Appellee, by motion for rehearing and brief in support thereof, asks us to give further consideration to the proposition that the action taken by the commissioner of public lands was illegal and void, as being in contravention of the provisions of the Enabling Act, and particularly section 10 thereof. So far as the motion for rehearing is concerned, appellee presents only the federal questions involved in the litigation. The first point relied upon is that the state could not delegate to its commissioner of public lands authority to legislate or to determine the policy of the state in the premises. The argument proceeds upon the theory that the state is not the owner of the lands granted to it by the Enabling Act.
It has been held by this court to the contrary in at least three cases. See Makemson v. Dillon, 24 N.M. 302, 171 P. 673; State ex rel. Evans v. Field, 27 N.M. 384, 201 P. 1059; Neel v. Barker, 27 N.M. 605, 204 P. 205.
It is true, of course, that the grant was impressed with a trust, but this does not detract from the title which the state has in the lands. The Enabling Act provides that a sale or other disposition of the land or natural products thereof, not made in substantial conformity with the provisions of the act, shall be null and void, but it is nowhere said that the lands granted *Page 175 shall in such cases revert to the government. It is further provided that the terms of the trust agreement relative to the disposition of the lands and the products thereof may be enforced by proceedings at law, or in equity, to be prosecuted by the Attorney General of the United States, but it is nowhere suggested that the grant itself could be set aside, and, as pointed out in our former opinion, no proceedings have ever been commenced by the United States Attorney General challenging the right of the state to reserve the minerals when disposing of the public lands, although it has been the invariable custom for the territory and state, through its officers intrusted with the administration of such lands, to insert reservations of minerals in contracts and conveyances of its public lands for a quarter of a century. And the fact that no actions have ever been commenced by the federal law officers to restrain such practices is a strong indication that they did not regard such acts as a breach of trust.
Appellee contends that the lands being granted to the state, and in trust, the state occupied the position of the ordinary trustee, and could not delegate any of its powers respecting the policy as to the disposition of said lands, that the Legislature might fix the policy with respect to the retention of the mineral estate in the lands when a sale was made, but that the land commissioner could not. It should be borne in mind that there is a difference between the capacity and mode of the discharge of a trust by a trustee who is a person, and the state, which is a body politic, which must of necessity act through its duly authorized agents and officers. The state is defined as "a body politic or society of men, united together for the purpose of their mutual safety and advantage by the joint efforts of their combined strength." Black's Law Dictionary, citing Cooley's Constitutional Limitations. It must be remembered that it was this society of men who formed and adopted the Constitution which reposed the power in the commissioner of public lands to "select, locate, classify, and have the direction, control, *Page 176 care and disposition of all public lands, under the provisions of the acts of Congress relating thereto, and such regulations as may be provided by law."
Says Perry on Trusts, par. 41:
"If a state accepts a trust by grant or bequest, it must act through its legislative powers in administering the trust, or in creating or appointing agents or officers to perform the duties which it assumes, as the United States acted in relation to the bequest of James Smithson in trust for the establishment of the Smithsonian Institution for the increase and diffusion of knowledge among men."
And again at paragraph 409:
"But it must be observed that the appointment of an attorney, proxy, or agent is not necessarily a delegation of the trust. The trustee must act at times through attorneys or agents, and, if he determines in his own mind how to exercise the discretion, and appoints agents or instruments to carry out his determination, he cannot be said to delegate the trust."
The land commissioner and the Legislature got their power from the same source; that is, from the people and their Constitution, and within their respective spheres of duties and responsibilities are of equal dignity. In fact, the Enabling Act seems to contemplate that the land be selected at least by the executive department of the state, and not by the legislative department. As we said in Evans v. Field, supra:
"In order to avail themselves of the grant, the people in their Constitution created the office of commissioner of public lands * * * and clothed him with power to select," etc.
The Constitution, after its preparation by the Constitutional Convention, was considered by Congress, and the general resolution thereof of August 21, 1911, No. 8, was adopted, declaring that New Mexico is admitted to the Union inaccordance with the terms of the Enabling Act. If any objection had been apparent to the repository of power by the Constitution makers with respect to the public lands, doubtless the Congress would have directed the submission of amendment by blue ballot, as was done in other particulars. It is doubtless true that the Legislature has the power within constitutional limitations to restrict the powers *Page 177 of the land commissioner, but, as before seen, that executive officer was by the Legislature in 1912 invested with jurisdiction over the public lands, "except as may be otherwise specifically provided by law." When the Legislature and the Congress seem to acquiesce in this repository of power,, and no complaint has been manifested by the federal law officers charged with the enforcement of the trust provisions with respect to the manner of using the power, we are constrained to believe that there has been no improper delegation of the trust power, if in fact it can be said to have been delegated. The second point urged by appellee is that the commissioner had no discretion and no power to negotiate subsequent to the sale at public auction. If, as we have said, the commissioner had the power to reserve the minerals when making a sale of the lands, he had the power to proclaim in advance of sale that the formal contract to be entered into within 30 days after notice of the acceptance of the bid should contain reservations of minerals. While the advertisement did not say that in so many words, we are satisfied with our previous holding that the advertisement contains sufficient reference to possible reservations which might be inserted, to put the prospective purchaser on notice that the reservations probably intended were those which by invariable practice had been inserted in similar contracts from the time when the first one was made.
