STATE OF ARIZONA, ex rel. JOE CONWAY, Attorney General, Appellant,
THE STATE LAND DEPARTMENT and O. C. WILLIAMS, State Land Commissioner, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge.
Reversed and judgment rendered.
Mr. Joe Conway, Attorney General, and Mr. A. R. Lynch, Assistant Attorney General, for Appellant.
Mr. Joe Conway, Attorney General, Mr. Thomas J. Croaff, Assistant Attorney General, and Mr. M. C. Burk, for Appellees.
Stanford, C. J. LaPrade and Morgan, JJ., concur.
Stanford, C. J.
[62 Ariz. 249] This is an appeal from a judgment rendered in an action for a declaratory judgment to determine the rights and duties of the state land commissioner with respect to the construction of state and federal highways over school and institutional lands under the control of the state land department. The complaint was filed by the State of Arizona upon relation of the attorney general at the instance of the state highway department, in which the state prayed for a declaration of the rights of the state and the duties and responsibilities of the state land commissioner arising under the Enabling Act, the constitution, and statutes of the State of Arizona relative to the administration of state land.
The proceeding was prompted by the fact that the land commissioner had theretofore issued an order that all outstanding easements held by the state and formerly issued to the state highway department for highway purposes should be surrendered. This order [62 Ariz. 250] in the nature of a regulation also provided that all easements or permits theretofore issued were to be reissued at the option of the land commissioner on a lease basis under the provisions of Sections 11-1001, 11-1002 and 11-1003, Arizona Code Annotated 1939; that these new permits or easements were to be in the nature of leases to extend for the term of five years and at a fixed rental of $ 5 per acre per year. A further regulation was to the effect that areas from which gravel and other road-building materials were to be removed would have to be included in leases to extend for a period of two years terminable at will of the land commissioner, and required a royalty of 3 cents per yard for rock, sand and gravel.
Plaintiff further alleged (and admitted by the land commissioner):
"That to comply with these orders it will cost the State approximately $ 50,000 for existing rights of way and gravel pits and approximately $ 40,000 per annum for rentals and royalties at the present time and in continuing years, if no further rights of way are taken by the state.
"That the plaintiff cannot secure Federal Aid for highways and post roads under such a system of charges and restrictions and cannot construct non Federal Aid highways for the State over and across school and institutional State lands."
It was the position of the land commissioner in the court below:
"That the said State Land Department and the said State Land Commissioner, defendants, are not lawfully authorized to sell, lease, convey, contract with or grant to said Highway Department of the State of Arizona, any of said lands so granted and confirmed as aforesaid, or any leaseholds, timber or other products of the said land, other than in the manner and form and for the consideration and compensation fixed or ascertained in the manner aforesaid; that the defendants State Land Department and the State [62 Ariz. 251] Land Commissioner are not authorized to grant to said Highway Department the use of said lands for rights-of-way, permits, easements, or uses by the said Highway Department, save in the manner and form as provided in said Enabling Act, the ...