After a motion for rehearing had been overruled a mandate was issued requiring the district court to set aside its judgment and to dismiss the appellee's suit. It is now proposed, upon appellee's motion, made long after a rehearing was denied, to recall the mandate upon the asserted ground that the Commissioner of Public Lands has stated orally to counsel that he will enterhis appearance in the district court if a new trial is had therein, as contemplated by the proposed new mandate.
I am of the opinion that the trial court had no jurisdiction of the cause originally for the reasons stated in my dissenting opinion, and therefore that we could only order the case reversed and dismissed by the district court. This is the first proceeding in this state involving the right to public land or its use, that was not initiated before the Commissioner of Public Lands.
But assuming that the majority are correct in holding that the state is an indispensable party to this suit, and assuming that the court has jurisdiction of the subject matter, the legislature alone may authorize or require it to sue or be sued. I have found no statutory authority, and none has been cited by counsel or the majority, that authorizes the Commissioner of Public Lands to enter his appearance or that of the state in this cause.
The question raised in the district court was not whether the Commissioner of Public Lands was an indispensable party or could be made a party, but whether the state of New Mexico was such party. In the absence of a specific statute authorizing the state to be sued in this character of action, the Commissioner of Public Lands cannot enter his own appearance or that of the state, so that either will be bound by any judgment entered.
We held in State ex rel. Evans v. Field, 27 N.M. 384, 385,201 P. 1059, 1060, that a suit against the Commissioner of Public Lands, as such is a suit against the state. The effect of that decision is that if the state cannot be sued the Commissioner cannot; that the mere entry of his appearance in the case could not affect the rights of the state or authorize a judgment that would *Page 308 bind it or the commissioner. The rule regarding suits against public officers, and particularly against the Commissioner of Public Lands, is stated in the Evans Case, as follows:
"Where the contract is between the individual and the state, any action founded upon it against defendants who are officers of the state, the object of which is to enforce the specific performance by compelling those things to be done by the defendants which, when done, would constitute a performance by the state, or to forbid the doing of those things which, if done, would be simply breaches of the contract of the state, is in substance a suit against the state itself, and within the prohibition of the Constitution. * * *
"On the other hand, where the law directs or commands a stateofficer to perform an act under given circumstances, which performance is a mere ministerial act, not involving discretion, mandamus will lie to compel the action, notwithstanding performance of the state's contract may incidentally result. In such a case the action is not really upon the contract, but is against the officer as a wrongdoer. He is, under such circumstances, not only violating the rights of the relator, butis disobeying the express command of his principal, the state. Injunction will likewise lie to restrain illegal action of a state officer, notwithstanding a breach of the state's contract may thus incidentally be prevented. Upon this subject there are many cases, only a few of which need be noticed."
The majority opinion and the result of this motion are calculated to mislead the trial court and counsel into the belief that if the Commissioner of Public Lands enters his appearance in the case, the objection of appellant that the state is an indispensable party that cannot be sued, is thereby eliminated. In other words, that the entry of the appearance of the Commissioner of Public Lands would authorize a suit against the state, notwithstanding the majority holding that the state is an indispensable party and cannot be sued.
There is no contention that the Commissioner had failed to perform any duty required of him by law, or that he had disobeyed any express command of his principal, required by a legislative Act. Under these circumstances any attempt to settle the controversy in this case by making the Commissioner of Public Lands a party (if the majority opinion is correct) would be a suit against the state (State ex rel. Evans v. Field, supra); and as the opinion of the majority will be the law of the case upon remand, the whole proceeding will effect nothing and prolong litigation that has been settled by the majority opinion.
The motion to recall the mandate should be denied. *Page 309