(dissenting):
I must dissent from the majority opinion because there has been an insufficient showing made by the appellants to sustain the heavy burden which must be shouldered by a party urging repeal by implication.
The appeal on this point is unusual because the basic position of appellants relates to two old statutes, one of 1926 and the other of 1928. Thus there is this long period of administrative and judicial interpretation of the two as being compatible. Also there is the most persuasive argument that the 1928 Act was passed specifically to correct a deficiency in the procedure under the 1926 Act. The relationship of the two was then fully considered by Congress and there was included no express repeal and no express language to indicate the second Act superseded the first. When Congress was so specifically considering in 1928 such a narrow point — condemnation of Pueblo lands in New Mexico — and the procedural problem which had arisen in a specific condemnation proceeding under the 1926 Act, it certainly should be assumed that a repeal would have been expressed had it been intended. Thus it is unrealistic to assume a repeal by implication these fifty years later. The only problem in 1928 was the joinder of the United States under the 1926 Act, and this was all the 1928 legislation was intended to correct. The last portion of the 1928 Act which refers to rules of the agency is no more than a typical reference to regulations for the handling of litigation or negotiated settlement of condemnation actions. It cannot be construed as a grant of authority to control in any way a condemnation proceeding in the courts.
As indicated above, there has been a long judicial interpretation of the 1926 Act, and it has been used a number of times. It was considered in 1957 in State of New Mexico v. United States, D.C., 148 F.Supp. 508, and there is no reason to infer that it was not as fully and carefully considered then as it is now. There is also no reason to infer that the arguments were not the same then as they now are, and just as well they could have been more complete. The Acts of 1926 and 1928 are clearly compatible and have been construed together these fifty years. The procedural problem relating to the position of the United States in the condemnation proceedings was clarified in 1928 and this was all that was needed and was the sole reason for the legislation.
*1382I am also unable to agree with the majority opinion as to what is “legislative history,” and cannot accept as such letters from the departments concerned nor isolated conversations on the Senate or House floors between individual members.
The Reorganization Act and subsequent legislation of a general nature, such as the Pueblo Lands Act, does not come within the doctrine of repeal by implication, because of the specific nature of the earlier Act and the general nature of the later ones. An attempt of the appellants to add all the unrelated points together, including Acts for negotiated disposition of lands, to meet the requirements of the doctrine demonstrates the weakness of their position.
The fact that Congress is now considering legislation to expressly repeal some or part of the 1926 Act is a telling argument against a position which relies on repeal by implication.
The nature of the Pueblo titles in New Mexico is unique, and by reason of their basic difference from other Indian land titles has necessitated a different statutory treatment. The broad term, “Indian lands,” used in the 1926 Act clearly included the basic lands, and lands otherwise acquired by the Pueblos. It is all-inclusive and New Mexico Pueblo lands of all classifications are subject to the 1926 Act.
The majority says: “At least hypothetically, the 1926 Act would allow complete confiscation of Pueblo lands for the bona fide public purposes of the State of New Mexico.” This is an unusual argument to support a repeal by implication. The opinion seems to be based in substantial part on this argument that the state could take over, “confiscate” all the Pueblo lands. There does not seem to be any basis in the record for such a threat of take-over, and prior attempts by the state to do so are not indicated. There seem to be some 30,000 acres in but one of the tracts over which the right of way passes. The acreage in the other tract is not described. The record does not show how many thousand acres are held by the many other Pueblos in New Mexico. The same “take-over” could be advanced as a reason to prohibit all condemnation. The state thus could take over all lands owned by nonresidents, or all lands owned by sheep raisers or Republicans.
There are, of course, general condemnation statutes enacted by New Mexico, and all owners are subject to the right of condemnation. There is nothing unusual about the existence of such a right, and the need has been established for several hundred years. There is no reason shown why there should be a presumption of some sort against the 1926 Act as the majority seems to assume. The right of condemnation is an essential power to enable a state government to function. There is no reason why a difference should be made based on who may own the land.
I would thus agree with the decision of the trial court.