The third point relied upon by appellee is that "the court erred in applying the doctrine of Neel v. Barker, 27 N.M. 605,204 P. 205, to this case," and argue that the decision was erroneous. It is true a different question was dealt with in Neel v. Barker than that existing in the case at bar. But the conclusion drawn from the efforts of appellee to neutralize the reasoning in that case does not help him any. In support of his contention, appellee, in his brief on motion for rehearing, argues:
"By the use of the word `land' the Congress of the United States intended to apply the definition contained in Campbell v. Flying V Cattle Co., supra, and, if that were not true, *Page 178 then certainly by the use of the term `the natural products thereof' minerals are included, because there can be no escape from the conclusion that minerals are a natural product of the land."
As said in the original opinion, we are not able to agree with the appellee that the Congress, by the use of the word "land," intended to apply the definition contained in Campbell v. Flying V. Cattle Co., 25 Ariz. 577, 220 P. 417, as follows:
"Land has * * * `an indefinite extent, upwards as well as downwards; * * * whatever is in a direct line between the surface of any land and the center of the earth belongs to the owner of the surface. * * * So that the word "land" includes, not only the face of the earth, but everything under it or over it.'"
Now, then, if appellee is correct in his statement that "there can be no escape from the conclusion that minerals are a natural product of the land," which he must maintain in order to persuade that Neel v. Barker is wrong, then he is confronted with the provisions of section 10 of the Enabling Act which do not support his contention that the Congress by that act declared an intention adverse to a severance of the estates in the land.
The Enabling Act does not in terms put any restriction upon the right to dispose of mineral land, except as to manner of advertising and sale (assuming minerals to be included within the meaning of "natural products"). The prohibition against sale of mineral lands is statutory. This we have construed as a prohibition on sale of the mineral content, not the surface. In this construction of our own statute, the Enabling Act is not offended.
The objection under the Enabling Act is that the advertisement did not contain a "full description of the lands to be offered," and that a negotiated contract subsequent to the vendue offends the principle of a sale at auction.
The Enabling Act requires that the advertisement contain a "full description of the lands to be offered." It cannot be maintained that the word *Page 179 "lands" is all-inclusive, because later in the same section provision is made for the separate sale of "timber or other natural products of such land," and, in referring evidently to what is left after such products have been sold — after a severance of estates the term "the lands themselves" is employed. Thus, so far as the Enabling Act is concerned, there is no question, but the state is at liberty to dispose of the entire fee, or of the natural products and the "lands themselves" separately, as it may choose.
It was undoubtedly essential to the sale that it be "at a public auction," and to "the highest and best bidder." In that sense, a "negotiated contract" after the auction would be objectionable. If, in fact, the commissioner advertising and receiving bids for the sale of the land or products and striking off the same to the highest and best bidder should afterwards negotiate a different contract than that advertised, so that all bids and bidders were not on the same basis, the objections made by appellee would no doubt lie. But "negotiation" as used in the opinion means only the mode of determining and agreeing upon "such other conditions, obligations, reservations, and terms as may be required by law." It does not mean negotiations to exclude in favor of the successful bidder any such conditions, obligations, reservations, or terms, nor to include in favor of the state any others not "required by law." Holding, as we have, that the mineral reservation inserted in the contract was "required by law" within the meaning of the advertisement, all bidders had or were at least chargeable with the same notice, and contemplated the same contract. There was no violation or evasion of the requirement that the sale be at public auction.
That the "lands themselves" were fully described in the advertisement is not questioned. The objection to the description is merely that the intended mineral reservation is not set forth. But, if reference to it as a reservation "required by law" gave such notice of it as satisfied the requirement of a sale at public *Page 180 auction, as we hold it did, we think it also satisfies the requirement as to description.
We commend the diligence of counsel, but upon a careful reconsideration are unable to perceive that the acts done in the case by the commissioner of public lands are in violation of any controlling congressional enactment.
The motion for rehearing is denied.
PARKER, C.J., and WATSON, J., concur.