt River Base and Meridian, Maricopa County, having acquired it through foreclosure [61 Ariz. 357] of a mortgage given as security for a loan from the state permanent school fund. The appellee Davenport on October 27, 1941, at a public sale of such land by the state, bid for it the sum of $6,600 cash, and such being the highest and best bid received, it was accepted by the state, and
in due course the governor, secretary of state and state treasurer deeded it to appellee.
This proceeding is in the nature of an action to quiet title, and it also seeks a declaratory judgment establishing plaintiff's title to the premises. The trial court gave judgment in favor of plaintiff, from which the state has appealed, and in support of the appeal contends that the judgment should have been in its favor.
The state's right and power to sell the land is not in question; the validity of all the proceedings in connection with the disposition of the state's title is admitted. The only question for decision is who, under the law, had the power and right to make the sale and execute the deed of the premises to the plaintiff, the governor, secretary and treasurer, or the state land commissioner.
The Act admitting Arizona to statehood grants to the state, in addition to grants theretofore made to the territory, large areas of institutional and public school lands. It was not until 1915 that the state legislature passed legislation (second special session, chapter 5) providing for the disposition of such lands. The title of such act is a fair index to its contents, and so far as here material is as follows: "An act to provide a code for the systematic administration, care and protection of the state lands and vesting the necessary powers therefor in a department, to be known as the State Land Department, and creating the office of Commissioner of State Lands to carry out the provisions hereof;... to provide [61 Ariz. 358] for the establishment of special funds for the several purposes for which lands were granted to the State of Arizona by the Enabling Act or otherwise; and for the disposition of the receipts of such lands;...."
The Act provides for a state land department, consisting of the governor, secretary of state, treasurer, attorney general and the auditor, and authorizes this body to appoint a state land commissioner who, under the direction of the department, is given charge and control of all lands owned by the state (with exceptions immaterial here), with full power to administer the same in accordance with the terms of the Act. In Section 68 of the Act it is provided, "... the commissioner shall issue to the purchaser a patent therefor... signed by the Governor and countersigned by the Secretary of State."
The evident intent of the legislature, as here expressed, is that when the title conveyed is directly from the sovereignty it shall be executed by the commissioner who makes the sale, along with the governor and secretary of state. Such provision, therefore, has doubtful application to a situation like the present one, since Davenport derives his title through an execution sale issued upon a judgment of ...